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House Subcommittee Holds Oversight Hearing on First Step, and Tales Abound – Update for October 21, 2019

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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 TALE OF TWO BOPs

twocities191022At a House of Representatives Subcommittee on Crime, Terrorism and Homeland Security oversight hearing last Thursday on implementation of the First Step Act, it seemed at times that legislators were hearing about two different Bureaus of Prisons. One was staffed by dedicated professionals who were rapidly “developing guidance and policies to ensure appropriate implementation” of First Step. The other BOP was cutting halfway house, providing inadequate programs and “acting in ways that result in lengthier and less productive terms of incarceration despite the obvious will of Congress.”

Dr. Kathleen Hawk Sawyer, the veteran BOP hand brought back from retirement to take over the agency 12 weeks ago in the wake of the Jeffrey Epstein suicide fiasco, told the subcommittee that sentence reductions under the newly-retroactive Fair Sentencing Act has resulted in over 2,000 orders for release, with the release thus far of over 1,500 of those inmates. She told the Subcommittee that BOP “staff also immediately began the challenge of re-programming our Good Conduct Time (GCT) sentence computations to reflect the change. As a result, on July 19, 2019, when the GCT change took effect commensurate with the Attorney General’s release of the Risk and Needs Assessment System, the Bureau executed timely releases of over 3,000 inmates.”

This will come as surprising news to the thousands of people whose sentences have not yet had the revised GCT computations applied to their sentences.

She also reported that since First Step was signed into law, 95 inmates have received compassionate release (although she did not specify how many releasees were recommended by the BOP). She said the BOP has approved 328 inmates for the Elderly Offender Home Detention program, with 242 already on home detention and the balance awaiting placement.

wereonit191022Sawyer Hawk urged the Subcommittee to fund and approve expanded UNICOR purchasing approval, authorizing more agencies, nonprofits and governments to buy UNICOR products. She said UNICOR employment has fallen from 20,000 several decades ago to 11,000 now, but that expansion of the pool of eligible buyers in the First Step Act assured that the number of UNICOR inmate employees would increase.

Sawyer Hawk implied that UNICOR, GED, literacy and drug programs would be among the programs for which earned-time credit was given once the PATTERN risk and needs assessment system was implemented. Apparently, the independent review committee that developed PATTERN also “selected programs to designate as evidence-based recidivism-reduction programs and productive activities,” according to Review Committee member John P. Walters, but neither he nor any other government witness identified what the programs would be.

Sawyer Hawk testified that training of BOP staff is underway for application of PATTERN as well as a yet-undefined system of assessing an inmate’s needs for programming. The suggestion is that BOP staff will select the programs that an inmate can take for earned-time credit according to the individual needs of the inmate for such programming. Sawyer-Hawk said, “The Bureau already has in place a robust Needs Assessment system, and we are working with experts in the field and research consultants to further enhance it.”

Walters tried to assuage concerns about PATTERN, telling the Subcommittee that the commission is working on “somewhat substantial” changes aimed in particular at removing possible bias in the tool. He said the contractors who developed the PATTERN system have run 200 additional hours of analysis at the independent review commission’s direction with the hopes of weeding out bias. “Obviously we want the instrument to be valid, but we also want the instrument to capture real differences and not bias,” Walters said.

A much less rosy picture was painted by New York City Federal Defender executive director David E. Patton and Professor Melissa Hamilton. Patton pointed out that current DOJ data show 49% of federal inmates complete no programs, 82% of such inmates receive no technical/vocational courses or UNICOR employment, and 57% of federal inmates needing drug treatment receive none. “Relatedly,” Patton said, “we are deeply troubled that there is still no needs assessment as required under the FSA, and that the BOP does not expect one to even be available for testing until the second quarter of 2020.”

Hamilton complained that PATTERN was being developed in an opaque process, one in which routine requests for release of the underlying data – something the U.S. Sentencing Commission does as a matter of course – and Freedom of Information Act requests have been ignored. The Brennan Center for Justice “requested release of information on the BRAVO/BRAVO-R tools that the DOJ Report indicates are foundations for PATTERN,” Hamilton testified, “yet were rebuffed because of proprietary claims. This initial assertion of secrecy is deeply concerning.”

casemanagers191022Patton also questioned the BOP’s commitment to halfway house placement. The BOP said in a 2017 memorandum that “due to fiscal constraints,” the average length of halfway house stay was “likely to decline to about 120-125 days.” However, Patton asserted, “anecdotal information from prisons indicates that counsellors have been told to limit the amount of prerelease time in reentry centers to even less than 120 days. At one prison, individuals reported seeing a printed sign on the counsellor’s wall reading: ‘We will put you in for a maximum of 90 days of RRC time, but it will most likely be less. Yes we know what the Second Chance Act says’.”

