Tag Archives: FIRST STEP Act

Elderly Offender Program Dies – Update for October 10, 2023

Leave a comment

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

LAW FORCES END OF ELDERLY HOME DETENTION PROGRAM

The Federal Bureau of Prisons’ Elderly Offender Home Detention pilot program (EOP) is over for now, Whether it will ever return is an open question.

okboomer231010Originally adopted as a pilot program in the Second Chance Act of 2007, the EOP was authorized at a single BOP facility only, permitting nonviolent offenders who were 66 years old to serve the final months of their sentences at home. The First Step Act expanded the program to the entire BOP system in 2018, allowing “offenders who are over 60 years of age, have served two-thirds of their sentence, are not convicted of a crime of violence, and do not have a history of escape to be placed on home confinement for the remaining portion of their sentence.”

A great idea: take nonviolent, unlikely-to-offend-again oldsters who are costing the BOP a ton of money for healthcare, and send them to home confinement. OK, Boomer!

But tucked into a corner of the EOP statute at 34 USC 60541(g)(3) was the limitation that the EOP would remain a “pilot program and shall be carried out during fiscal years 2019 through 2023.” Fiscal 2023 ended on September 30th.

By all accounts, the program worked well. Since 2018, the BOP has placed over 1,220 people at home under the program with no reports of new criminal conduct.

Writing in The Hill, former BOP Director Hugh Hurwitz noted a July 2022 Sentencing Commission study showed that the recidivism rate for people over 50 is less than half that of those under 50. “Under the pilot program,” Hurwitz wrote, “only those over 60 are considered, and they can’t have any history of violence, thus making their recidivism rate even lower.”

The Vera Institute of Justice reported six years ago that the cost of keeping older people locked up “is double that of housing younger ones, due to health care expenses.” Even a decade ago, the BOP spent a fifth of its budget on older inmates. The average prisoner age is up about 8% since then. “People serving time on home confinement see their own doctors (while being monitored electronically),” Hurwitz wrote, “and bear the costs themselves, saving taxpayers millions.”

notokboomer231010Walter Pavlo wrote in Forbes that “many are calling for EOP’s renewal. Budget constraints, administrative changes, and shifts in policy priorities left the EOP program hanging in the balance. This termination has raised concerns among advocates and experts who believe that the program’s end is a step in the wrong direction.”

Sadly, reauthorization of the program will require action by a Congress that is not producing much in the way of legislation and is awaiting reauthorization of a program that will send prisoners to home confinement – even a proven one that makes perfect sense – may have a long wait. In fact, I doubt that we will see the program return in the next five years.

Not OK, Boomer.

The Hill, Moving elderly prisoners home saves taxpayer dollars without sacrificing safety (September 27, 2023)

Forbes, Old and Facing Prison (October 7, 2023)

Dept of Justice, First Step Act Annual Report (April 2023)

Vera Institute, Aging Out (December 2017)

– Thomas L. Root

Hair-Splitting on § 924(c) Sentence Stacking – Update for September 28, 2023

Leave a comment

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

6TH CIRCUIT REFUSES EN BANC ON STACKED § 924(C) SENTENCES

Sentencestack170404Tim Carpenter used a gun in a string of Hobbs Act robberies. He ended up with 105 years when he was sentenced before the First Step Act, which reduced mandatory minimum sentences for stacked 18 USC § 924(c) offenses. But Tim’s sentence was vacated because of errors, and he was not resentenced until after First Step became law.

First Step, if applied to Tim’s sentencing, would reduce his § 924(c) mm sentence from 105 to 25 years. But despite the First Step’s retroactivity provision extending its benefits to defendants awaiting sentencing, and despite Tim’s pre-FSA sentence being thrown out, a three-judge panel held that Tom had to be resentenced under the old version of the statute.

First Step § 403(b) provides that the new § 924(c) sentencing statute would apply to offenses committed before the Act “if a sentence for the offense has not been imposed as of such date of enactment.” The Circuit believes that if a defendant was sentenced for a § 924(c) offense before December 2018 – even if the sentence was vacated later – any new § 924(c) sentence would have to be imposed under the old law.

Last week, the 6th denied en banc review, although six judges wanted to revisit the issue. Judge Bloomekatz spoke for all dissenters in an opinion that some commentators think was an effort to get at least one Supreme Justice’s attention:

The real human costs that this esoteric legal issue presents also should not be overlooked. Because our circuit has split from every other to reach this issue, defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states. Timothy Carpenter proves this point. His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the 3rd, 4th, and 9th Circuits. The resulting sentencing disparity… should give us pause enough to consider the decision as a full court. Indeed, the circuit split, the federal government’s position, the dissent from then-Judge Barrett in United States v. Uriate, and the dueling opinions on this en banc petition underscore that the scope of the retroactivity provision is far from clear.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said, “I am pretty sure this Timothy Carpenter has already served 10+ year in prisons, and so may soon be eligible for a reduction in sentence under the ‘unusually long sentences’ criteria in the U.S. Sentencing Commission’s proposed new [1B1.13] ‘Compassionate Release’ policy statement.”

circuitsplit220919In his legal blog, UCLA law prof Eugene Volokh said of the opinion, “The en banc denial—which garners two dissentals—solidifies a circuit split, so keep an eye on this one.”

