Tag Archives: FIRST STEP Act

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

DOJ Says It Will Meet First Step Act July 19th Deadline for Risk System, Good Time Calculations – Update July 15, 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.

WHO’DA THOUGHT?

The First Step Act set a hard deadline of 210 days after passage – July 19, 2019 – for recalculating the 7-days-a-year extra good time and for Dept of Justice to adopt a new risk assessment program to be used by the BOP.

deadline190715Now, against the odds, the Attorney General says DOJ and BOP will meet the July 19 deadline for extra good time and adoption of a risk assessment system, despite DOJ blowing the deadline for setting up a risk assessment committee last winter because of the government shutdown.

USA Today and the AP both report that DOJ is expected to lay out the risk assessment rules on July 19, as required by First Step.

Adoption of the risk assessment program is critical, because once it is in place, the BOP then has six months to roll out the programs it identifies as like to reduce recidivism. Eligible inmates taking those programs will earn additional good time at the rate of from 10 to 15 days a month.

No one yet knows what programs will be eligible, but First Step encourages the BOP to be expansive, maybe even including some kinds of inmate employment. Every day I hear from people wondering whether ACE (adult continuing education) or required GED classes or UNICOR employment or even prison orderly jobs will earn extra good time. No one yet knows. But with the risk assessment program in place, the BOP will begin to identify what will and will not count.

July 19th reportedly will see release of about 2,200 additional federal inmates based on the 7-days-a-year good time being awarded for every year of one’s sentence. Fox News reported last Monday that July “will see the largest group to be freed so far under a clause in the First Step Act that reduces sentences due to “earned good time.” In addition to family reunification, the formerly incarcerated citizens, 90 percent of whom have been African-American, hope to get employment opportunities touted by Trump last month at the White House as part of the “Second Chance” hiring program.”

norose190715All is not roses with the earned time program, however. FAMM president Kevin Ring said last week that more attention and money is needed to support the new programs. FAMM is also unhappy that a long list of inmates, including those convicted of terrorism, sex crimes, some gun offenses, some fraud crimes and a few drug offenses will be excluded from qualifying for earned time credits. “There is going to be some frustration,” Ring said.

Acting BOP Director Hugh Hurwitz also acknowledged that the exclusions represent a looming inmate management test for prison staffers. “How do you manage inmates who are getting the credits and those who are not? That will be a challenge as we roll this out,” Hurwitz said.

The roll-out comes at a time when the BOP is grappling with persistent staffing shortages. To make up for a shortage of COs, officials have ordered teachers, nurses, kitchen workers and other staffers to serve as correctional officers. The practice, known as augmentation, draws staff away from the kinds of programs that officials are now touting.

Newly-installed Deputy Attorney General Jeffrey Rosen, who toured FCI Englewood last week, admitted First Step provisions “will put additional demands” on prison staffers. He told USA Today that DOJ was reviewing staffing across the BOP, but he believed that current personnel levels were not jeopardizing safety.

multi190715“Everyone who is trained to work at a federal prison learns to participate in the security role,” Rosen said. “But we’re looking at that and plan to do whatever makes sense.”

A number of advocates, however, have called for stronger oversight of the implementation by both BOP and the AG’s office, and for more funding. “We have concerns it might not be implemented appropriately,” said Inimai Chettiar, legislative and policy director at the Justice Action Network.

USA Today, Roofing, paving, artisanal bread: Feds look to kick-start law that will free hundreds of inmates (July 11)

Aiken Standard, A.G. William Barr, Sens. Graham, Scott laud First Step Act during Edgefield prison visit (July 12)

Associated Press, Around 2,200 federal inmates to be released under reform law (July 13)

Fox News, Thousands of ex-prisoners to reunite with their families this month (July 8)

– Thomas L. Root

Judge Holds Change in Drug Sentence Minimums “Extraordinary” Grounds for Sentence Reduction – Update for July 10, 2019

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We’re back after a well-deserved week off in Iceland (where the country’s five prisons each house about 30 (not a typo) inmates, who make an average of 28,000 ISK ($290.00) a month.

