Tag Archives: FIRST STEP Act

New DOJ Sheriff Vows To Clean Up Bureau of Prisons – Update for January 16, 2025

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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.

AG NOMINEE COMMITS TO CORRECT CORRECTIONS

sheriff170802During Attorney General nominee Pam Bondi’s otherwise predictable Senate Judiciary Committee hearing yesterday – where Republicans lobbed softball questions and Democrats demonized President-elect Donald Trump – it was noteworthy that in her brief opening statement she devoted several paragraphs to the Federal Bureau of Prisons.

“Making America safe again also requires reducing recidivism,” Bondi’s statement asserted. “We must fix the Bureau of Prisons and follow through on the promise of the First Step Act by building new halfway houses. The Bureau has suffered from years of mismanagement, lack of funding, and low morale. Federal corrections officers serve in challenging conditions on minimal pay and need more support. Our prison system can and will do better.”

She noted Trump’s “leadership on criminal justice reform” in securing passage of the First Step Act during his last Administration, a piece of legislation with which the President-elect has had a love-hate relationship ever since. Her statement argued that First Step “demonstrates what is possible when a President is unafraid to do things that have been deemed ‘too difficult’ and to reach across the aisle to bring about real solutions. Like the President, I believe we are on the ‘cusp of a New Golden age’ where the Department of Justice can and will do better.”

Further First Step Act success requires reducing how many prisoners commit another offense after they are released, she said. She vowed to reverse the “years of mismanagement, lack of funding and low morale” that plagues the BOP.

Bondi told the Committee, “We have to fix the Bureau of Prisons, and I am looking on both sides of the aisle.”

If Bondi convinces the incoming President that further implementation of First Step can burnish his image, he is likely to support efforts to expand halfway house resources and clean up BOP. This is a President who can be mercurial on criminal justice. Just last weekend, Representative Anna Paulina Luna (R-FL) told Fox News that Trump was “absolutely… supportive” about her set of bills that could have child sexual predators facing the death penalty and would even sign “an executive order levying the death penalty for pedophilia-related crimes but that it would likely be impossible to accomplish that way.”

death200330One can only hope that the incoming President’s grasp of the federal system of governance is sufficient to understand that he cannot change criminal penalties at the stroke of a pen.

Writing in Forbes a week ago, Walter Pavlo noted that Trump’s “hallmark criminal justice reform law, The First Step Act, is still struggling to gain traction. The BOP has accomplished much under Director Peters to implement the program but there are still problems. There is insufficient halfway house and many case managers, the primary BOP employees implementing the program, remain confused over the exact interpretation of the law.”

Opening Statement, Pam Bondi, Nominee for Attorney General of the United States (January 15, 2025)

Washington Times, Pam Bondi, AG nominee, says she will ‘fix’ the Bureau of Prisons (January 15, 2025)

Roll Call, Pam Bondi tells Senate panel she would end ‘partisanship’ at DOJ (January 15, 2025)

Forbes, How Trump Can Shake Up The Bureau Of Prisons (January 6, 2025)

Fox News, Pedophiles could see death penalty under new House GOP bill: ‘Taken off the streets permanently’ (January 14, 2025)

– Thomas L. Root

A Fortnight of Clemencies? – Update for January 14, 2025

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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.

BIDEN’S LAST WEEK (AND TRUMP’S FIRST ONE)

imouttahere250114Although time grows short, the White House has not yet walked back Biden’s promise to issue additional pardons and commutations before he leaves the White House for the last time.

Last week, Truthout.org called on Biden to include in his clemency announcement people serving life sentences under Sentencing Guidelines that have been changed (but the changes not being retroactive). Truthout said, “According to the Sentencing Project, ‘one in seven people in U.S. prisons is serving a life sentence, either life without parole, life with parole or virtual life (50 years or more), totaling 203,865 people’ as of 2021. This is the highest number of people in history — a 66% increase since 2003, the first time the census was taken. Many of these people facing ‘death by incarceration’ were sentenced under guidelines that are no longer used.”

Writing in Forbes, Walter Pavlo last week suggested that consistent with Trump’s desire to trim federal spending, he could double down on First Step Act implementation. Pavlo said, “Trump will likely be frustrated that more has not been done on the First Step Act since his first term in office… The purpose of the First Step Act was to put more minimum-security offenders back home sooner but that has not occurred to the level it could. More prisoners in the community means less reliance on aging facilities that Congress seems unwilling to fund to bring up to acceptable standards.”

creditsign181227Pavlo suggested increased Bureau of Prisons’ use of for-profit halfway houses, besides the network of nonprofit halfway bouses now relied on, and updating the BOP’s security and custody classification system to no longer exclude noncitizens and non-contact sex offenses from camps. As well, he said that the Trump Administration urge Congress to broaden FSA credits to include some of the 68 categories of offenses now prohibited from credits, including some sex offenses, some terrorism charges, threats against government officials and 18 USC § 924(c) gun charges.

Finally, he proposed expanding RDAP eligibility to include those without documented prearrest drug and alcohol use.

Pavlo argued, “The BOP’s challenges are unlikely to be solved through increased funding alone. Instead, the focus should be on fully implementing existing programs like the First Step Act and RDAP, revising outdated policies that hinder efficiency and working with Congress to make targeted legislative adjustments.”

All of this is so, but as a Federal News Network reporter noted a few weeks ago, “I don’t think [the BOP] is high on the Trump team’s agenda, but [it] is a deeply distressed agency.”

