Tag Archives: FIRST STEP Act

No One Much Cares About the ‘Seven Days’ Debacle – Update for February 25, 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.

BAD NEWS, GOOD NEWS

fishbicycle190225The bad news: We have already reported in detail on the error in the First Step Act that accidentally tied the effective date for the additional seven-days-a-year good-conduct time for federal inmates to the effectiveness of the earned-time credits, a pairing that makes as much sense at relating a fish to a bicycle.

Although there has been a hue and cry from all of the usual advocate-suspects, no one has owned up to the blunder, let alone taken steps to fix it.

I’m not often right, but I predicted a month ago that Congress would be uninterested in doing anything to correct the sloppy drafting. This is because Congress, as an institution, addresses a problem once, happily concludes that the problem is all fixed, and then moves on to the next problem. Criminal justice and prison reform got their moment in the sun with passage of First Step. It will be a long time before Congress comes back to the issue. That is all the more true here, because the drafting gaffe will remedy itself in July, when the seven-day credits take effect.  Some prisoners who should be home now will surely suffer, but that’s hardly an effect that will fire the imagination of Congress, especially the Senate leadership. 

And more: Law professor Nora V. Demleitner, editor of the Federal Sentencing Reporter, complained last week in The Hill that new Attorney General William Barr is no reformer. “Congress should have demanded an attorney general committed to decreasing the federal prison population, improving re-entry, and limiting prison sentences for minor offenders… an attorney general committed to the spirit of the [First Step] Act. Instead it settled for someone who will interpret it as narrowly as possible and implement it grudgingly.”

retro160110The Good News: Speaking last week at a crime symposium, Koch Industries general counsel Mark Holden identified three priorities for the next federal prison reform legislation. Holden, who was point man for Koch Industries’ backing of First Step, said that congress first should apply First Step’s sentencing changes retroactively – the 18 USC 924(c) destacking provision, the reductions in mandatory minimums under the drug trafficking statute, and “safety valve” qualifications.

In addition, Holden called on Congress to codify the Supreme Court’s Brady v. Maryland ruling requiring prosecutors share all of the information that they have about the alleged crime with the accused at the outset the case, and to adopt a clearer and more stringent mens rea rule. Also, he urged the Trump administration to reform the executive clemency process and then to apply it to “create second chances for people who wouldn’t necessarily qualify for relief under the First Step Act.”

Meanwhile, a push is on to again make Pell Grants available for prisoners. Complaints that hard-work Americans were paying for criminals to go to college cauaed Congress to prohibit issuing prisoners Pell Grants, which provide students with financial need aid for college. Without Pells, the number of prison college programs plummeted from 772 to just eight by 1997.

In 2015, the US Dept of Education started a pilot program, allowing some colleges to use Pells to increase access to college courses in prison.

education180509Last week, a conservative magazine called on Congress to expand Pell grants to prisoners nationwide. “Such programming brings gains for both prisoners and public safety,” the American Conservative said, “rebuilds families, is fiscally prudent, and acknowledges the individual dignity of those in prison.”

It may happen. There has been bipartisan support for legislation to reinstate Pells for prisoners. Sen. Lamar Alexander (R-Tennessee), chairman of the Senate Education and Labor Committee, has hinted the change may be part of reauthorizing the Higher Education Act. “Most prisoners, sooner or later, are released from prison, and no one is helped when they do not have the skills to find a job,” Alexander said last year. “Making Pell Grants available to them in the right circumstances is a good idea.”

The Hill, Barr confirmation reveals shallowness of congressional commitment to justice reform (Feb. 19)

The Crime Report, The First Step Act: It’s Only a ‘First Step’ (Feb. 18)

American Conservative, Sending Our Prisoners to College (Feb. 21)

The Intercept, How The Federal Government Undermines Prison Education (Feb. 18)

– Thomas L. Root

Unintended Consequences – Does First Step Act Open Up 8th Amendment Argument? – Update for February 18, 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.