COURT GRANTS COMPASSIONATE RELEASE BECAUSE OF CHANGE IN DRUG MINIMUMS

A Houston federal district judge two weeks ago re-sentenced Arturo Cantu-Rivera to time served, negating two life sentences in a grant of an 18 USC 3582(c)(1)(A)(i) compassionate release motion.

Art was doing time on a drug charged, which had been enhanced by an 851 motion to mandatory life in 1990. The court cited his having completed over 4,000 hours of programming, his tutoring GED classes, his age of 69, and his health, calling all of this an “extraordinary degree of rehabilitation.”

extraordinary190710But as well, the judge noted that the change in the drug mandatory minimums under the First Step Act was part of the “extraordinary and compelling” analysis: “Finally, the Court recognizes as a factor in this combination the fundamental change to sentencing policy carried out in the First Step Act’s elimination of life imprisonment as a mandatory sentence solely by reason of a defendant’s prior convictions… The combination of all of these factors establishes the extraordinary and compelling reasons justifying the reduction in sentence in this case.”

Memorandum Opinion and Order, United States v. Canto-Rivera, Case No. H 89-204 (SD Tex, June 24, 2019)

– Thomas L. Root

Retroactive Crack Sentence Reductions Pass One Thousand – Update for June 12, 2019

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SENTENCING COMMISSION ISSUES CRACK RETROACTIVITY UPDATE

The Sentencing Commission last Friday issued a report on releases under the Fair Sentencing Act retroactivity granted by the First Step Act. Since First Step became law last December, the courts have granted 1,051 crack sentence reductions.

crackpowder160606The breakdown by district shows Middle and Southern Florida, South Carolina and Virginia are the places to be. Those five districts accounted for about 29% of all grants. One third of the 94 districts contributed only  2.5% of the total, with 20 districts not granting a single motion.

What was missing from the USSC analysis was a figure on the number of motions denied, which would have provided a much clearer picture of any discrepancies among the districts in how the Fair Sentencing Act retroactive reductions were being applied.

The sentence reductions averaged 29 months, with the 5th Circuit courts averaging the best at 35.3 months and the 1st Circuit being the worst at 22.6 months. Over 91% of all defendants getting time cuts are black.

U.S. Sentencing Commission, First Step Act of 2018 Resentencing Provisions Retroactivity Data Report (June 7, 2019)

– Thomas L. Root

First Step Tidbits – Update for June 5, 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.

FIRST STEP ROUNDUP

Looking for a Loophole: First Step news from last week: First, a cautionary tale for anyone who thinks there is a magic potion that will make the sentencing changes in the First Step Act retroactive.

loophole190605As with most legislation the First Step Act represents countless compromises. Prominent among those were the deals made on retroactivity. The Act changed 18 USC § 924(c), which punishes people who use a gun in a drug crime or crime of violence with a mandatory consecutive term of five years (if the defendant was just carrying the gun), seven years (if the defendant brandished the gun) or 10 years (if the defendant actually shot it). All of that makes sense. The statute also imposes a mandatory consecutive 25 years on a defendant for a second conviction under 924(c).

The problem was lousy draftsmanship. Congress figured that it you got five years extra for a 924(c) conviction but did not learn your lesson, you ought to get a minimum 25 years on the second conviction. But the provision was written so that any subsequent conviction under 924(c) got you the enhanced time. Say that today you sell some dope on the street corner, with a gun stuffed in your pants. Then, tomorrow you do the same thing. The U.S. Attorney will charge you with two distribution counts and two 924(c) counts, one for each day. Before the First Step Act, you would get a sentence for the drugs, a consecutive five years for today’s 924(c) count, and a consecutive 25 years for tomorrow’s 924(c). That was not the way it was supposed to work, but U.S. Attorneys don’t care what Congress meant. They only care about what Congress wrote.