Conservative columnist Cal Thomas last week argued that some of the targets of Trump’s desire to save money “are familiar, but one that is never mentioned is the amount of money that could be saved by releasing or not incarcerating nonviolent offenders in the first place… That prison reform has not been on a top 10 list of issues for Republicans is no reason it can’t be added now. Saving money and redeeming a system that no longer benefits the incarcerated or the public is a winning issue.”

Last week, Fox News contributor Jessica Jackson wrote that in 2018, “Trump signed the First Step Act into law, delivering long-overdue reforms that both political parties had failed to achieve at the federal level for decades. It was a landmark moment… Now, as Trump returns to the White House, he has a historic opportunity to finish what he started. Two key reforms he could champion — modernizing federal supervision and expanding second chances — offer a chance to cement his legacy as the leader who transformed America’s approach to justice.”

trumpimback250114However, as of right now, the only criminal justice promise Trump has made is to promise to grant clemency to some or all of the 1,580 people charged or convicted of crimes arising from the January 6, 2021, riot on Capitol Hill.

Truthout.org, Biden Should Go Beyond Commutations for Death Row and Commute Life Sentences Too (January 8, 2025)

Forbes, How Trump Can Shake Up the Bureau of Prisons (January 6, 2025)

Federal News Network, Countdown to Trump II, and what to expect (December 26, 2024)

Washington Times, Prison and sentencing reform: Saving money in an overlooked place (January 6, 2025)

Fox News, Trump defied the odds to win a criminal justice victory in his first term. Could he do it again? (January 6, 2025)

Washington Post, The fate of nearly 1,600 Jan. 6 defendants depends on Donald Trump (January 6, 2025)

– Thomas L. Root

Home Confinement Authority Gathers Dust – Update for November 8, 2024

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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.

HOME CONFINEMENT AUTHORITY AS ‘SHELFWARE’

shelfware241108ABack in the days of the dinosaurs, when computer programs came on CD-ROMs or (even more antediluvian), on stacks of mini-floppies, many of us were familiar with the concept of “shelfware.”

Writing in Forbes last week, Walter Pavlo reminded us that the Federal Bureau of Prisons has its own version of “shelfware,” a provision in 18 USC § 3624(g)(3) that lets prisoners spend their First Step Act credits – days earned for successful completion of programming under 18 USC § 3632 – on sentence reduction, halfway house or home confinement.

When a prisoner has earned enough FSA credits to where his or her remaining sentence equals the number of FSA credits earned, § 3624(g) requires that the BOP use those credits for one or more of the three options provided. The BOP’s practice is to first apply credits to sentence reduction: up to 365 credits can be used to reduce a sentence by a like number of days. The BOP has been diligent about this, and prisoners have been able to watch their sentences shorten on a monthly basis as FSA credits are earned.

Once the sentence reduction has been maxed out at 365 days, the balance of the credits is to be applied to additional halfway house or home confinement. Pavlo points out that “[t]he First Step Act gives the BOP a lot of discretion to place prisoners in the least restrictive, and least costly, confinement.” While the BOP has sole discretion to decide what that confinement will be, but it must be one of the two.

nobrainer241108A BOP decision to use its home confinement authority should be a no-brainer: The halfway houses are filled, causing prisoners to be denied the use of their credits despite their absolute statutory right to them. Home confinement, however, lacks the space limitations (at least not to the same degree).

Unsurprisingly, the BOP has left it home confinement authority on the shelf. As Pavlo observes, the BOP’s “interpretation of the First Step Act at every turn has been to minimize the use of the law to return prisoners to society sooner. The BOP has the law behind it to move thousands more prisoners into the community and to home confinement, if it only had the will to do so.”

Trust the BOP to mismanage things. Pavlo notes that

[p]risoners with 18 months of First Step Act toward prerelease custody should be sent directly to home confinement but they are languishing in halfway houses using resources they do not need. Other prisoners who are not First Step Act eligible and who have longer prison terms, are being passed over for placement in halfway houses in favor of those on First Step Act. The costs are now higher because a prisoner is staying in a higher security prison because there is no halfway house and a minimum security prisoner is stuck in a halfway house when they could be at home.

What he does not mention is that other prisoners entitled by law to the benefit of FSA credits they have earned are being denied halfway house placement because the places are full, in part with prisoners the BOP could move to home confinement.

The BOP could save money, too. When halfway houses monitor people on home confinement, it charges the BOP about half the cost of keeping them in halfway houses. According to the BOP, an inmate in home confinement cost an average of $55.26 per day as of 2020 —less than half the cost of an inmate in secure custody.

Moneyburn170208President-elect Donald Trump, as one of his plethora of promises made during the campaign, said he would slash federal spending. His disdain for anything related to the DOJ is well known. In a November 7 Forbes article, Pavlo said, “[L]ook for an unhappy Trump look for more ways to cut costs at the BOP. In 2018 when Trump made the cuts the BOP’s budget was $7.1 billion. The BOP has asked for $8.6 billion in FY2025 and another $3 billion to bring its facilities up to date. Spending at these levels is simply not going to happen.”

The BOP is required to let prisoners spend their FSA credits. It may be compelled by circumstances and budget to push FSA credit users, especially those who are minimum security and recidivism risk, to home confinement. Even now, doing so would make good sense, which leads commentators like Pavlo to wonder why the agency hasn’t done so.

Forbes, Bureau of Prisons Could Do More To Send People Home, Why Aren’t They? (October 30, 2024)

Dept of Justice, Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 88 FR 19830 (April 4, 2023)

Forbes, The Bureau Of Prisons Under A Trump Administration (November 7, 2024)

– Thomas L. Root

3rd Circuit ‘Lopers’ the Sentencing Commission – Update for November 4, 2024

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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.