DOES FIRST STEP OPEN WINDOW FOR 8TH AMENDMENT CLAIM ON HARSH GUN SENTENCES?

Ohio State University law professor Doug Berman asked this interesting question in a post on his Sentencing Law and Policy blog last week.

Prof. Berman noted that First Step Act Sec. 403, “described as a ‘clarification of Section 924(c),’ eliminates the required “stacking” of 25-year mandatory minimums for multiple 924(c) counts at the same time… Sadly, Congress did not make Section 403 of the First Step Act retroactive, and thus defendants previously subject to these extreme stacked sentences will get no direct relief from the new Act.”

Sentencestack170404In 2010, Wendell Rivera–Ruperto was paid by undercover FBI informants to serve as “armed security” at six fake drug deals, and received a 162-year sentence, of which 130 years were for his six stacked 924(c) convictions. In a 1st Circuit decision last year, Wendell was denied rehearing en banc despite one judge’s complaint that courts “have no choice but to approve mandatory ‘forever’ sentences… so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was [so] serious…” The dissenting judge hoped for Supreme Court review.

SCOTUS has incorporated a proportionality analysis into the cruel and unusual punishment analysis required in capital cases. In Harmelin v. Michigan, the defendant asked the Court to extend the reach of that analysis to noncapital cases such as his life sentence for 650 grams of cocaine. Five Justices agreed that Harmelin’s sentence was not unconstitutionally cruel and unusual, but six Justices agreed that the Cruel and Unusual Punishment Clause bore some kind of proportionality analysis. Among those six, three supported a proportionality principle that deferred to legislative judgments, while three others supported a more searching proportionality analysis that would have struck down the mandatory life sentence.

cruel190218This Friday, the Justices will consider whether to review the case. “Notably, and not surprisingly,” Prof. Berman wrote, “the feds now say in opposition to cert that passage of the First Step Act reduces the important of the case: ‘future defendants in petitioner’s position will not be subject to mandatory consecutive sentences of at least 25 years [and the] question presented by his case therefore has diminishing significance’.” But “the fact that the 8th Amendment is supposed to take guidance from an ‘evolving standards of decency’ and be responsive to a ‘national consensus’ against a sentence, I strongly believe the enactment of the First Step Act primarily operates to make Wendell Rivera–Ruperto’s constitutional claim even more substantively potent.”

Justice Kennedy’s retirement last summer creates a window of opportunity for advocates to urge overturning (or cutting back) Harmelin’s 8th Amendment precedent. “Thus,” Berman said, “I am rooting super hard for the Justices to grant cert in Rivera–Ruperto.” Grant of cert in this case, which Berman calls “potentially the biggest non-capital Eighth Amendment case in a generation,” might open other stacking cases to 8th Amendment review.

Sentencing Law and Policy, Doesn’t the FIRST STEP Act add juice to Eighth Amendment challenge to extreme stacked 924(c) sentence in Rivera-Ruperto? (Feb. 10)

Rivera-Ruperto v. United States, Case No. 18-5384 (Supreme Ct.)

– Thomas L. Root

News of the (Good) Weird – Update for February 11, 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.

SOME RUMORS ARE STRANGE ENOUGH TO BE TRUE
Did you hear about Mark getting released by his judge?
Did you hear about Mark getting released by his judge?

I hear from a lot of people, and unfortunately, most of what I hear is rumor. So I was skeptical last Friday when a guy at FCI Big Springs reported a friend of his had just gotten released on his recalculated 54 days of good time.

You should remember that in the First Step Act, Congress clarified its intent from 30 years ago that federal inmates receive 54 days of good-conduct time per year. Previously, the provision was so poorly written that the Bureau of Prisons read it to mean that after 365 days, a prisoner would get an award of 54 days. What Congress meant was that 311 days of good conduct, an inmate would be awarded 54 days (which would make a year).

What’s the difference?  Seven days a year, which the First Step Act made retroactive to the beginning of the current  sentence.  I talked to one inmate at the end of his 23-year sentence who is in line to get an additional five months off. Instead of being home for Thanksgiving, he’ll be there for July 4th.