Rep. David Cicilline (D-Rhode Island), pointedly asked Sawyer-Hawk why people close to release whose dates were advanced by the additional 7 days-a-year good time were not having halfway house dates changed accordingly. Sawyer Hawk expressed surprise, saying that this was not happening throughout the system, and she would look into whether it was happening in New England.

Subcommittee’s questions focused primarily on the heating crisis at MDC Brooklyn, the Epstein suicide at MDC New York, BOP staffing levels nationwide and the PATTERN programming. One noteworthy moment came at the beginning of questions from Rep. Hakeem Jeffries (D-New York). He read a statement from the family of Troy Pine, the man Noel Francisco allegedly murdered in Providence, Rhode Island, several weeks ago. Francisco was released early because of the retroactive Fair Sentencing Act, creating a firestorm of criticism over the First Step Act.

Pine’s nephew urged people not to blame Trump or the First Step Act. “Anyone who speaks my uncle’s name, please speak it in a way that will draw people together, and bring help to people in these communities, including human beings who have been locked up for too long,” Jeffries read from the statement.

A Washington Times column on Saturday agreed: “The First Step Act is working. According to the FBI, the violent crime rate is at its second-lowest point since 1991. As previously stated, thousands of people have returned home as a result of First Step, more than 1,700 releases as a result of the crack cocaine/powdered cocaine disparity provision alone. And this case is the first reported incident of a First Step Act recipient re-committing a serious crime.

“But even one tragedy is one too many, and we still have much work to do. Our system is still broken, and we should focus on reforms that offer second chances, but more importantly, keep us safe.”

House of Representatives Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, Oversight Hearing on the Federal Bureau of Prisons and Implementation of the First Step Act (Oct. 17)

Washington Times, First Step Act is working, but the criminal justice system is still broken (Oct. 19)

Providence Journal, Nephew of Providence murder victim: Don’t blame First Step Act (Oct 18)

– Thomas L. Root

A Lesson in Government – Update for October 17, 2019

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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.

HOW (AND WHY) OUR LAWS ARE MADE

howlawsmade191018Remember government class in high school? Not so much, huh? Back to school time, boys and girls… Here’s a real-life example of how legislation is written:

In 2010, Congress passed the Fair Sentencing Act, reducing the 100-1 ratio of crack to powder cocaine to 18-1. Under the old regime, a defendant with 1 gram of crack cocaine was deemed to have 100 grams of powder cocaine. Because sentences vary in proportion to the amount of controlled substance possessed, a defendant (almost always black) with a slight amount of crack was punished much more severely than a defendant (usually white) with a slight amount of powder coke.

The FSA as proposed would have eliminated the disparity altogether, so that the mandatory minimum for a kilo of powder was the same for a kilo of crack. The House passed the bill with a 100-1 ration reduced to 1-1. But when the bill finally passed the Senate, 1-1 has mystically become 18-1. No one could figure out where the 18-1 ratio came from. Careful deliberation? Scientific studies?

sessions170811“We could find no objective proof that crack cocaine was in fact more dangerous than powder cocaine,” said Sen. Richard Durbin (D-Illinois), sponsor of the Senate version of the bill, explaining the rationale behind the original draft. But then-Sen. Jefferson Beauregard Sessions III (R-Alabama) was opposed to changing the ratio at all, believing that the crime rate was falling because more people were being locked away for a long time (as well as thoroughly enjoying the prospect of those dangerous black criminals from the hood being warehoused in federal prisons for decades on end).

The day the bill was to come up for a committee vote, Durbin ran into Sessions at the Senate gym. Durbin recounted, “I said to Jeff, “come on, Jeff. We can’t just stop the conversation and see this bill die in committee.” said Durbin. “If you won’t do this 1-1 deal, what deal will you do?”

Sessions offered lowering 100-to-1 to 25-to-1. Durbin countered, 10-to-1. No dice, Sessions said.

What about 15-to-1?

“I’ll take 18-to-1,” Durbin recalls as Sessions’ response.

“We moved from 100-to-1 to 18-to-1 because of a conversation in the Senate gym, that is literally how it happened,” said Durbin.

violent160620A further lesson, this one on what influences legislators. It does not matter how many success stories arise from people who got out early because of the First Step Act’s retroactivity for crack defendants. The public will be reminded endlessly of the one failure.

Stories last week continued to highlight Joel Francisco, released on a sentence reduction last spring, who is a fugitive after allegedly stabbing a man to death in a Providence, Rhode Island, hookah lounge. The Providence Journal again noted that “the life sentence was reduced to time served under a bipartisan criminal justice reform law signed by President Trump in December.”