WHERE THERE’S A ‘WILL’ THERE’S A ‘WON’T’

chevron230508One of our favorite Supreme Court decisions last June was Loper Bright Enterprises v. Raimondo, a case that punched Chevron deference’s ticket by holding that courts don’t have to defer to agencies’ interpretations of federal law as long as those interpretations are reasonable. Instead, Loper Bright held, courts are in the business of figuring out what statutes say, and they should not defer to a bunch of unelected bureaucrats who often have a vested interest in the interpretations they put on the laws the agencies are supposed to administer.

We saw the dark side of Loper Bright last Friday. The day after the 6th Circuit heard oral argument in a case over whether the Sentencing Commission’s guideline, USSG § 1B1.13(b)(6) – that says an extraordinary and compelling reason for a compassionate release may include an overly-long sentence that could not be imposed today because of a change in the law – exceeds the Commission’s authority.

In the First Step Act, Congress reduced the mandatory minimums for some drug offenses and refined 18 USC § 924(c) to provide that the 25-year minimum for a second § 924(c) offense could only be imposed after a prior § 924(c) conviction. Before First Step, if you carried a gun when you sold pot on Monday and then carried it again when you sold pot on Wednesday, you would get maybe 60 months for selling drugs AND a mandatory consecutive 60 months for carrying a gun on Monday AND a mandatory consecutive 300 months for Wednesday’s gun. Your two-day drug selling binge would have netted you 420 months (35 years) in prison.

retro240506For reasons more political than legal, Congress did not make the changes in drug and § 924(c) mandatory minimum sentences retroactive. But in the years since, some judges found that the fact that some people were serving impossibly long sentences that they could not have had imposed on them after First Step passed could constitute an extraordinary and compelling reason for grant of a compassionate release motion. Other Circuits, notably the 3rd, 7th and 11th, ruled that overly long sentences could not serve as extraordinary and compelling reasons for compassionate release because Congress had not made the changes to the laws that dictated those sentences retroactive.

When the Sentencing Commission finally adopted a new Guideline – § 1B1.13 – a year ago, it included as one of the defined extraordinary and compelling reasons for a compassionate release grant a case where a defendant had a disparately long sentence because of a nonretroactive change in the law. The Dept of Justice began a full-throated attack on subsection (b)(6), arguing that because First Step does not make the changes in § 924(c) retroactive, the Commission was exceeding its authority by letting people do an end run around Congress.

A 6th Circuit panel heard oral argument last week in United States v. Bricker, three consolidated cases in which the government is arguing that subsection (b)(6) exceeds the Sentencing Commission’s congressionally delegated authority. The next day, in United States v. Rutherford, a 3rd Circuit panel held that subsection (b)(6) is invalid.

The Rutherford defendant won a compassionate release after 20 years of being locked up on a 42-year sentence for two armed robberies of a doctor’s office. Citing its right under Loper Bright to ignore the Sentencing Commission’s interpretation of the extent of its authority, the Rutherford panel ruled against Mr. Rutherford based on its belief as to “the will of Congress”:

Subsection (b)(6)… as applied to the First Step Act’s modification of § 924(c), conflicts with the will of Congress and thus cannot be considered in determining a prisoner’s eligibility for compassionate release. Congress explicitly made the First Step Act’s change to § 924(c) nonretroactive… [I]t would be inconsistent with [the] pertinent provisions of the First Step Act… to allow the amended version of § 924(c) to be considered in the compassionate release context because Congress specifically decided that the changes to the § 924(c) mandatory minimum sentences would not apply to people who had already been sentenced.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, criticized the 3rd’s decision. “Besides the non-textual nature of divining the “will” of Congress to rule against a defendant, this holding conflates Congress’s nonretroactivity decisions in the First Step Act with its decision, in the very same Act, to expand access to compassionate release and to keep in place the broad parameters of USSC authority to set terms for compassionate release. There is nothing at all “inconsistent” with Congress saying not everyone should automatically retroactively benefit from a particular change in law and the USSC saying that judges can consider a change in law for a select few pursuing another legal remedy.”

forceofwill241104A cardinal canon of statutory construction holds that where the text of a statute is clear, that’s all that matters. But Rutherford holds in essence that what the court thinks Congress “willed” is more important than what the law Congress passed actually says.

A Fifth Circuit panel has already held that subsection (b)(6) is a legitimate exercise of Commission authority. Prof Berman believes it is “inevitable” that the issue will have to be settled by the Supreme Court.

United States v. Rutherford, Case No. 23-1904, 2024 U.S. App. LEXIS 27740 (3d Cir., November 1, 2024)

United States v. Bricker, Case No. 24-3286 (6th Cir., argument held October 31, 2024)

Sentencing Law and Policy, Based on “the will of Congress,” Third Circuit panel adheres to prior ruling limiting ground for compassionate release (November 1, 2024)

United States v. Jean, 108 F.4th 275 (5th Cir., 2024)

– Thomas L. Root

Better Late Than Never, BOP Comes To The FTC Party – Update for October 7, 2024

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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.

IT’S ALL CONDITIONAL: BOP ANNOUNCES CHANGES IN FSA CREDIT DATES

One of the recurring problems with the Federal Bureau of Prisons’ reluctant implementation of the First Step Act’s system for granting inmates credit for completion of programs designed to reduce recidivism is this: Prisoners are to earn credits as long as they are in BOP custody – including while in halfway house or home confinement – much like good conduct time credit under 18 USC § 3624(b) – but the agency has up to now adopted no system that would capture those latter FSA time credits (FTCs) and apply them to the benefits to which 18 USC § 3624(g) entitles inmates.

bureaucracy241007Instead, the BOP has been refusing to grant FTCs to people within 18 months of their release. It has been as though your employer decided not to pay you for your last month working for him because figuring out your final checks is just too much effort.  Your bureaucracy in action.