Or he would have been. But in correcting its prior screw-up, Congress committed a new one: the effective date for the seven days additional good time was placed in the wrong section of First Step (Section 102(b)(1)(A), along with the earned-time credits). Congress intended that the earned-time credits become effective only after giving the Attorney General time to adopt a risk assessment algorithm. But it neither intended nor saw a need to delay application of the additional seven days, which the BOP can apply to inmates’ sentences with the push of a button.

Screwup190212Despite its intent, Congress goofed, so that instead of taking effect when the First Step Act was signed, the additional good time will not be effective until July 19, 2019. This has made a mess of halfway house and release dates for a lot of people whose date would have moved by weeks or months. Just last week, Mother Jones reported that “4,000 prisoners who hoped to be out for the holidays remain stuck behind bars waiting for answers.”

So when I heard on Friday that federal prisoner Mark J. Walker had been given his extra good time and immediately released by a Federal District of Oregon judge, I doubted it.

It happened.

There is a lot of story to this case, such as what drove Mark’s public defender to file the motion, that I just do not know. But file the PD did, delivering to the Court a 14-page petition for writ of habeas corpus on Jan. 25 that argued the only rational interpretation of the First Step Act was that the Sec. 102(b)(2) 210-day delay applied only to the new extra time credit and not to the seven days additional good time. Plus, the PD argued, delaying the effectiveness of the extra seven days violated due process by being arbitrary and capricious, and Mark’s immediate release was necessary to avoid irreparable harm.

The argument is creatively, innovatively weird. The government’s response, on the other hand, was just plain weird. The AUSA chose to ignore Mark’s substantive arguments, instead opposing the petition solely on the ground that the Oregon court lacked jurisdiction, and that Mark should have filed in the Northern District of Texas, where he was confined.

release161117Last Thursday, an Oregon federal district court ruled that “given the Government’s failure to address the merits… and the equities of the situation” it would grant “the relief requested… without a final determination of the merits of the legal issues raised by Defendant.” Senior US District Judge Ralph R. Beistline ordered the BOP to recalculate Mark’s sentence and to release him “without delay if the recalculation confirms that the Defendant’s term of imprisonment has expired.” Mark was released the same day.

By its terms, the decision is not intended to rule on the merits, and as a district court order, it lacks precedential value, but it is a creative and audacious filing that let Mark go free two months before he otherwise would have.

Order, United States v. Walker, Case No. 3:10-cr-00298 (D.Oregon, Feb. 7, 2019)

Mother Jones, Trump’s One Real Bipartisan Win Is Already Turning Into a Mess (Feb. 5)

– Thomas L. Root

Employers Commit to Hire Felons After First Step, But Much Remains to be Done – Update for February 4, 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.

HOUSEKEEPING CONCERNS, LOWER EXPECTATIONS, AFTER FIRST STEP

Now that the First Step Act is law, the question becomes what is next at the federal level and what policy innovations can state governments develop to continue the national momentum toward a more efficient and effective justice system.

Rosie190204The next order of business, according to The Hill, is for the Senate to confirm William Barr as Attorney General. Barr would be responsible for selecting a new director for the Bureau of Prisons, as well as for ensuring that the BOP accurately administers the codified risk assessment system for low-level, non-violent offenders who are eligible for release, and provide these inmates with the programs required by the Act. The statutory deadline for adopting the risk-assessment system is five and a half months away.

While the sentencing reforms contained in the First Step Act were secondary to the prison reforms that are to be administered by the Dept of Justice, further sentencing improvements are possible through the U.S. Sentencing Commission. However, the Commission has lacked a quorum since last December. The acting chair, Judge William Pryor of the 11th Circuit, is currently awaiting renomination by the White House and confirmation by the Senate. Until the Commission gains two more commissioners, it will be unable to adopt any Guidelines amendments. The Commission customarily issues amendments every April, which become effective November 1st unless Congress vetoes them ahead of time. Only twice in its 30-year history has the Commission failed to adopt any Guidelines amendments. The most recent time was 2017, when the Commission – as it does now – lacked a quorum.