The conservative American Thinker was more graphic:

Cmdr. Thomas Verdi, the deputy chief of the Providence Police Department, who was familiar with Francisco, warned federal officials that the ‘crown prince of the Almighty Latin Kings’ gang… had a ‘propensity for violence…” At the news of his release, Verdi expressed his doubts about Francisco’s rehabilitation. He was right. Last Wednesday, Francisco, 41, stabbed 46-year old Troy Pine to death.

It only takes one failure, and a compliant news media, to poison the public on sentencing reform.

An opinion piece in The Hill this week, however, tried to put the Francisco matter in context: 

[I]f Francisco is guilty of this crime, he is the exception not the norm. Thousands of individuals are being released from custody under the First Step Act, and many more who have worked hard to prove their rehabilitation stand to benefit in the months to come. While it’s still too early to assess how many of these individuals will commit a new offense, there has hardly been a widespread spike in crime.  

The criminal justice system is not perfect; there will always be cases where someone returns to crime after re-entering society. The only way to guarantee that this doesn’t happen – the fear-filled, totalitarian way – is to imprison everyone who commits a crime for life. The pragmatic, limited-government way is to continue reforming the criminal justice system until we’ve achieved a balanced measure of accountability and rehabilitation.

Peoria, Illinois, Journal Star, Sen. Dick Durbin recalls how he and Jeff Sessions struck deal on Fair Sentencing Act in Senate gym (Oct. 10, 2019)

Providence Journal, Heartbroken father urges son, accused of fatal Providence stabbing, to turn himself in (Oct. 9, 2019)

American Thinker, Trump-supported early prison release law draws blood (Oct. 10, 2019)

The Hill, Don’t give up on the First Step Act (Oct. 17, 2019)

– Thomas L. Root

Too Many Questions, Too Few Commissioners – Update for October 16, 2019

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DENIAL HIGHLIGHTS JUDICIAL SPLIT ON COMPASSIONATE RELEASE

compassion160208A key provision of the First Step Act allows federal courts to reduce sentences under the so-called compassionate release statutory provisions of 18 USC § 3582(c)(1)(A)(i) – which establishes an ‘extraordinary and compelling” reason standard – without needing a motion from the Bureau of Prisons. Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that “if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.”

A decision last week in the Southern District of Iowa denying Les Brown compassionate release illustrates the conundrum. Under 28 USC § 994(t), the Sentencing Commission is directed to define “the criteria to be applied and a list of specific extraordinary and compelling examples” for grant of § 3582(c)(1)(A)(i) motions. The Commission defined four examples, one medical, one due to age, one due to family circumstances, and one catch-all (that “there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)).”

Now the problem: The USSC has not updated its definition since the First Step Act passed. Instead, its policy statement still simply guides the Bureau of Prisons (which has traditionally been very resistant to an Sentencing Commission guidance). The new procedure mandated by the First Step Act calls for new guidance, but the Commission remains mute.

noquorum191016Sadly, there’s a reason for the USSC’s quiescence. The Commission cannot amend its policy statement because the agency lost its quorum last December, about two weeks before First Step passed, and it is still two commissioners short of a quorum. The Trump Administration apparently sees the Commission as a backwater for which no urgency exists in nominating replacement commissioners. For the foreseeable future, the Commission remains impotent, and the compassionate release policy cannot not be updated.

Some district courts have concluded this means the Commission lacks any applicable policy statement dictating when a judge can grant compassionate release. These courts have decided that this means the district judge can consider anything — or at least anything the BOP could have considered (whether it did or not) — when assessing a defendant’s motion.

But others have held that First Step merely lets them grant a motion for compassionate release if the BOP Director could have done the same under the guidelines and the old Program Statement. These courts hold that judges may not stray beyond the four bases listed in USSG §1B1.13.

Sentencestack170404Last week’s ruling by Senior Judge Robert Pratt is a thoughtful opinion about compassionate release, issued in response to defendant Les Brown’s motion to reduce his 510-month sentence. That sentence was pumped up by a 300-month second 18 USC §924(c) sentence, one that could no longer be imposed since passage of the First Step Act. While Judge Pratt finds that “much about Defendant’s situation is extraordinary and compelling,” he concluded “the Court cannot exercise its discretion to grant release at this time.”

The Judge calculated that even if First Step let him retroactively reduce the second § 924(c) sentence from 300 months to 60 months (which the Act doe not permit), Les would still face a total of 210 months in prison. As of now, he has served only 167 months, “a long stretch by any measure, and perhaps more than appropriate for Defendant’s crimes. Regardless, because Defendant would still be in prison under modern law, any sentencing disparity created by § 924(c) stacking does not, at least yet, provide an ‘extraordinary and compelling reason’ for compassionate release.”

Judge Pratt suggested that Les could come back at 210 months to make his argument. For what it’s worth, I believe that by then, Congress will have revisited the issue and made the § 924(c) sentencing change retroactive, just as it did with the Fair Sentencing Act’s changes to crack minimums.