The First Step Act changed 924(c) to make it clear that the 25 years can be added only if you had already been convicted of the first 924(c) before you committed the second one. Likewise, it changed portions of 21 USC § 841(b)(1) to make the former mandatory life sentence into a 25-year sentence, and the former 20-year sentence into a 15-year sentence. But to sell some of the troglodytes in the Senate (yes, we mean you, Sen. Tom Cotton [R-Alabama]) on supporting First Step, the changes in the mandatory minimums were not made retroactive. Only the 2010 Fair Sentencing Act – which like First Step had the retroactivity taken out in order to rustle up enough support to pass the measure – was made retroactive in First Step.

trog190605Devan Pierson thought he could wriggle through a loophole. He got sentenced to life for a drug distribution case, due to his criminal history and the presence of guns. On appeal, he argued that because the First Step Act had made life sentences into 25-year maximum sentences, his life sentence – which was still on direct review – should be reduced.

Last Friday, the 7th Circuit disagreed. “Subsection 401(c) states that the amendments in that section ‘shall apply to any offense that was committed before the date of enactment of this Act, if a sentence has not been imposed as of such date of enactment.’ In common usage in federal sentencing law, a sentence is “imposed” in the district court… In the First Step Act, Congress chose language that points clearly toward that same result: the date of sentencing in the district court controls application of the new, more lenient terms.”

* * *

Power of the Media: I wrote last week about some district courts holding that reductions in crack sentences under the retroactive Fair Sentencing Act must rely on the “offense controls” theory instead of the “indictment controls” theory. If you are in that kind of fix, it is good to have friends in the media.

In 1994, in the depths of the war on drugs, Sonny Mikell picked up a third federal drug conviction in Florida and was handed a mandatory minimum sentence of life in prison. Although he was only found guilty for 50 grams by a jury, the sentencing judge agreed with the presentence report that held him culpable for 290 grams (for sentencing purposes).

When the First Step Act made the Fair Sentencing Act retroactive, Sonny applied for relief. His sentencing judge granted it promptly, sending Sonny home right from the hearing. But the government appealed to the 11th Circuit, apparently intending to argue that the “offense controls” theory (and the 290 grams) should govern.

Stopthedrugwar.org picked up the story, and ran it week. Citizen Truth republished it. The next day, the government dismissed its appeal without explanation. Citizen Truth may not be Kim Kardashian, but it got the job done.

* * *

You’re My Bestie: Finally, the Daily Beast picked up the story of Rufus Rochell, a man from inauspicious circumstances who befriended Conrad Black when the two were together at FCI Coleman. Black, a wealthy Canadian publisher and friend of Trump, was pardoned by the President a few weeks ago.

bff190605Rufus and Conrad both worked in the education department, Rufus as a law clerk and Conrad as a tutor helping inmates study for their GEDs. “They had conversations about history and education. And they found humor in the subtle absurdities of prison life, such as the thunderous rain that fell whenever inmates were asked to report for lawn duty.”

When Conrad was released on bail after a favorable SCOTUS decision, a rumor spread that he had been arrogant and condescending as an inmate. At Conrad’s request, Rufus wrote a letter refuting the claim, and praising his selflessness.

Now that Conrad has been pardoned, Rufus is hoping for a break through the First Step Act or executive clemency, and is looking to Conrad for support. According to the Daily Beast, nothing has yet been forthcoming.

I have heard a lot of guys being released who promised to send friends money, to keep in touch, even get together after it was all over. It does not often happen. You would hope, however, that when someone is powerful, rich and close to power, especially when he himself has been blessed with good luck, such a promise would not be forgotten.