Meanwhile, conservative billionaire industrialist Charles Koch, who spearheaded business support for First Step, has challenged a broad coalition of business groups is to hire workers with criminal backgrounds in the wake of First Step’s passage.

Koch has enlisted the support of the Society for Human Resource Management, the U.S. Chamber of Commerce, the National Retail Federation, the National Restaurant Association and the American Staffing Association. Together, the groups represent businesses that employ roughly 60% of the American workforce.

First Step made changes in the 2010 Fair Sentencing Act retroactive, allowing an estimated 3,000 people still serving long convictions for crack cocaine to petition for a reduction in their sentences. The provision allowed Matthew Charles, whose case was widely publicized in 2017, to exit prison at the end of 2018. Michael Holley, a federal defender who worked on Charles case, said that Charles was an ideal candidate for sentencing reduction, and his case was ideally positioned to be heard right away.

release160523“It was all primed for the government to look at,” he said. “We’d had all this litigation in the past year… so the judge was fully aware of his case and the prosecutor was fully aware of the case.” The government responded to the Charles petition ahead of the deadline to indicate no opposition the Charles’ request, Holley said, allowing him to get out even more quickly.

For other people, the process will take longer. The Federal Public Defenders Offices nationally have compiled a list of people in their records who might be able to benefit from the law, and attorneys in the office are reviewing the cases for anyone they find to be eligible.

Prosecutors are able to contest a defendant’s eligibility, and can argue that an individual does not deserve a sentence reduction, meaning the process, like 18 USC 3582(c)(2) proceedings, may get protracted.

The Hill, Federal criminal justice reform is now law: What comes next? (Jan. 26)

Law360, For Inmates, Sentencing Reforms Bring Hope And Frustration (Jan. 27)

CNBC, Koch network leads coalition urging businesses to hire former inmates (Jan. 27)

– Thomas L. Root

Fair Sentencing Act Retroactivity Benefits Are Broad – Update for January 31, 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.

FAIR SENTENCING ACT RETROACTIVITY HELPING CAREER OFFENDERS, TOO

Section 404 of the First Step Act, which authorizes the retroactive application of the 2010 Fair Sentencing Act to people sentenced for crack cocaine offenses before its enactment, is already opening the jailhouse door for some inmates.

... had nothing on crack hysteria.
… had nothing on crack hysteria.

Prior to 2010, crack cocaine was treated by the law with a level of hysteria that made “reefer madness” seem rational. A defendant caught with 10 grams of crack was treated as though he had a kilo of powder cocaine. The Fair Sentencing Act, passed in 2010, reduced this 100:1 ratio of crack to powder to 18:1, a ratio still untethered to reality but the best the bill’s sponsors could negotiate with some Senate holdouts. Still, the Act meant that a defendant had to be caught with 28 grams for a mandatory minimum five years in prison rather than a mere 5 grams.

The other concession the bill’s sponsors had to make in order to ensure the measure’s passage was to agree that the Act would be prospective only, that is, apply only to people sentenced after the measure was enacted. It took eight years for another bill, this one the First Step Act, to do what should have been done in 2010, and that is to treat the guy sentenced on August 1, 2010, the same as the guy sentenced two days later.

The Sentencing Commission has lowered the drug guidelines twice since 2010, and each time made the change retroactive. However, retroactivity did not help guys who had mandatory minimum sentences under 21 USC § 841(b)(1) that would no longer be as onerous if the Act had passed. Likewise, a lot of defendants had had two qualifying prior cases, and were thus considered career offenders under the Guidelines. Career offenders have been deemed by the courts to not have been sentenced under the drug quantity guidelines, and thus the Sentencing Commission’s changes to those guidelines did not benefit them.

But now, a weird effect of the retroactive Fair Sentencing Act is giving hope to guys who sentenced as Guidelines career offenders in crack cases.