Prof. Berman complained that “Judge Pratt refuses to use the legal tool available to him to reduce Brown’s sentence, and so Brown is now still slated to serve nearly another 30 years in prison(!) that neither Congress nor any judge views as in any way justified by any sound sentencing purposes.” He is correct. However, until higher courts resolve the conundrum of the missing USSC guidance (or the Commission regains a quorum, and fixes the statement on its own), the present confusion is going to work to the detriment of a lot of inmates.

United States v. Brown, 2019 U.S. Dist. LEXIS 175424 (SD Iowa Oct. 8, 2019)

– Thomas L. Root

Congress Bought the Gun. Now How About Some Ammo? – Update for September 17, 2019

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MORE FIRST STEP MONEY NEEDED, GROUPS SAY

More funds are needed to implement the First Step Act, a coalition of 14 criminal justice reform organizations told the Senate Appropriations Committee last week, as the Committee begins consideration of the Dept. of Justice budget for the next fiscal year that begins on October 1.

money160118Reformers want the Bureau of Prisons to get the full $75 million annual appropriation that was authorized in the law. DOJ has asked for much less First Step Act money, and so far has not formally asked congressional appropriators to raise the total, Inimai Chettiar of the Justice Action Network (JAN), one of the groups that is pressuring for a higher allocation, told The Crime Report.

“We cannot leave it to the Department of Justice to reallocate existing funds to implement these reforms — spreading thin the already limited resources within the Bureau of Prisons,” the groups told Sen. Jerry Moran (R-Kansas) and Sen. Jeanne Shaheen (D-New Hampshire), the chairman and ranking member of the subcommittee overseeing DOJ spending.

In a separate letter, JAN expressed concern about the proposed DOJ risk assessment tool, called PATTERN, which is currently in final review. PATTERN includes a number of “static and dynamic risk factors” to assess a prisoner’s risk of recidivism. JAN complained that the system has too few dynamic factors, which will make it harder for inmates to make changes that will lower their risk factors.

JAN called for more “dynamic” factors to be incorporated into PATTERN to assess and effectively monitor changes in prisoners’ risks and needs throughout their sentences.

The Crime Report, Reform Groups Seek More First Step Act Funding (Sept. 12)

– Thomas L. Root

Rethinking Clemency with First Step – Update for September 4, 2019

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MORE CALLS TO USE THE FIRST STEP ACT TO END-RUN CLEMENCY

hamilton190904Over 11,400 commutation petitions languish at the Justice Dept.’s Office of the Pardon Attorney, record numbers for a clemency system that America’s founding fathers designed to be, in the words of Alexander Hamilton, “as little as possible fettered or embarrassed.”

An article published last week by Law 360 detailed the precipitous decline in use of federal clemency over the past 150 years, and suggested enhanced use of the sentence-reduction procedure changes in the First Step Act.

DOJ involvement in clemency began during the Civil War, because President Lincoln was overwhelmed by personal visits from “crying mothers and wives of disgraced soldiers” pleading for pardons. By 1898, all clemency petitions were routed through DOJ before maybe getting to the White House. Still, until about 50 years ago, presidents generally granted 13% to 40% of petitions.

Since then, the numbers have fallen to the single digits until President Obama. His 2014 clemency initiative was a public relations victory but a bureaucratic disaster, generating more commutation petitions in a year than OPA had received in the previous 24 years combined.

Despite granting over 1,700 commutations, Obama hardly made a dent in the overall prison population, “There could have easily been 20,000 commutations,” former OPA attorney Sam Morison argued. “That would have been about 10% of the prison population. That would have been historic.” But as it is, Obama left office with over 11,350 commutation petitions still pending.

kardashian190904Morison argues that the clemency power “will never function correctly until that Office of the Pardon Attorney is out of the Department of Justice.” While President Trump’s administration has been studying that idea, nothing has come of the White House roundtable group that has been meeting on the proposal for more than a year. Georgetown University law professor Shon Hopwood, noting Trump’s widely publicized pardons and commutations, said many petitioners will inevitably try “going around the system,” but “it shouldn’t require Kim Kardashian’s assistance to get clemency.”

Hopwood instead has been citing the First Step Act’s expansion of compassionate release as a more accessible option. I have been writing about this sleeper of a sentence-reduction provision for six months (see “Will First Step Let the Holloway Black Swan Swim Again?” Update for March 26, 2019). Such releases are traditionally available only to the elderly and terminally ill, but the statute – 18 USC 3582(c)(1)(A)(i) – says nothing about illness as such. Instead, it simply permits sentence reduction based on “an extraordinary and compelling reason.”

Under the First Step Act, a defendant no longer needs approval of the Bureau of Prisons to file a motion for resentencing with his or her sentencing court.