United States v. Pierson, 2019 U.S. App. LEXIS 16296 (7th Cir. May 31, 2019)

CitizenTruth.org, Why Are Prosecutors Trying to Send a First Step Act Ex-Prisoner Back to Prison? (May 28)

Motion to Dismiss, United States v. Mikell, Case No. 19-11459-G (11th Cir. May 29, 2019)

Daily Beast, Trump Pardoned Billionaire Conrad Black but Left His Prison Buddy Behind

– Thomas L. Root

Fair Sentencing Act Resentencing Takes Ominous Turn – Update for May 28, 2019

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INTRACTABLE PROBLEMS LOOM ON FAIR SENTENCING ACT RESENTENCINGS

A good number of crack defendant resentencings have breezed through district courts since the First Step Act authorized the retroactive application of the 2010 Fair Sentencing Act (“FSA”) to people sentenced for crack prior to August 2010.

The concerns of a few dissident district judges, however, may be gaining traction, jeopardizing future FSA resentencings.

crackpowder160606The problem is this: Just about all of the pre-FSA indictments alleged the defendant had “five or more” or “fifty or more” grams of crack. Back then, five or more bought a defendant a minimum 5 years, while 50 or more was good for a 10-year minimum. But what the indictment alleges is one thing. What the presentencing report says is something else altogether, and the PSR’s amount of drugs (used for setting the Guidelines range) is what the district court usually finds.

On FSA resentencings, some defendants have convinced courts that if the indictment said “five or more grams” of crack, for instance, their sentences should be based on five grams. Some sentences have fallen dramatically as a result.

Dan Blocker argued to his judge that when a defendant seeks an FSA sentence reduction, the relevant question is not how much crack was involved in the offense, but instead only how much was charged in the indictment.

Some other courts have grappled with this argument, but Dan’s court took it by the horns. In an interim decision, the district court complained Dan’s approach – the “indictment-controls” theory – “misreads the statute and is demonstrably inconsistent with Congress’s intent.” The district judge said the First Step Act specified that a sentence reduction is allowed only for a “covered offense,” that is, “a violation of a Federal criminal statute…” Violation of the statute is the criminal conduct, the court said, not the indictment. Thus, the court must follow the offense-controls theory, not the indictment-controls theory.

Comparativecrack190425

The court said the question is what sentence would have been imposed had the FSA been in effect when Dan sold the crack. The answer, the court held, does not turn on what the actual indictment charged, but rather on what it would have charged had the FSA governed the case. The court speculated that if the FSA had been in effect, Count 1 would have charged that the conspiracy involved 280 grams or more, not just 50, and other counts would have charged the higher amounts – 28 grams and 280 grams – listed in the FSA. “The only reason the actual indictment used the lower amounts,” the court said, “was that those were the amounts included in the statute at that time – the indictment tracked the statute.”

The higher amounts might have affected Dan’s decision to plead guilty, the court said, thus requiring a hearing to figure out what Dan might have done in response to what the indictment might have said.

If what the indictment in a pre-August 2010 crack said controlled resentencing, the court complained, “every crack defendant sentenced before the Fair Sentencing Act took effect would be eligible for a reduction…” and the First Step Act would “provide a windfall sentence reduction to pre-August 2010 defendants that people sentenced after 2010 would not get. “Congress could not have intended to treat crack defendants this much more favorably than powder defendants.

The so-called offense controls theory will almost certainly be appealed. Major appeals questions about retroactive FSA resentencings, even if resolved in the defendants’ favors, are likely to result in inconsistent circuit decisions, and could tie up resentencings for a year or better.

United States v. Blocker, 2019 U.S. Dist. LEXIS 79934 (N.D.Fla., Apr. 25, 2019)

– Thomas L. Root

The “Closer to Home” Illusion – Update for May 20, 2019

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BOP DOES NOT HAVE TO WALK 500 MILES

aardvark190520There is not a single inmate in the federal prison system who would not be willing to walk, roll or crawl 500 miles to be home right now. Any no one on the outside is so hard-hearted that he or she cannot concede that housing inmates close enough to family to permit visits does not help with rehabilitation.