United States v. Carpenter, Case No 22-1198 (6th Cir., September 18, 2023)

United States v. Uriate, 975 F.3d 596 (7th Cir. 2020)

Sentencing Law and Policy, Notable debate among Sixth Circuit judges as court turns down en banc review of “resentencing retroactivity” after FIRST STEP Act (September 20, 2023)

The Volokh Conspiracy, Short Circuit: A Roundup of Recent Federal Court Decisions (September 22, 2023)

– Thomas L. Root

Anti-Crime Candidates Should Embrace First Step – Update for August 21, 2023

Leave a comment

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

THE HILL ARGUES GOP SHOULD LAY OFF FIRST STEP ATTACKS

firststepB180814Writing in The Hill last week, Marc Levin – chief policy counsel for the Council on Criminal Justice – wrote that while the First Step Act was a bipartisan effort to rein in excessive penalties for low-level drug offenses and allowed some people in federal prison to earn time off their sentences by completing programs, Republican presidential candidates “in their attempts to pass the Trump train on the right are now claiming that the Act caused a crime surge while sidestepping their burden of proof.”

These attacks are ironic, Levin wrote, given Republicans’ past support for the law, and the fact that many left-wing groups opposed it primarily because they felt it didn’t go far enough.

While it is reasonable to ask whether First Step is “somehow to blame for the subsequent uptick in crime,” Levin wrote, “the best evidence currently available suggests otherwise.” People released early with FSA credits, for example, comprise under 1% of all prisoners in the US. What’s more, some 38 states offer earned credits like those provided for in the Act, and those states have found that such credits boost program participation rates, improving behavior behind bars and prospects for success upon release.

recividists160314The BOP has reported that 12.4% of those released early due to FSA credits have been reincarcerated at the federal, state or local level. Even these numbers overstate matters: the BOP has acknowledged the number includes all those released at various times since the Act went into effect in 2019.

Levin writes that “legitimate policy disagreements on crime should be part of political campaigns. But prison reforms at the state and federal level have been embraced across the spectrum because all Americans have an interest in a system that treats people fairly and breaks the cycle of crime without breaking the bank.”

The Hill, The GOP was for these prison reforms before turning against them (August 16, 2023)

– Thomas L. Root

Learning to Love First Step But Not The Trial Penalty – Update for August 14, 2023

Leave a comment

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

TRUE CONFESSIONS

firststepB180814The focus on federal criminal justice lately has been on the Espionage Act and obstruction of justice (if you’re Donald Trump) and on drug users possessing guns and forgetting to report $10 million in income (if you’re Hunter Biden).

Nevertheless, two pieces last week provided support to criminal justice from surprising sources.

First, the conservative Washington Times published an opinion piece decrying attacks on Republican presidential candidates for having supported the First Step Act, legislation that “has garnered overwhelming support among Republican voters, underscoring the power of prudent and popular conservative criminal justice reform.”

The writer noted that violent crime is rising for a lot of reasons, but “none of which are related to the First Step Act.” He observed that “an impressive 86% of polled Republicans said the First Step Act reflected their views” and argued that “with a focus on evidence-based recidivism reduction programs and judges’ discretion in sentencing, the First Step Act exemplifies a sustainable and thoughtful approach” to public safety.

The column reports that the “First Step Act’s recidivism rate of just over 12% for those released under it, compared with the 43% rate for the general population released from federal prisons, attests to its success.”

Meanwhile, on Fox News, former U.S. Attorney for Utah Brett Tolman argued that Republicans going after the First Step Act ignored the realities of federal drug prosecutions.