In a forthcoming law review article, Hopwood writes that judges can consider any “extraordinary” reasons for compassionate release without having to wait for BOP approval. Former US Pardon Attorney Margaret Love calls the concept a “hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention. This has obviated the need for the clemency process to take care of the great majority of commutation cases.”

clemencybacklog190904

Hopwood acknowledges that prosecutors are likely to oppose these motions, but said they could provide a safety valve in which the judiciary simultaneously helps alleviate mass incarceration and the OPA’s commutation workload. And, unsurprisingly, DOJ has argued against Hopwood’s interpretation. In a filing last January, the government said the compassionate release statute “is simply not an avenue by which defendant can secure relief from his sentence based on his post-conviction reform… The relief defendant seeks is instead properly addressed in a petition to the executive branch for clemency.”

Lots of luck with that, the authors write. “The odds of getting presidential relief are approaching zero. The office that granted 41% of all pending and newly filed clemency petitions in 1920 is on track to grant less than 0.1% under Trump…”

Law360.com, How Courts Could Ease The White House’s Clemency Backlog (Aug. 25)

Sentencing Law and Policy, Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems (Aug. 26)
– Thomas L. Root

Fair Sentencing Act Decisions Split the Courts – Update for August 26, 2019

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FAIR SENTENCING ACT LIMITATIONS ISSUE CREATING WIDE SPLIT IN FEDERAL COURTS

In my August 12th post, I noted the unfortunate 5th Circuit ruling in United States v. Hegwood. Hegwood held that a Fair Sentencing Act resentencing under § 404 of the First Step Act was a “limited resentencing,” and required the district court to apply all of the sentencing factors and law that applied at the original sentencing, except for a lower drug quantity offense level.

FSAsplit190826Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog last week that an overlooked district court decision from the 6th Circuit, United States v. Payton, goes the other way on this “important and consequential” issue. Although predating Hegwood by a month, Payton provides a useful perspective on the issue from the other side.

The Payton court noted that a number of district courts have ruled that the First Step Act, read in conjunction with the provisions of 18 USC § 3582(c)(1)(B), does not authorize a full resentencing. “But a growing number of courts have found just the opposite,” the Court said,  “that the First Step Act vests the Court with broad discretion to resentence defendants considering the 18 USC § 3553(a) factors, including the case law and Guidelines in effect today.” The district court cited a number of district court decisions in support of its decision.

crackpowder160606The district court held that “the only way to impose a reduced sentence is to consider the § 3553(a) factors and Guidelines, including the defendant’s record in prison… This interpretation is in keeping with the purposes of the First Step Act which was enacted, in part, to: provide a remedy for individuals subjected to overly harsh and prejudicial penalties for crack cocaine offenses; decrease the number of people caged in our overcrowded prisons largely because of the War on Drugs; and save taxpayer dollars.”

Professor Berman said, “It seems to me quite possible that this issue could be the first (of many?) matters related to the implementation of the First Step Act that makes its way to the U.S. Supreme Court.”

United States v. Payton, 2019 U.S. Dist. LEXIS 110292, 2019 WL 2775530 (E.D.Mich. July 2, 2019)

Sentencing Law and Policy, Another perspective on the scope of First Step Act crack resentencing (Aug 20)

– Thomas L. Root

Are Inmates Soon to be Sexy? – Update for August 9, 2019

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WILL 2020 BE “THE YEAR OF THE PRISONER?”

thumbsup190809Surprisingly enough, 2020 is looking to be the year of the prisoner. Democratic candidates for president are falling all over themselves making proposals for federal sentencing reform, President Trump is claiming that he is the criminal justice reform leader, and – perhaps more important – the news media are questioning prison and sentencing reform like never before.

Criminal justice is expected to be a showcase in Trump’s presidential platform, passage of the First Step Act, hailed by the administration as a legislative victory that, in part, rolls back harsh drug war sentencing from the 1980s and 1990s.

Among the herd of Democrats running for president, Sen. Cory Booker (D-New Jersey) stands out, promising to increase the use of clemency and to seek a law requiring judges to consider early release for aging inmates who’ve served at least a decade in the federal prison system.

Last week, CBS News devoted a long interview to New York University law professor and former U.S. Sentencing Commission member Rachel Barkow, who just wrote a book called Prisoners of Politics: Breaking the Cycle of Mass Incarceration. Covering everything from sentencing reform to her concerns about enough programming to take advantage of the First Step Act, the interview set the tone for the debate.

maxed190809For example, Barkow compared long sentences to “your credit card bill. If you’re in financial difficulty, and you can’t pay your bills, you put them all on your credit card… The next month your credit card bill comes and there’s interest. It gets worse and worse and the longer you don’t pay, the worse things get. Long sentences are like that. While you’re incarcerating people, not only are you not making them better, you’re often putting them in environments where they are likely to become worse.”