For those reasons (if basic humanity were not enough), the First Step Act’s provision directing the Bureau of Prisons to “place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence,” got a lot of coverage when the bill passed last December.

But just as the media buzz that 4,000-plus inmates were going to be dumped on America’s streets the day after the Act passed was wrong, the giddy hopes that inmates were about to be placed near to their families have been tempered by the realities of what the Act says and what the BOP is willing to do.

There is a usually a separation between promise and reality, sometimes a crack and sometimes a chasm. It is probably worthwhile, therefore, to explain just how little Sec. 601 of the First Step Act really promises families and inmates.

Sec. 601 modified 18 U.S.C. § 3621(b) to read that the BOP should try to place prisoners within 500 miles of home. That placement, however, is not required. In fact, it is subject to some pretty big exceptions, being subject to

(1)   bed availability,
(2)   the prisoner’s security designation,
(3)   the prisoner’s programmatic needs,
(4)   the prisoner’s mental and medical health needs,
(5) any request made by the prisoner related to faith-based needs,
(6)  recommendations of the sentencing court, and
(7)  “other security concerns of the” BOP.

Number 7 is a doozy. The placement need not violate a rule, or a BOP program statement, or even a local rule adopted by the sending or receiving prison. It just has to be a “concern.” Whatever that is, it is clearly something to be defined by the BOP.

jello190520Prior to the First Step Act, the BOP required that an inmate be at one institution for at least 18 months, and that he or she have 18 months without a disciplinary report (the BOP called it “clear conduct”) before he or she could be considered for a transfer. Often, transfers were denied because the inmate was deemed to need programming available at his or her current location, or occasionally, because the inmate had skills (a welder, for example, or a GED instructor) the current institution believed it needed to retain. When the transfer came (if it did), the inmate seldom ended up at the institution he or she desired.

In the wake of First Step, however, the BOP is still requiring that an inmate be at one institution for at least 18 months, and that he or she have 18 months without a disciplinary report (the BOP called it “clear conduct”) before he or she could be considered for a transfer. The BOP can still deny transfers for programming needs, perceived mental health needs (which, given the state of mental health treatment in the system, is a hoot), and for lack of bed space (which inmates from years past know to be an excuse that means whatever the BOP wants it to mean). Anything not covered by the foregoing can easily fall within the as-amorphous-as-Jello “security concerns” exception.

But they can’t do that, can they? Of course not. The injured inmate can always that the BOP to court…

Not so fast. Sec. 601 of the First Step Act added a free pass to the BOP: “Notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.” So you don’t like what the BOP did? You can’t sue, can’t even bring a habeas corpus action, can’t even get on Judge Judy. The directive of § 601, detailed in its mandate and limitations, is completely undone by the last line of § 601, which tells the BOP, “if you don’t follow the law, no one is allowed to call you on it.”

wendys190520Imagine a football game like that, where one team gets a yellow flag repeatedly, with each penalty being marched off for zero yards. Or, my preferred fantasy, a diet on which if you succumb to Wendy’s Peppercorn Mushroom Melt Triple with a side of Baconator Fries and large Coke, the 2,190 calories you consume would not keep you from dropping a pound a day. Sweet deal for the BOP.

If the BOP could be sued, the results would not be much different. Courts traditionally give substantial deference to the judgments of prison administrators. Even restrictive prison regulations are permissible if they are “‘reasonably related’ to legitimate penological interests. The BOP would say that its transfer restrictions – like 18 months of clear conduct – serve a legitimate penological goal. The courts, deferring to the BOP’s interpretation of the revised statute and its flexibility granted therein, would undoubtedly accept that.

chevron190520Finally, even without prison-administration deference, courts generally defer to administrative agencies “when it appears that Congress delegated authority to the agency generally to make rules… and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” This is called “Chevron deference,” and – while opponents hope to see the Supreme Court undo it at some point soon – it would easily apply to 18 U.S.C. § 3621(b) as to how the BOP measures bed availability, security concerns, programming needs and mental and physical health needs.