Citing the case of Alice Johnson, famously granted clemency by President Trump based on Kim Kardashian’s intervention in her favor, Tolman said, “Alice’s story was first warped during her trial by prosecutors who manipulated drug laws – not to nab a drug “queen pin,” but to pin the blame on the little guy. As a former prosecutor, I’m peeling back the curtain on this practice and setting the record straight.”

alice201229Tolman noted that Alice was offered a plea deal for 60 months, but “at the urging of her attorney, Alice chose to exercise her constitutional right to a fair and impartial trial. What the prosecution did next can only be described as retaliation. It brought new drug conspiracy charges against Alice that had not been considered before, accusing her of attempted possession of 106 kilograms of cocaine. No physical evidence was ever found to support this, but physical evidence was not required at the time. Instead, to make its case, the prosecution coerced two of Alice’s co-defendants to change their testimonies in exchange for reduced sentences, pinning the blame on Alice… The “trial penalty” — the increase in sentencing for those who choose to go to trial rather than take a plea deal – is very much alive. Alice’s trial is the perfect example of how perverse incentives within the criminal justice system, spurred by the failed “War on Drugs,” ruin lives and tear families apart while doing nothing to improve public safety.”

Writing in his Sentencing Policy and the Law blog, Ohio State law professor Doug Berman “found notable that this former US Attorney so readily and clearly highlights how prosecutors impose a ‘trial penalty’ as a form of ‘retaliation’ for defendants who exercise their constitutional rights to trial.”

Washington Times, GOP voters support the First Step Act; our candidates should, too (August 8, 2023)

Fox News, I’m a former prosecutor. The ‘War on Drugs’ incentivizes convictions, not justice (August 8, 2023)

Sentencing Law and Policy, Former federal prosecutor describes practice of “retaliation” against drug defendants who exercise trial rights (August 10, 2023)

– Thomas L. Root

Getting Closer to Home? – Update for June 27, 2023

Leave a comment

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

FOUR BOP FACILITIES HAVE ‘MISSIONS’ CHANGED

The Bureau of Prisons is changing the “mission” – that is, converting the populations – of four prison facilities to move the agency closer to the First Step Act’s ideal of housing prisoners within 500 road miles of their homes.

home190109FCI Oxford (Wisconsin), FCI Estill (South Carolina) and FCI Memphis (Tennessee) will convert from male medium-security to male low-security facilities. FCI Estill Satellite Camp will flip from male minimum-security to female minimum-security.

BOP Director Colette Peters told staff in an internal memorandum, “In support of the First Step Act, the BOP has identified locations to undergo mission changes to better afford an opportunity for individuals in our custody to be housed within 500 miles of their release residence.”

The First Step Act provided that the BOP should “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.” That directive, codified at 18 USC § 3621(b),  has more holes than a Swiss cheese factory.

The provision says that the 500-mile placement is “subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns…”

Any BOP employee who can’t find an exception in that statutory mush that justifies keeping a New Yorker, for instance, at FCI West Coast just isn’t very motivated.

One of President Biden’s first acts in office was to order that private prisons’ contracts not be renewed. “The unintended consequences of a move that had popular support with the public,” Walter Pavlo wrote last week in Forbes, “was that it pushed those prisoners in private prisons into BOP low-security prisons across the country… Prisoners were displaced all over the country and some incoming prisoners had to serve their time far from home where bed space was available. The reclassification of these prisons to low security, have the intended purpose of getting more people closer to home.”

rojas230627

Meanwhile, some BOP staffer’s unions are protesting Director Peters and the BOP’s chronic understaffing problems. A union protest last week near FCI Coleman, ironically enough, was broken up by local law enforcement, but not before the union took issue with the fact that the Director “won’t call inmates ‘inmates,’” said Union Advocate Jose Rojas. “She calls them ‘neighbors.’”

Union members invited onlookers to spin a roulette-style wheel prop that “represented the chance that prison staffers take every day when they have ‘neighbors’ such as the 8,000 inmates at the prison. Those ‘neighbors’ include serial child molester Larry Nassar notorious for years of abusing girl gymnasts, a Somali pirate and many of the nation’s most-hardened criminals,” The Villages-News reported.

“They don’t realize how dangerous it is. We might start seeing some ugly stuff,” Rojas said.

BOP, Mission Change for FCI Oxford Announced (June 21, 2023)

BOP, Three Locations to Undergo Mission Changes (June 13, 2023)

Forbes, Bureau of Prisons Changes in Works to Comply With First Step Act (June 23, 2023)

The Villages News, Picket permit revoked as prison guards try to issue warning in The Villages (June 22, 2023)

– Thomas L. Root

Flip-Flopping on First Step Act – Update for June 20, 2023

Leave a comment

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 – THEY WERE FOR IT BEFORE THEY WERE AGAINST IT

kerry230620Remember the abuse heaped on 2004 Democratic presidential candidate John Kerry – currently Joe Biden’s carbon-spewing climate change czar – when he told a Marshall University crowd back during the ’04 campaign that “I actually did vote for the $87 billion before I voted against it?” It was considered the poster child for political flip-flops.

So far, three Republican candidates for president have nothing of John in denouncing Donald Trump’s signature criminal justice reform bill, 2018’s First Step Act. They were all for it before they were against it.