Two months ago, however, prisoners’ Sentence Computation forms suddenly included a line for “Conditional Placement Date.”  But nearly as soon as the forms were available, the BOP withdrew the date, claiming an error in calculation. For the last two months, prisoners were denied any documentation of their FSA credit calculations pending further work by the BOP on the subject.

Last Friday, the BOP announced that it will now start calculating three “conditional” dates for inmates. When a prisoner first enters the system, the BOP calculates a release date premised on the inmate earning all of the good conduct time under 18 USC § 3624(b) that he or she could possibly get. Now, the same will be done for FTCs.

The BOP will calculate three dates on a prisoner’s sentence comp sheets:

• FTC Conditional Placement Date: The date when an inmate may be eligible for halfway house or home confinement based on the application of his or her maximum potential FTCs.

• Second Chance Act (SCA) Conditional Placement Date: The date when an inmate may be eligible for release under the SCA, which allows for up to 12 months halfway house placement. SCA eligibility is based on an individualized assessment by BOP staff. Nothing is promised, with SCA placement being anywhere from zero months to a full year.

• Conditional Transition to Community Date: This date is the earliest possible date for transfer from prison to halfway house or home confinement, based on a combination of FTCs and SCA eligibility.

The BOP promises that staff will use these new conditional dates to make release decisions starting 17-19 months before the Conditional Transition to Community Date. The BOP said that “[f]or eligible individuals, this could include recommendations for direct home confinement, bypassing [halfway house] placement where appropriate.”

funwithnumbers170511The BOP warns that “FSA Conditional Release Date is a projected date based on various factors, including continued eligibility for FTCs, participation in programs, and eligibility and appropriateness under SCA.”

Writing in Forbes this past weekend, Walter Pavlo recounted the BOP’s sorry record on FTC implementation, having “been plagued with computer problems to calculate the credits, inconsistent interpretation of the First Step Act and poor communication to the line staff at prisons who are tasked with implementing the programs. The result is that the BOP has held prisoners in institutions longer than necessary and in some cases held them beyond their release date.”

So, hypothetically, someone beginning a 120-month sentence on Jan 1, 2024, would have a good time release date of about July 1, 2032. The first 365 days of FTCs she earned would move that date to July 1, 2031. Between the start of her sentence and July 1, 2031, she would earn 1305 FTCs. After using 365 of those FTCs to reduce her time by a year (under 18 USC § 3624(g)(3)), she would have 940 days left. Those 940 days would let her transition to halfway house or home confinement on about Nov 3, 2028. That date should be her FTC Conditional Placement Date.

Under the Second Chance Act, she could get an additional year in halfway house. That would make her Conditional Transition to Community Date about Nov 3, 2027.

It is close to misfeasance that it has taken the BOP nearly six years from the passage of the First Step Act to finally figure out a system that a kid with an Excel spreadsheet could have accomplished in under an hour. What’s worse is that so many prisoners have been denied their full FTC benefit by an agency hidebound by stasis and contempt for the people entrusted to its custody

beating241007Note that while BOP Director Peters’ kinder, gentler BOP calls inmates “adults in custody,” I do not. When the people locked up in BOP institutions are treated like persons in custody instead of inmates, prisoners, or numbers, I will call them AICs.  For now, the BOP treats them with contempt. Calling them AICs doesn’t change that.

BOP, FBOP Updates to Phone Call Policies and Time Credit System (October 4, 2024)

Forbes, Bureau of Prisons Announces Updates To First Step Act Calculations (October 5, 2024)

– Thomas L. Root

PATTERN System is Close Enough for Government Work – Update for September 5, 2024

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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.

PATTERN AIN’T PERFECT, BUT IT’S GOOD ENOUGH

closeenough240905The National Institute of Justice released its 2023 Review and Revalidation of the First Step Act Risk Assessment Tool last week, suggesting that while there remains fine-tuning to be done, no one should expect any changes in how PATTERN is scored or, for that matter, calculated in next year or two.

NIJ said that the PATTERN recidivism risk tool

remains a strong and valid predictor of general and violent recidivism at the one-, two-, and three-year follow-up periods,” measuring changes in PATTERN scores. The study concluded that “comparisons of recidivism rates by risk level category (RLC) and predictive value analyses by risk level grouping also continue to indicate that such risk level designations provide meaningful distinctions of recidivism risk.

The PATTERN scoring matrix assigns points to prisoner age: the older the prisoner, the lower the points. Lower points lead to lower risk categories. Like golf, the lower the score, the better.

PATTERNsheet220131NIJ conceded that while substantial criticism exists that rigid age brackets make it hard for prisoners to make meaningful changes in PATTERN risk categories, “individuals can change their risk scores and levels during confinement beyond mere age effects. Those who reduced their RLC from first to last assessment were shown to have the lowest recidivism rates, followed by those who maintained the same risk level and those with a higher risk level, respectively.”

Likewise, it conceded that “there remains evidence that [PATTERN] predicts differently across [racial] groups, including overprediction of risk of Black, Hispanic, and Asian males and females, relative to White individuals, on the general recidivism tools.”