Logan's going to the street...
Logan’s going to the street…

Logan Tucker was convicted in 2001 for a crack offense. His original 262-month sentence was driven not by a statutory mandatory minimum, but rather by the Guidelines career-offender provision. Although Logan’s sentence for a crack offense was driven by the Guidelines rather than a statutory mandatory minimum provision, he was not previously eligible for a 2-level reduced sentence due to retroactive Guideline changes because of his career offender status.

But last week, Logan got his break. His sentencing judge ruled that Logan was originally sentenced for a crack offense, and the Fair Sentencing Act lowered the statutory maximum he would have faced. The career offender guidelines, strangely enough, are set under USSG § 4B1.1 by the statutory maximum sentence a defendant faces. Logan’s new lower statutory maximum effectively lowed his career offender guideline.

Logan’s judge imposed a reduced sentence of 188 months, the low end of the new guidelines range, and let him walk out of the courtroom a free man (or as free as supervised release lets one be). Notably, the government in this case conceded that the First Step Act authorized the reduced sentence (although, being prosecutors to the end, the AUSAs urged the court to exercise its discretion not to reduce Logan’s original sentence).

Order, United States v. Logan, Case No. 3:00-cr-00246 (S.D. Iowa, Jan. 23)

– Thomas L. Root

First Step 2.0 Already Being Planned – Update for January 30, 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.

NEXT STEP ACT ALREADY IN WORKS

The bipartisan team that rallied House support for the First Step Act is drafting new legislation to clean up the existing criminal records of nonviolent drug offenders, a centerpiece of their efforts to pass further reforms.

Reps. Hakeem Jeffries (D-New York) and Douglas Collins (R-Georgia) are looking at how to expunge the criminal records of people convicted of drug crimes before minimum sentencing requirements were reduced, to restore their eligibility to apply for certain jobs. Nationally, one out of five jobs requires some kind of license, which excludes just about everyone with a prior felony. “’What is being contemplated is removing the stain that has been put on their life’s journey as a result of a nonviolent drug offense, often occurring at a very adolescent stage of their life,” Jeffries said.

jeffries-collinsA190130The bipartisan legislation could form the basis for what Collins said might be called a ”Next Step Act,” to follow up on the pair’s successful efforts to pass a First Step last year. Both lawmakers hope to continue their established partnership with President Donald Trump’s son in law and senior adviser Jared Kushner, with whom they worked on last year’s criminal justice reforms.

Jeffries said he also hopes to address marijuana as part of any future criminal justice package. “There’s a growing number of conservatives, libertarians and Republicans who are in agreement with Democrats, who believe that we should at least take a hard look at descheduling marijuana,” he said. “[It] shouldn’t actually be that controversial, and it’s consistent with Republican principles of states’ rights and federalism.”

Washington Post, Next step in criminal justice reform could target jobs for ex-convicts, marijuana law (Jan. 17, 2019)

Chicago Tribune, Bipartisan authors of federal sentencing reform have new goal (Jan. 23)

– Thomas L. Root

Err in Haste… Congress Screws Up First Step Implementation – Update for January 29, 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.

TRYING TO FIX FIRST STEP’S 54-DAY FIASCO

finemess190129The expanded good-conduct time credit in the First Step Act – which increased the number of days awarded a federal inmate for good behavior from 47 to 54 days a year, retroactive to the beginning of an inmate’s current sentence – was intended by Congress to be immediately effective, The Congressional Budget Office estimated that the change would immediately release about 4,000 people.

The good-time fix, however, was inexplicably tucked into the earned-time credit section of the Act. A subsection of that provision, which was quite reasonably intended to delay implementation of the earned-time program until the Attorney General adopted a risk-assessment tool to use in order to measure its effectiveness, had the completely unintended effect of delaying award of the additional good-time credit as well. Thus, increased good-time will not be until July 19.

The Washington Examiner reported last Friday that “three sources who work closely with lawmakers and administration officials say it’s their understanding that the White House is looking for an administrative fix.”