The website “Governing,” intended for government officials, ran a piece on prison healthcare last week, noting that “prisoners make up 1 percent of the population, yet they account for 35 percent of the nation’s total cases of hepatitis C. ‘They are the most expensive segment of the population,” says Marc Stern, a public health professor at the University of Washington, ‘and they are the sickest.’ For all the care that inmates need, they’re unlikely to receive adequate medical attention.”

Fortune, Criminal Justice Reform Advocates See Prime Opportunity in 2020 Election (Aug. 2, 2019)

NJ.com, Booker’s right: Paying $60,000 a year to jail one geriatric inmate deserves ‘a second look’ (July 28, 2019)

CBS News, What’s wrong with America’s criminal justice system? 6 questions for an expert (Aug. 2, 2019)

Governing.com, America Has a Health-Care Crisis — in Prisons (Aug. 1, 2019)

– Thomas L. Root

Bringing Forth A Mouse – Update for July 23, 2019

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BOP RELEASES THOUSANDS (FROM SOMEWHERE) LAST FRIDAY

release161117The Dept. of Justice crowed last Friday that “over 3,100 federal prison inmates will be released from the BOP’s custody as a result of the increase in good conduct time under the [First Step] Act.” You’d be forgiven for believing that it had all been DOJ’s idea, and that inmates streamed through the gates of federal prisons, straight from the cell to freedom.

But perhaps First Step merely brought forth a mouse. The problem, according to what I heard from a number of people at different institutions, no one seemed to be leaving.  With over 7,700 people on the LISA email list, I expected over 100 notifications from the BOP that inmates on the subscription list no longer had Corrlinks email accounts, a notice commonly received whenever someone is released and his or her Corrlinks account is closed. Instead, I got only 17.

FAMM president Kevin Ring told the Wall Street Journal that most of the 3,100 inmates released Friday were among the 8,300 BOP inmates already in halfway houses or the 2,200 on home confinement. Thus, the effect of the mass release, while reducing BOP population overall, was not noticeable at institutions. Reason magazine confirmed this, reporting today that “Most were released from halfway houses or home confinement where they were finishing out their sentences..”

Plus, as Mother Jones magazine complained last week, not all of last Friday’s releasees got to go home. “Roughly a quarter of them are not United States citizens,” the magazine said, “and many will instead be sent straight to immigration detention to face deportation proceedings, which could take years.” As it turns out, 900 released inmates were transferred to ICE or state authorities for deportation after being convicted of felonies, a result which predictably enough shocks Mother Jones but has been the law for 102 years, since the Immigration and Nationality Act of 1917.

Most troubling are the numerous reports I have gotten that the BOP has not completed the recalculation of good time for most of the 151,000 inmates still in institutions. One source reported that the BOP is processing each inmate’s new time manually, and that it is able to complete 5,000 a month. The reason for the glacial pace of recalculations is unclear, but it is hard to avoid noting that the BOP has had seven months to prepare for award of the additional good time.

bopmath190723How the agency is unable, after seven months of preparation, to automate recalculation through a rather simple computer algorithm is puzzling.

Dept of Justice, Department Of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk And Needs Assessment System (July 19)

Wall Street Journal, Justice Department Set to Free 3,000 Prisoners as Criminal-Justice Overhaul Takes Hold (July 19)

Bureau of Prisons, Population Statistics (July 18)

Mother Jones, Congress Helped Thousands of People Get Out of Prison Early. But Many of Them Will Probably Be Deported Right Away (July 19)

Reason.com,Tucker Carlson’s Unhinged Rant Against Prison Reform Makes Us All Dumber (July 23)

USA Today, Federal government releases more than 2,200 people from prison as First Step Act kicks in (July 19)

– Thomas L. Root

I Felt The Earth Move Last Friday… Or Did I? – Update for July 22, 2019

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LAST FRIDAY, SOME PRISONERS FROM SOMEWHERE WERE PERHAPS RELEASED (WHO CAN SAY?) AND DOJ ROLLED OUT PROPOSED RISK ASSESSMENT SYSTEM 

Friday, July 19th was the day – a full 210 sunrises after President Trump signed the First Step Act into law. And, as required on that day, the Bureau of Prisons at long last credited federal inmates with the additional seven days per year promised them in the Act, and the  Dept. of Justice  released the risk assessment it proposes to have the Bureau of Prisons use to determine the likelihood that inmates will commit new offenses upon release.