Writing in Forbes, Walter Pavlo noted that the NIJ study “confirmed that those with minimum PATTERN scores had a recidivism rate after 3 years of 9.2% for men and 7.4% for women. According to the Government Accountability Office, the overall recidivism average for all prisoners released from BOP is 45%, with men with high PATTERN scores having a recidivism rate of 77.5%, according to GAO. That data shows one of the complicated issues about the First Step Act… those who really need to program to turn their lives around have no incentive to participate in needed programming.”

Pavlo wrote that currently, First Step forces the Bureau of Prisons to “spend hundreds of millions of dollars in programming on those prisoners who are less likely to return to prison anyway. Make no mistake, PATTERN is proving to be a good measure of future success or failure after prison. However, most prisoners in the federal system are going to return to society at some point, dollars may be better spent on a population that needs the programming.”

Pavlo also noted last week in another post that the BOP’s Office of Public Affairs recently reported that the average cost of housing minimum security prisoners “approaches the average cost of housing someone at a US penitentiary.”

money160118“Of the BOP’s nearly 160,000 prisoners,” Pavlo wrote, “24,000 of them are minimum security. The BOP’s statement was that the average cost of housing a minimum security prisoner in 2024 is $151.02. The cost of housing someone in a US penitentiary is $164.87 (Lows were $129.72 and Mediums are $122.50). Since there are more minimum security prisoners than high, the total costs of housing minimum security prisoners far exceeds the costs of housing those in high security….”

NIJ, 2023 Review and Revalidation of the First Step Act Risk Assessment Tool (August 25, 2024)

Forbes, Bureau of Prisons PATTERN Score Reveals Lower Recidivism For Campers (August 27, 2024)

Forbes, The High Price of Minimum Security Federal Prisoners (August 25, 2024)

– Thomas L. Root

Some Short Stuff – Update for August 2, 2024

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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, some short reports for easy beach reading…

shorts240802

SUMMERTIME SHORTS

retro160110Sentencing Commission Retroactivity Decision, Priorities For Next Year Set For Aug 8: At a scheduled Aug 8 meeting, the US Sentencing Commission will decide whether four proposed Guidelines changes to become effective in November will be retroactive.

The four changes for which retroactivity is on the table are

• the acquitted conduct amendment;

• a change to § 2K2.1(b)(4)(B)(i) to provide that the 4-level enhancement gun serial number obliteration applies only if the serial number has been modified such the original number is “is rendered illegible or unrecognizable to the unaided eye;” and

• a change to Commentary in § 2K2.4 to permit grouping of an 18 USC § 922(g) gun count with a 21 USC § 841 drug trafficking count where the defendant has a separate 18 USC § 924(c) gun conviction based on drug trafficking.

• a change in § 2D1.1(a) to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that are not necessarily consistent with 21 USC  § 841(b)(1)(A) or (B).

The Commission will also adopt priorities for the coming year.

US Sentencing Commission, Public Meeting, Thursday, August 8, 2024

‘Dirty Dick’s’ Woes Continue: A superseding indictment handed up last week accused former Bureau of Prisons correctional officer Darrell Wayne “Dirty Dick” Smith of sexually abusing more inmates at FCI Dublin.

Last Thursday, a federal grand jury charged Smith with 15 counts of sexual abuse, including a civil rights violation, against five women in their cells and a laundry facility between 2016 and 2021.. Smith, known to detainees as “Dirty Dick,” had previously been indicted of sexually abusing three female inmates.

He is accused by inmates of actively roaming the prison, seeking out victims, and locking women in their cells until they exposed themselves to him.

L.A. Times, Guard at ‘rape club’ prison faces new charges of sexually abusing inmates (July 26, 2024)

DOJ Sides With Prisoners In SCOTUS First Step Case: The Supreme Court has had to appoint private lawyers to argue the other side of a pending case, Hewett v. United States, asking whether the First Step Act requires a resentencing to apply changes in mandatory minimums favorable to defendants.

goodlawyer240802The Dept of Justice has told the high court that “the government agrees that the best reading of Section 403(b) is that Section 403’s amended statutory penalties apply at any sentencing that takes place after the Act’s effective date, including a resentencing.”

In cases where the government agrees with the petitioner, the Supreme Court appoints a lawyer to argue the other side so that the Court’ decision is based on a thorough examination of the issue. In Erlinger v. United States, decided last month, DOJ agreed with the petitioners that juries should decide whether Armed Career Criminal Act predicate crimes occurred on separate occasions, requiring SCOTUS to appoint counsel to argue against the petitioner. The Court appointed a private attorney to argue the side abandoned by the government.

For Hewitt, the Court appointed Michael H. McGinley, Global Co-chair of the Securities and Complex Litigation practice group for mega law firm Dechert LLP, to argue that First Step does not let defendants benefit from more liberal sentencing terms if their original sentence was imposed before the law passed.

Supreme Court, Order (July 26, 2024)


hardtime240801‘Hard’ Federal Time Converts Another One: Peter Navarro, who completed a 4-month federal sentence for contempt of Congress two weeks ago just in time to be whisked to Milwaukee to address the Republican National Convention, said last week that federal law imposes harsher sentences than necessary for drug offenses.

“The standard that we want to have when we think about the criminal justice system, which I’ve been inside of now and I understand this better, there are bad people doing bad things, but there’s good people doing bad things as well,” Navarro said in a TV interview.

Navarro said that the longer people are in prison, the higher the chance that they will commit more crimes because they have “fewer skills” and “get more angry.”

The Trump advisor also said the costs of housing inmates costs about $60,000 a year per inmate, but that placing people on house arrest or in halfway homes reduces the costs by roughly half.