White House Counsel Pat Cipollone reportedly met with advocates in mid-January to discuss the issue. “I think he really understood the intent,” said a person with direct knowledge of the meeting. “I think they understood this was a key provision… This was a key part of legislative negotiations.”

For people serving decades, seven additional days means release months early. The increased “good time” expansion and the extension of the Fair Sentencing Act were intended to be retroactive, unlike everything else in the bill.

Mybad190129It quickly became clear, however, that an immediate award of the extra seven days per year was not happening. “I think it was just an oversight,” said Kevin Ring, president of FAMM. “People were focused on making sure the good time got increased and that it was retroactive. It ended up getting put in the section with ‘earned time.’”

A few fixes are being discussed. The easiest would be for the White House to order the Justice Department to apply the 54 days of “good time” credit immediately. Other fixes would require legislation — either a unanimous consent motion or a spending bill provision — but legislative gridlock amid a partial government shutdown makes neither likely.

“I don’t think it’s something that gets cleared up quickly,” said Jessica Sloan of #cut50, one of the people at the White House meeting. “I’m hopeful the White House will issue some sort of directive to the DOJ, which will issue a directive to BOP, but there are a lot of administrative steps there.”

Ohio State University law professor Douglas Berman said last weekend in his Sentencing Law and Policy blog that he “had very little “faith” in anyone inside the Beltway fixing things these days, but it is encouraging that two very effective advocates had the opportunity to address the White House Counsel about potential fixes.”

Washington Examiner, Drafting error stalls inmate release under Trump plan (Jan. 25)

– Thomas L. Root

First Step Act Beneficiaries By The Numbers – Update for January 25, 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.

SENTENCING COMMISSION RELEASES FIRST STEP CHECKLIST, IMPACT STUDY

imageThe Romans had a phrase for it: “Cui bono?” Last week, the U.S. Sentencing Commission tried to answer that question about the First Step Act.

The extra seven days of good time granted by the Act will benefit the most inmates, about 142,500 federal prisoners (79% of the 180,390 federal prison population), excluding only people with life sentences or sentences of less than a year and a day (which are ineligible for good time under 18 USC 3624[b][1]). The earned time credit the Act awards for completing programs that reduce recidivism is in second place. The Commission estimates that it will benefit about 106,000 eligible inmates (about 59% of the population).

The retroactive Fair Sentencing Act provision of the First Step Act only touches about 2,660 inmates, but it has an outsized effect on racial disparity: 90% of whom are black.

elderly180517The elderly offender home detention program expanded by the Act has 1,880 inmates who are currently eligible (the right age, right offenses and right amount of time served). Of course, the EOHD program, unlike the other First Step programs, will see an influx of additional inmates who reach the right age and service of sentence.

The Commission also issued an 8-page fact sheet answering questions about implementing the sentencing portions of First Step. In it, the USSC notes that First Step requires no changes in the Guidelines (which is a good thing because the 7-member Commission is down to only two voting members, leaving it unable to approve any new Guidelines until the Senate approves additional commissioners).

USSC, Sentence and Prison Impact Estimate Summary (Jan. 18)

USSC, ESP Insider Express: First Step Act (Jan. 18)

– Thomas L. Root

First Step Rollout Already Behind Schedule? – Update for January 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.

COULD SHUTDOWN MESS WITH FIRST STEP ACT IMPLEMENTATION?

endshutdown190122The First Step Act sets July 19 as the hard deadline for adoption of a risk assessment system. That system is a precondition to the Bureau of Prisons beginning to grant earned time credit to inmates for programs that reduce recidivism.

But an even earlier deadline falls today, by which time the Dept. of Justice was to establish the committee tasked with creating the risk assessment system. The New York Times reported last week, however, that the Jan. 21 deadline would not be met, and no one still working at DOJ despite the shutdown will say when the committee will be formed.

No one is sure what happens if the risk assessment system is not in place by July 19. On the one hand, the deadline is written into the statute, so DOJ cannot ask for an extension. On the other hand, it is not clear who could sue or whether a court could effectively compel DOJ to meet the deadline.