So if the BOP ignores the Act’s 500-mile placement requirement, there is no remedy. Even if there were, BOP rules on transfer and the exceptions to closer-to-home would probably be unassailable.

Sec. 601, First Step Act of 2018, Pub. L. No. 115-015, 132 Stat. 5208, 5238 (Dec. 21, 2018)

Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984)

Turner v. Safley, 482 U.S. 78 (1987)

– Thomas L. Root

BOP Will Calculate First Step Extra Good Time on July 19th – Update for May 6, 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.

JULTEENTH

imageMost everyone knows that “Juneteenth” is an unofficial but increasingly-popular holiday commemorating June 19, 1865, the date on which slavery was abolished in Texas, the last stronghold of the dying Confederacy. When the Texan slaves were declared free on that date, slavery was no longer legal anywhere in North America. 

This year, July 19, will become “Julteenth,” the date on which BOP computers will automatically update sentence records to credit the additional seven days per year good-time that was awarded in the First Step Act last December, crediting federal prisoners retroactively to the start of their sentences. Some prisoners will receive, in one fell swoop, a six months credit on their incarceration.

When First Step passed last December 21st, Congress intended that the seven days be credited immediately. Indeed, opponents and supporters of the bill predicted an immediate flood of federal prisoners released in time for Christmas. Proponents envisioned the happiest of Christmases for many reunited families. Opponents darkly predicted vicious criminals running amok on America’s Yuletide streets. But in the back-and-forth on debating and amending the measure to please some die-hard opponents of any criminal justice reform legislation that suggested common sense, the seven days’ good time got tucked in a section of the bill addressing the new risk assessment system. A subsection of that provision gave the Attorney General 210 days (which worked out to July 19, 2019) to roll out the risk assessment proposal. Broadly written and poorly conceived, the measure hooked the seven days’ additional good time to that section as well.

unintendedconsequences190506The additional good-conduct time was granted because it was what Congress always had intended. Unfortunately, the prior good-conduct time provision in 18 USC 3624(b)(1) but had written so poorly that the Bureau of Prisons was able to interpret it in the most miserly way possible. In irony that would be appreciated had it not dashed prisoners’ hopes so badly, the good time “fix” was screwed up to, enabling the Dept. of Justice to interpret it to delay the seven days’ good time until the risk assessment – which has nothing to do with the seven days’ additional good time – was completed.

Since First Step passed, DOJ has blown through a 30-day deadline for starting the risk assessment adoption process, leading some to speculate on whether it would ignore the July 19 deadline for the seven days’ additional good-time credit as well. Fortunately, BOP last week dispelled that speculation with a welcome announcement that the additional credit would be automatically applied on that date.

Whether the Attorney General will deliver a risk assessment program on July 19th, one that will meaningfully determine risk of recidivism in an efficient and fair way, is another thing altogether. Previously, we reported on the appointment of conservative think-tank Hudson Institute to host the Independent Review Committee, the group that is to recommend a risk assessment program for adoption. In a joint statement released a week ago last Tuesday, House Judiciary Committee Chairman Jerrold Nadler (D-New York) and Subcommittee on Crime, Terrorism and Homeland Security Chairwoman Karen Bass (D-California), sharply questioned the appointment, declaring that “our concerns about this decision remain” even after staff was briefed by the agency.