Just the News, Navarro urges U.S. to be ‘smart’ on crime, not ‘soft’ on crime following prison sentence (July 23, 2024)

– Thomas L. Root

Thinking About a Report… And a Big White Bear – Update for July 15, 2024

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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 FSA CREDIT’S BIG WHITE BEAR

whitebear171129Some say that as a boy, Russian author Leo Tolstoy and his brother formed a club. To be initiated, the aspirant was required to stand in a corner for five minutes and not think about a big white bear. 

[Some say it was first raised by Fyodor Dostoevsky’s Winter Notes on Summer Impressions, an 1863 account of his travels in Western Europe. Choose whichever origin story you like. As crusty old Judge Miller used to lecture us young lawyers, “you pays your money and you takes your chances”].

Last week, the Dept of Justice issued its annual report on the First Step Act, and puts both Tolstoy and Dostoevsky to shame. The Report manages in 50 pages to explore the FSA’s nooks and crannies without ever thinking about (let alone mentioning) the Act’s big white bear: Prisoners are amassing large numbers of FSA credits that they are being denied their right to use because the BOP’s sloth in expanding halfway house capacity has resulted in there simply being no room in the halfway house inn.

There’s a lot in the Report worthy of mention, and I intend to cover more of it this week. But first, a discussion of what the Report does not say.

FSA credits (previously called “ETCs” for “earned-time credits” or “FTCs” for “federal time credits”) are awarded to prisoners for successful completion of evidence-based recidivism reduction programs (“EBRRs,” in the BOP’s acronym-heavy bureaucratic speak). Such credits entitle prisoners to one of two benefits. First, the BOP may (but is not required to) apply up to 365 credits to shorten the inmate’s sentence by up to a year. Second, the BOP shall use any credits not used to shorten the sentence to place the prisoner in a halfway house or home confinement (known as “residential reentry centers” or “RRCs”).

This second option, enshrined in 18 USC § 3624(g)(2), says that “[a] prisoner shall be placed in prerelease custody as follows…”

The problem is that there isn’t nearly enough halfway house space to accommodate people now entitled to longer stays. It’s not like no one saw this coming: inmates have been complaining in my email for a year that they are being denied use of their FSA credits because of a lack of halfway house space. Walt Pavlo wrote about it in Forbes six months ago. NBC reported on it last month.

Unsurprisingly, the BOP has fought hammer and tong against any suggestion that it was violating First Step, arguing in courthouses across America that despite the Act, it had the discretion to decide whether the FSA credits earned by an inmate were gold bullion or play money.

planning240715This brings us to Alphonso Woodley, a BOP “adult in custody” who had amassed a pile of FSA credits (something over 450, even after 365 had been applied to reduce his sentence by a year). The BOP, however, told him he couldn’t be sent to an RRC in the Orlando, Florida, area because there was no bed space. Al said to the BOP, “That’s your problem,” and filed a 28 USC 2241 habeas corpus action.

The BOP rolled out its tired refrain that designation of prisoners to RRCs was its exclusive prerogative. The district court conceded that this was generally true, but where a prisoner had a statutory right to placement, the BOP had no choice. The First Step Act guaranteed Al designation to an RRC under 18 USC 3624(g)(2) as long as he had credits to spend and met the statutory criteria. Everyone agreed Al met the criteria. The judge called that game, set and match.

He wrote that the BOP’s

excuse for delaying petitioner’s transfer to an RRC is that bed space is not available in a particular RRC until September. No such condition concerning bed availability is included among the requirements for eligibility under § 3624(g), however, and thus immediate placement in prerelease custody is nevertheless required under § 3632(d)(4)(C)… That statute uses the mandatory “shall” (as distinguished, for instance, from the provision in § 3624(g)(3) that the BOP “may” transfer a prisoner to early supervised release). Numerous courts have held that the BOP has no discretion to delay or refuse transfer of an eligible prisoner to prerelease custody, which transfer is mandatory.

The court said that the BOP is required by the Act to “ensure there is sufficient prerelease custody capacity to accommodate all eligible prisones,” suggesting that the Bureau’s failure to plan ahead does not excuse its noncompliance with the law. To the court, it was fairly simple:

“Because the BOP’s failure to transfer petitioner to prerelease custody violates federal law, the Court grants the petition for relief.”

whitebear2407715The BOP probably doesn’t like that big white bear, the fact that it is required to deliver on RRC placement despite the agency’s utter failure over five years to ensure that there was enough RRC space. But as Dostoevsky or Tolstoy (or both) figured out, just because you can force yourself to not think about it doesn’t mean it isn’t there.

Dept of Justice. First Step Act Annual Report – June 2024

Woodley v. Warden, Case No 24-3053, 2024 U.S. Dist. LEXIS 87521 (D. Kan. May 15, 2024)

– Thomas L. Root

NBC Reports What Prisoners Already Know About FSA Credit Failure – Update for June 4, 2024

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NBC REPORTS THAT HALFWAY HOUSE CAPACITY INTERFERES WITH FSA CREDITS
Not this kind of halfway house...
Not this kind of halfway house…

NBC News reported Saturday what will come as little surprise to many prisoners who are counting on FSA credits for the additional halfway house/home confinement promised by 18 USC 3624(g)(2): the First Step promise of reward for completing programming is illusory for many people granted more halfway house/home confinement time by the Bureau of Prisons but turned away from halfway houses for lack of space.

Sreedhar Potarazu, who successfully sued the BOP in 2022 over its repeated miscues in calculating FSA credits, alerted NBC to nine cases in which inmates were incarcerated between two and eight months past their “last date inside,” a term that he says denotes when an inmate can be transferred to prerelease custody because of FSA credits they had earned beyond the 365 days that the BOP is allowed to subtract from their sentence.