A really big day… or was it?

yellowribbon190722Tie a Yellow Ribbon… Rahm Emmanuel may not have said it first, but he made it famous when he counseled his then-boss, President Obama, to never let a good crisis go to waste. DOJ dragged its feet in setting up a panel to implement the risk assessment model that is at the heart of the First Step Act’s earned time credit program (which lets federal prisoners earn extra time off their sentences for successfully completing programs that reduce recidivism). The Department as well fought hammer and tong to avoid crediting inmates with the extra good time Congress always meant them to have (but did not because DOJ interpreted a poorly-written statute as harshly as possible), an error corrected in First Step. And DOJ has opposed countless motions under the newly-retroactive Fair Sentencing Act for reductions of draconian prison terms.

Nevertheless, when faced with a July 19 deadline even it could not deny, DOJ did not miss the chance last Friday to trumpet its successes under First Step, chief among them that “over 3,100 federal prison inmates will be released from the BOP’s custody as a result of the increase in good conduct time under the Act. In addition, the Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 1,691 sentence reductions.”

tsunami190722So where was the flood of prisoner releases at the end of last week? As I heard from  people at a dozen or more institutions, no one seemed to be leaving. This was corroborated by my own observation. With over 7,700 people on the LISA newsletter email list, I expected over 100 notifications from BOP on Friday of people whose Corrlinks email accounts were closed because they had been freed (such a notice is sent whenever someone is released and his or her Corrlinks account is closed). Instead, I got only 17 such messages.

Here’s what happened. As FAMM president Kevin Ring told the Wall Street Journal,  most of the 3,100 inmates released Friday were already among the 8,300 BOP inmates in halfway houses or the 2,200 people on home confinement. Thus, alleged tsunami of prisoner releases – while reducing BOP population overall – was a barely-noticeable ripple at the institutions.

Plus, as Mother Jones magazine complained last week, not all of last Friday’s releasees got to go home. “Roughly a quarter of them are not United States citizens,” the magazine said, “and many will instead be sent straight to immigration detention to face deportation proceedings, which could take years.” As it turns out, USA Today reported, 900 released inmates were transferred to ICE or state authorities.

tortoise190722Inmate Sentence Recomputation More Tortoise Than Hare…  More troubling are the numerous reports I have gotten from inmates and their families that BOP has not yet completed the recalculation of good time for most of the 151,000 inmates still in institutions. One inmates father reported that the BOP’s Grand Prairie, Texas, Designation and Sentence Computation  Center told him that the agency is processing each inmate’s new time manually, and that it is able to complete no more than 5,000 a month.

The reason for the glacial pace of recalculations is unclear, but it is hard to avoid noting that the BOP has had seven months to prepare for award of the additional good time. How the agency is unable, after seven months of preparation, to automate recalculation through a rather simple computer algorithm is puzzling.

recid160321I see a PATTERN Here… One of First Step’s marquee accomplishments is to establish a system that ranks each inmate’s risk of being a recidivist, and then tracks that risk throughout the inmate’s sentence. The inmate (unless he or she falls in one of the 60-plus “ineligible” categories) may take programs identified by the BOP as proven to reduce recidivism, and get up to 15 days credit a month for doing so. The credit may be used to reduce the length of his or her incarceration by up to 12 months, and beyond that, to earn the inmate extra halfway house or home confinement time.

Before the program is implemented, the DOJ must adopt a system to rank prisoners’ recidivism risk. On the last afternoon of the 210-day period First Step gave DOJ for doing so, it unveiled its proposed system, which goes by the unwieldy name “Prisoner Assessment Tool Targeting Estimated Risk and Needs.” Luckily, the name collapses conveniently into the acronym “PATTERN.”

PATTERN will classify a BOP prisoner into one of four Risk Level Categories (“RLCs”) by scoring him or her in much the same way security and custody levels are calculated by the BOP. PATTERN does this by assigning points in 17 different categories. The highest possible score (like golf, no one wants a high score) is 100. The lowest score is -50.

PATTERNB190722

This is roughly how it works: PATTERN has four different predictive models, 1) general recidivism for males; 2) general recidivism for females; 3) violent recidivism for males; and 4) violent recidivism for females. The Report noted that the base recidivism rate for all offenders is roughly 47% for general and 15% for violent recidivism.

The categories in which points are scored include (1) age of first conviction, (2) age at time of assignment, (3) prison infractions, (4) serious prison infractions, (5) number of programs completed, (6) number of tech or vocational courses completed, (7) UNICOR employment, (8) drug treatment, (9) drug education, (10) FRP status, (11) whether current offense is violent, (12) whether current offense is sex-related, (13) criminal history score, (14) history of violent offenses, (15) history of escapes, (16) voluntary surrender, and (17) education.

Generally, any score of -50 to +10 is a minimum recidivism risk, 11 to 33 is a low recidivism risk, 34 to 45 is a medium recidivism risk, and 46 or higher is a high risk. Its designers say “the PATTERN assessment instrument contains static risk factors as well as dynamic items that are associated with either an increase or a reduction in risk… PATTERN is a gender-specific assessment providing predictive models, or scales, developed and validated for males and females separately. These efforts make the tool more gender responsive, as prior findings have indicated the importance of gender-specific modeling.”