Under the Act, the IRC’s function is to create independent oversight of the law’s implementation and to ensure that reforms are carried out in a bipartisan and evidence-based manner. First Step directs the DOJ’s National Institute of Justice to “select a nonpartisan and nonprofit organization with expertise in the study and development of risk and needs assessment tools.”

strangelove190506“The Hudson Institute appears to have little or no expertise in the study and development of risk and needs assessment tools,” Nadler and Bass complained. “Committee staff questioned DOJ representatives charged with overseeing First Step Act implementation as to why the Hudson Institute was selected, and were told that DOJ representatives did not know. Staff asked whether the Hudson Institute has ever studied or developed a risk and needs assessment tool, and were told that DOJ representatives did not know. Staff asked on what date the Hudson Institute was selected, and were told that DOJ representatives did not know. Staff asked what process was used to select the Hudson Institute, and again were told that DOJ representatives did not know.”

The suggestion is that political sources out the DOJ (read “the White House”) dictated Hudson Institute’s appointment. “The Hudson Institute and its leadership have opposed sentencing reform and… the First Step Act’s reforms,” the joint press release said. “We are concerned that the selection of a biased organization lacking requisite expertise may reflect a lack of intent to diligently and effectively implement the bipartisan criminal justice reforms passed last Congress.”

Marc Mauer, executive director of the Sentencing Project, agreed. “The Hudson Institute has no interest or expertise in criminal justice policy, and to the extent they do have any opinion about policy, they’re very hostile to the kinds of provisions that are in the First Step Act,” Mauer told Salon magazine. “It’s a strange choice when there are so many other reputable think tanks and organizations that do have experience in these issues.”

Nadler and Bass demanded that The Hudson Institute’s appointment be rescinded, but DOJ sources report that such a move is very unlikely. Of more significance is the question of whether a workable risk assessment system is in place in the next two and a half months, so the BOP can roll out programs inmates can use to earn good-time credits.

In the midst of the flying political fur over Hudson Institute’s involvement, no one is speculating about that.

House Judiciary Committee, Nadler & Bass Statement on DOJ’s Selection of the Hudson Institute to Host First Step Act Independent Review Committee (Apr. 23)

Salon, Is the Trump Justice Department trying to sabotage the First Step Act? (Apr. 28)

– Thomas L. Root

Fake News on Second Step Act – Update for May 2, 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.

JUST FOOLIN’

trumpaprilfool190502President Trump told an April Fools’ Day gathering the White House to celebrate the First Step Act that “I’m announcing that the Second Step Act will be focused on successful reentry and reduced unemployment for Americans with past criminal records, and that’s what we’re starting right away.”

Um… not really.

The Washington Examiner last week quoted White House sources as saying that “there’s definitely not a Second Step Act.” In fact, it appears that Trump wandered off script from the prepared speech, which did not mention a Second Step at all.

Instead, the source is quoted as saying, the White House is focused instead on implementing the First Step Act in a way that denies ammunition to opponents such as uber-critic Sen. Tom Cotton, R-Ark.

cotton190502So far, First Step has not been a roaring success. A drafting error stalled additional “good time” credit for 150,000 federal inmates, creating a likely wave of about 4,000 releases around July. White House officials considered options to move forward the date but ultimately did not. “There’s a lot of concern that they have to get this right. Folks like Tom Cotton are just waiting for someone to do something stupid,” said the source who has worked on White House efforts. “People are going to want to wait and see how this [First Step Act] works out.”

Meanwhile, a broad coalition of groups is pushing for repeal of the federal ban on Pell Grants for incarcerated students, as talks heat up over reauthorization of the Higher Education Act. Those organizations include civil rights groups, religious colleges and conservative organizations, argue that college access for students behind bars is an issue of equity for postsecondary education and also the logical extension of efforts to end mass incarceration.

Since 1994, federal law has prohibited prisoners from receiving Pell Grants, the primary form of need-based student aid. The Trump administration, however, has named financial aid for incarcerated students as a top priority for a new higher ed law.

Washington Examiner, Trump declared he was working on a Second Step Act. The proposal doesn’t exist (Apr. 26)

Inside Higher Ed, The Case for Pell in Prisons (Apr. 22)

– Thomas L. Root