“Even one life kept in longer is an injustice,” Potarazu told NBC. “The taxpayer should care because they’re footing the bill. You may not have anyone in there, but you’re still paying for it.”

The BOP lists contracts with 145 halfway houses nationwide on its website, and an agency spokesperson told NBC that those halfway houses have more than 10,000 beds. The BOP said more than 8,200 prisoners are designated to halfway houses, but it is not clear how many are in home confinement but supervised by halfway houses.

The BOP is not much help in tracking the problem. The agency admitted to NBC that it keeps no records on how many inmates are losing the benefit of FSA credits already earned because halfway houses are refusing placement.

“Every effort is made to review and adjust available resources within the community so individuals may utilize” time credits, the BOP told NBC News, but that “some areas, specifically populated urban areas, are experiencing capacity concerns.”

bureaucracybopspeed230501The BOP insists that “credits are being calculated as required under the First Step Act.” But NBC said, “As the law has been implemented over the years, concerns have grown about whether time credits are being properly added up and applied as case managers log the information.”

Rep David Trone (D-MD), a member of the House Appropriations Committee, complained, “I always refer to the First Step Act as criminal justice lite,” Trone said. “We need to get real savings and give people real second chances. We haven’t executed the First Step Act properly.”

Writing in Forbes last week, Walter Pavlo argued that the BOP could bypass halfway house for a lot of prisoners and instead place them directly in home confinement. “Many inmates report that due to limitations in halfway house capacity that they are not able to utilize those credits for home confinement and they stay in prison… Overall, this issue of housing inmates in prison longer than necessary, and for which the BOP currently has the power to transfer to the community, affects tens of thousands of prisoners, many are minimum or low-security inmates. The BOP has the ability, but it is up to BOP Director Colette Peters to implement change that is within her power… something she has often spoken about.”

Ames Grawert, a senior counsel for the Brennan Center for Justice, acknowledges the capacity problem but argues that it’s up to Congress to ensure the BOP has the funding to implement the First Step Act and the infrastructure is in place. “Implementation is always a challenge in any law, especially when you’re dealing with a system that’s as complex and with so many issues as the Bureau of Prisons.”

Potarazu, an ophthalmic surgeon, spent at least four additional months in prison after his FSA eligibility date due to an admitted BOP error in calculating the credits. He filed a 28 USC § 2241 petition for habeas corpus in 2022 seeking proper calculation of his credits and designation to halfway house by July 31, 2022, the proper date for the transfer.

runoutclock221227Potarazu’s case was finally ruled on last week, dismissed as “moot” because he was no longer in BOP custody. The Court ruled, “Petitioner’s requested relief—immediate placement in pre-release custody and/or supervised release—has already been achieved” because he was transferred to a halfway house on May 18, 2023” (10 months late) and released from custody on December 22, 2023, “Thus, Petitioner does not maintain any redressable claims and does not satisfy the collateral consequences exception.”

Potarazu told NBC he ultimately wants to see others released when the BOP is legally obligated to do so, and that prisoners shouldn’t have to assume they’re going to remain behind bars longer than they should and go to the lengths of litigation that can take years.

“Even when you have the foresight to do so, you’re still trapped,” he said.

NBC News, Despite First Step Act, some federal inmates remain in prison extra months (June 1, 2024)

Potarazu v Warden, Case No MJM-22-1334, 2024 USDist LEXIS 94086 (D.Md, May 28, 2024)

Forbes, Bureau Of Prisons Stumbles On Reducing Costs On Incarceration (May 30, 2024)

– Thomas L. Root

Peters May Be The One – Update for March 5, 2024

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PETERS BLUNT WITH SENATORS ABOUT BOP TROUBLES

No one who’s ever had a beef with what I publish in this blog – and there surely are a lot of people who have complaints – has ever accused me of being an apologist for the Federal Bureau of Prisons. But here goes…

cucumber240305Watching BOP Director Colette Peters testify before the Senate Judiciary Committee last week was a refreshing departure from her previous appearances and a downright treat after enduring years of painful appearances by her clueless predecessor Michael Carvajal.

“The Feds survey says the Federal Bureau of Prisons is the worst place to work in federal government, so we have a lot of work to do,”  Peters candidly told the Committee last Wednesday during the hearing Committee Chairman Richard Durbin (D-IL) called in response to a DOJ Inspector General report on inmate deaths in federal prison.

That report, issued two weeks before, found that systemic and operational failures contributed to scores of prisoner deaths over the years. Durbin convened the hearing to underscore the report findings that – among others – suicide accounted for over half of the deaths reviewed by the IG.

Sharing the witness stand with DOJ IG Michael Horowitz, Peters was the target of most of the senators’ questions. But unlike her stumbling performances in prior Congressional hearings, Peters was confident, direct and armed with facts and numbers during the 2-hour session. And when Sen John Kennedy (R-LA) hectored her in one of the most bizarre barrage of questions in recent memory, she cooly stared him down while undoubtedly controlling the urge to ask him who tied his shoes for him every morning.

But back to the hearing.