This means that as an inmate goes without getting disciplinary reports for infractions of prison rules, completes programs, keeps up with payment of fines and restitution, takes drug classes and gets older, his or her RLC category should fall. Even high and medium RLCs can earn credit for taking programs at the rate of 10 days per month, but once the RLC falls to low, that rate increases to 15 days per month.

PATTERNA190722So what BOP programs will build earned time credit? No one has said yet, but the PATTERN report offers clues. The PATTERN categories suggest that UNICOR employment, drug classes, GED and vocational programs ought to count, given PATTERN’s emphasis on importance of completion of those courses in the point system.

PATTERN is not yet a done deal. What happens next is a 90-day public comment period on PATTERN rules. Final rules will issue by Thanksgiving, with BOP staff being trained in applying PATTERN. Do not expect any PATTERN assessment to be done for real until Martin Luther King Day.

Dept. of Justice, Department of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk And Needs Assessment System (July 19)

Wall Street Journal, Justice Department Set to Free 3,000 Prisoners as Criminal-Justice Overhaul Takes Hold (July 19)

Bureau of Prisons, Population Statistics (July 18)

Mother Jones, Congress Helped Thousands of People Get Out of Prison Early. But Many of Them Will Probably Be Deported Right Away (July 19)

USA Today, Federal government releases more than 2,200 people from prison as First Step Act kicks in (July 19)

Dept. of Justice, The First Step Act of 2018: Risk and Needs Assessment System (July 19, 2019)

– Thomas L. Root

Final Efforts Fail to Force BOP to Apply Additional Good Time Before July 19 – Update for July 17, 2019

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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.

LAST-SECOND HAIL MARY ON GOOD TIME BATTED DOWN IN D.C. COURTROOM END ZONE

hailmary170613Sadly, football preseason is still a few weeks away, but that did not stop the New Civil Liberties Alliance, a D.C. legal foundation dedicated to fight federal agency infringement of liberties, from unloading a “Hail Mary” in its suit against the Federal Bureau of Prisons on behalf of an inmate late last month.

NCLA argued that its client, Robert Shipp, is due to be released in November under the old good-time calculation. But under the First Step Act, the extra good time he will get should have let him out in June. Even though he was due to be released from custody last month under a change in federal law, NCLA argued, “the BOP has refused to release him while it waits until July 19, 2019 to apply the new law at its discretion. There are some 4,000 federal prisoners like Shipp across the country who sit in limbo at BOP’s mercy.”

In the Washington Examiner last week, NCLA’s attorney said, “Each day the BOP ignores Congress’ orders, thousands of people continue to be held beyond their lawful release dates, away from their families. BOP is stealing time from them that they will never get back. Agencies like the BOP cannot wait until they find it convenient to follow the law; they should uphold the law and give people the good time credit they have earned.”

judge160229Unfortunately, life imitated sport. NCLA’s request for the emergency order was denied last week. With the clock running out, NCLA filed a motion for an emergency order telling the BOP to calculate the extra good time immediately. The judge held:

Shipp asserts that delaying the effectiveness of the amendment “makes no sense in light of the clearly stated Congressional intent to rectify the BOP’s previous actions in calculating good time credit.” He urges the application of the rule of lenity in his favor because “[a]t worst, the statute is silent as to the effective date for t[he]… good-time fix provision.” And he points to the legislative history of the act, which he contends shows that the good time credit amendment was intended to be effective immediately. But while it is sympathetic to Shipp’s position, the Court cannot agree with his interpretation of the Act. The statutory text clearly points to a single possible interpretation, which trumps any contrary indication of Congressional intent or in the Act’s legislative history. It may be that Section 102(b)(2) was inartfully drafted, and does not reflect what Congress intended in amending 18 U.S.C. § 3624(b). But even if that were the case, “[i]t is beyond [the Court’s] province to rescue Congress from its drafting errors, and to provide for what [the Court] might think… is the preferred result.” Having determined that Section 102(b)(1)(A) is not yet effective, and thus that Defendants are not unlawfully failing to comply with their obligations under 18 U.S.C. § 3624(b), the Court finds that Shipp’s claim is unlikely to succeed on the merits and it denies his emergency motion for injunctive relief.”

Memorandum Opinion and Order, Shipp v Hurwitz, Case 1:19-cv-01733-RC, 2019 U.S. Dist. LEXIS 113096 (D.D.C. July 9, 2019)

Washington Examiner, Despite sentencing reform, the US Bureau of Prisons is holding thousands of inmates illegally beyond their release dates (July 8)

– Thomas L. Root