Meanwhile, confusion continues to reign over the delay of the extra seven days of good time until July 19. “It absolutely makes no sense,” said Jack Donson, a former BOP case manager told the Times. Donson said the recalculation of good time should not have been linked to the new risk assessment system.

A staff member for Sen. Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee, said that the good-time effective date was inherited from a version of First Step passed by the House, and that Grassley was aware that questions had been raised about it.

While the staff member “wouldn’t necessarily characterize it as a drafting error,” he said Grassley “definitely has his eye on it and intends to keep working with the administration on a way forward.”

closed190122Meanwhile, the federal courts, which previously said their funds would run out on Jan. 18, announced last week that cost-cutting had extended the drop-dead date to at least Friday, Jan. 25. However, the Administrative Office of U.S. Courts warned that “at some point in the near future, existing funds will run out if new appropriated funds do not become available.”

If that happens, the courts will operate under the Anti-Deficiency Act, 31 USC 1341, which limits them to mission-critical work. In response to DOJ requests, some federal courts have issued orders suspending or postponing civil cases in which the government is a party, and others have declined to do so.

Criminal cases are expected to proceed uninterrupted.

New York Times, Shutdown Threatens to Delay Criminal Justice Reforms Signed Into Law by Trump (Jan. 16)

Administrative Office of U.S. Courts, Judiciary to Continue Funded Operations Until Jan. 25 (Jan. 16)

– Thomas L. Root

Err in Haste… Congress Goofs, Inmates Keep Doing Time – Update for January 16, 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.

54 DAYS GOOD TIME DELAY IS A “MISTAKE”

screwup190116The BOP let inmates know last week that it does not have to recalculate good time to give inmates the extra seven days approved by the First Step Act until the Attorney General adopts a new risk assessment system, relying on Sec. 102(b)(2) of the Act.

First Step gives the AG 210 days from the date the bill was signed to complete the risk assessment. That deadline, and the latest date for BOP crediting the good time, is July 19, 2019.

A Chicago halfway house resident lost his bid for immediate release in District Court last week. The Northern District of Illinois court said the defendant, whose current out date is next month but who would already have been out with the additional time, “cannot obtain relief. Section 102(b) of the First Step Act states that the amendment to section 3624(b) does not take effect until after the Attorney General completes and releases the needs assessment system established under section 101(a) of the Act. The Attorney General is given up to 210 days to implement the risk and needs assessment system.”

“This court is not unsympathetic to the apparent inequity of petitioner’s situation,” wrote U.S. District Judge Sharon Johnson Coleman. “This court, however, is obligated to apply the law as it is written.”

Reuters reported last week that the delay in increased good time resulted from as drafting mistake. First Step activists said the law, as drafted, confused good-time credits, which reduce a sentence for compliance with BOP rules, with earned-time credits, which was to be awarded for completing approved programming. Sec. 102(b)(2) mistakenly said that new rules on good-time credits could not kick in until the AG finishes a risk-assessment process which relates to the earned-time credits, but has nothing to do with good-time credits.

Several First Step supporter told Reuters their groups are working with the White House to find a work-around, although a legislative fix may be needed. The groups are considering trying to tuck a fix into a broader spending bill for action by Congress.

annette190116Meanwhile, Annette Bongiorno, a former Bernie Madoff associate, did not fare much better. We reported on December 31 that her lawyers had petitioned her sentencing court to send her to home confinement under the Elderly Offender Home Detention program as soon as she hit her two-thirds date. Last week, her sentencing judge denied the motion, noting that which Bongiorno appears to be eligible for home confinement in February, “the statute does not provide for direct application to the Court for the relief she seeks. Instead, the initial determination as to Mrs. Bongiorno’s eligibility for release to home confinement, which is discretionary, rests with the… BOP.”

Order, Shah v. Hartman, Case No. 18 C 7990 (N.D. Ill. Jan. 3, 2019)

Reuters, Error in U.S. prisons law means well-behaved inmates wait longer for release (Jan. 9)

– Thomas L. Root