Paters laid most of the blame for the issues raised in the report on BOP’s chronic staffing shortages. She told the senators that the data on BOP correctional officers are “startling,” rattling off the stats:

One in three have symptoms of PTSD. That means more anxiety, more depression, [and] that means more reliance on substance abuse and higher levels of divorce. Over 90% are obese or in the overweight category, over 90% have hypertension or pre-hypertension… What we’re finding across the country, in some places they can leave the [BOP] and work for state corrections and make two to three times more, let alone the bonuses that we’re battling against at fast food organizations. So it is incredibly difficult… I also want to remind the committee that the average onboarding for law enforcement in this country is 21 weeks [of training] and our officers receive about six. It’s truly unfortunate.

psy170427The IG report found that a shortage of psychiatric services employees “strained the ability of staff” in facilities where prisoners died “to provide adequate care to mentally ill inmates.” This has been a chronic BOP problem, where a dearth of mental health resources has led to many people being underdiagnosed, a 2018 Marshall Project investigation found. In the Senate hearing, Horowitz noted that over 60% of people who died by suicide in federal prisons had been on the Mental Health Care Level 1, meaning the BOP had determined that they did not need regular care mental health care.

Peters and Horowitz both pointed to staffing shortages as a key driver of the problems. A lack of clinical staff like psychologists and corrections officers has been an endemic challenge in many BOP facilities, the Marshall Project reported last weekend.

Horowitz also suggested that the BOP’s problems may be more than just staffing. Talking about contraband, he that “we’ve had a staff search policy recommendation open for years that has not been implemented, the basic search policy for staff coming into the facility, that hasn’t happened, either…” Several senators cited a GAO report last month that the BOP has failed to implement 58 of 87 recommendations on improving restrictive housing (also known as Special Housing Units, or SHUs) practices.

Kennedy tried to beat up Peters with a theatrical performance accusing her of using the First Step Act to release 30,000 criminals, 12% of whom have been recidivists (as though the decision when to release prisoners is her responsibility). Punctuating his questions with dramatic eye rolls and sighs of “Wow,” Kennedy sought to blame Peters for releasing thousands of violent criminals to prey on helpless civilians.

Kennedy: “How many criminals have you released under the First Step Act?”

Peters: “We have about 30,000 individuals that have been released since the passage of the First Step Act.”

Kennedy: “All right, so you’ve released 30,000 criminals under the First Step Act, okay? . . . Before you released them, did you contact any of their victims to say, ‘We’re about to let this guy out’?”

Peters: “Senator, it’s my understanding that that notification happens through the U.S. Attorney’s Office, but I will check into that and get back to you.”

Kennedy: “You don’t know?”

Peters: “Senator, I don’t.”

Kennedy: “Wow. Okay, of the 30,000 criminals you let free, how many of them have come back, have committed a crime again, hurt somebody else?”

Peters: “So, that number is one that we’re still looking at as it relates to the recidivism rate for those that were released on the First Step Act.”

Kennedy: “You don’t have any idea?”

Peters: “No, Senator.”

The implication that Peters and the BOP should be responsible for victim notification – a duty of the US Attorneys offices – or maintaining recidivism records is risable. It’s like asking the Veterans Administration how much ammo the Defense Dept has.

tieshoes240305Beyond that, suggesting that somehow Peters was releasing BOP prisoners on her whim, rather than in response to the court-ordered sentences ending or statutory mandates requires a special kind of ignorance of the law unbecoming of a man who was Phi Beta Kappa and with years of experience as a lawyer. That makes his embarrassing performance all the more puzzling.

He did not embarrass Peters, who was calmly unfazed by his attack. Committee Chairman Richard Durbin (D-IL) finally braced Kennedy: “Don’t put your head in a bag… The First Step Act was a constructive reform of the penal system and I think it was a good idea and I stand by it.”

Sen Cory Booker (D-NJ) said the BOP has simply not been provided enough resources. “I have a lot of frustrations obviously with what’s going on. But I’ve watched you now as a professional struggle mightily to meet the demands that are put on you in a moment where Congress is not giving you the resources necessary to do your job,” Booker said.

Sen Chris Coons (D-DE) told Peters that she has “inherited a deeply troubled institution and I suspect you some days feel like your job is more akin to trying to change the direction of an aircraft carrier than lead an agile and well-resourced organization because the BOP is frankly neither and I appreciate the determination, openness and vigor with which you’ve approached this task.”

Almost half of the suicides took place in a “restrictive housing setting,” the IG Report said. Durbin told Peters that “despite the decrease in Bureau of Prisons total population since you were sworn in as director in August of 2022 the percentage and total of number of individuals and restricted housing is actually higher than it was at that time…”

shucell240212Peters said that almost 40%t of those who lived in restrictive housing did so by their own choice. Nevertheless, she admitted that “everyone who is in restrictive housing has or will suffer from some form of mental or physical damage. I think even those that are agreeing or wanting to be in restrictive housing need to be educated on the fact that that isn’t where they belong and that we need to be able to safely house them in [general population]. Just because they’re volunteering to be there doesn’t mean that the physical and mental wear and tear isn’t happening for them as well.”

“It’s time for solutions and change,” Durbin agreed. “The lives of hundreds of Americans in Bureau of Prisons custody are at risk.”

Roll Call, Federal prison director tells senators about staffing ‘crisis’ (February 28, 2024)

Capital News Service, Deaths in federal prisons draw fire from Senate panel (February 29, 2024)

DOJ, Office of Inspector General, Evaluation of Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

The Marshall Project, How Federal Prisons Are Getting Worse (March 2, 2024)

WHBF-TV, Senate Judiciary Committee grills Bureau of Prisons chief on staffing, inmate deaths (February 28, 2024)

Sen John Kennedy, Kennedy questions Bureau of Prisons on early release of criminals: “You don’t have the slightest idea how many of them committed another crime and came back?” (February 28, 2024)

– Thomas L. Root