Florida Gov Ron DeSantis has called it a “jailbreak bill.” Former Vice President Mike Pence said, “We need to take a step back” from it. Former Arkansas Gov Asa Hutchinson proclaimed, “There’s probably some areas there that can be adjusted.”

Even Trump barely talks about First Step while his rivals for the 2024 GOP nomination attack it as a chief contributor to the rise in violent crime. “It has allowed dangerous people who have reoffended and really, really hurt a number of people,” DeSantis said on The Ben Shapiro Show. “So one of the things I want to do when I’m president is go to Congress and seek the repeal of the First Step Act.”

Politico said last weekend that “GOP candidates targeting the criminal justice law is, to a degree, an illustration of how the party views crime as a major election issue and a useful cudgel to bludgeon Trump with.”

flipflop170920DeSantis was a congressman who voted in favor of the House version of First Step, which was a dream come true for federal prisoners compared to the final product. Pence, meanwhile, worked alongside Trump’s son-in-law and advisor Jared Kushner to help push First Step with skeptical Republican lawmakers on the Hill. Asa Hutchinson, a former DEA chief who has praised the First Step Act’s reduction in federal sentencing disparities between crack and powder cocaine, says that president, he would be open to making changes.

Trump campaign spokesman Steven Cheung tweeted last month, “Lyin’ Ron. He voted for the First Step Act. Would be a shame if there was video of him praising it in an interview with a local FL television station.”

Overturning the First Step Act is easier said than done. Republican pollster Adam Geller says he understands why DeSantis and others are arguing against First Step in order to separate themselves from Trump without offending his base. But Geller said he doesn’t see it as an effective message to win over voters or members of Congress, both groups who any future president would have to work with. “On the assumption that you become president, who exactly you’re going to solicit to overturn this legislation? Republicans voted for it. So did Democrats,” Gellar told Politico. “When you say you’re going to overturn that, with who[m]?

softoncrime230620While First Step may not face serious trouble, the rising anti-crime mood suggests that the window has slammed shut on hopes for crack-powder disparity, retroactivity for some First Step changes, and maybe even marijuana reform until after the presidential election, now 17 months away.

Politico, DeSantis takes aim at Trump’s signature criminal justice reform law (June 18, 2023)

Florida Phoenix, DeSantis goes after Trump on federal criminal justice reforms, clashing over law-and-order front (June 16, 2023)

– Thomas L. Root

Some ‘Shorts’ – Update for June 13, 2023

Leave a comment

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

Today, a “short rocket” of odds and ends collected over the last week or so…

THE SHORT ROCKET

rocket190620Editorial Calls For Change In BOP: In an editorial bemoaning recent reports on BOP facilities and management failings, the Washington Post on Saturday demanded passage of S.3545, The Prison Accountability Act of 2022.

The Federal Bureau of Prisons generally labors in obscurity, except when a high-profile inmate arrives, as Theranos founder Elizabeth Holmes did the other day, or when a notorious one passes away, most recently FBI-agent-turned-Russian-spy Robert Hanssen.  And yet its mission — housing roughly 159,000 people convicted of federal crimes humanely and securely, and then fostering their reentry to society — is crucial to the rule of law.  The BOP operates 122 facilities at a cost of about $8.4 billion in fiscal 2023, the second-biggest budget item, after the Federal Bureau of Investigation, in the Justice Department.  With more than 34,000 personnel, the BOP is the department’s largest employer.

mismanagement210419The editorial concluded that “[i]t’s time for more attention to be paid to the BOP. A steady flow of reports has documented an agency beset by chronic problems — unsanitary kitchens, sexual assaults, an astonishing recidivism rate of around 43 percent — in urgent need of reform.” Plugging the FPOA, the Post argued, “The BOP needs stable leadership, without which consistent policy cannot be sustained, let alone reformed. Its director should be nominated by the president for a single 10-year term, subject to Senate confirmation, like the director of the FBI. A measure proposed in both houses last year would make this change, yet it languishes… The need for structural change at the BOP is clear. So are the costs of inaction.”

Washington Post, How to end the dysfunction at the Federal Bureau of Prisons (June 10, 2023)

Another Presidential Hopeful Slams First Step Act: Mike Pence – who announced his candidacy for the Republican presidential nomination last Wednesday – told an Iowa town hall event that there’s a need to “rethink” First Step, signed by then-President Trump while Pence was serving as vice president.

lock200601“I think we need to take a step back and rethink the First Step Act,” Pence said at an Iowa town hall event. “I mean we’ve got a crime wave in our major cities, and I think now more than ever we ought to be thinking about how we make penalties tougher on people who are victimizing families in this country.”

Pence’s comments reflect how sharply the Republican position on crime and criminal justice reform has shifted in the roughly four years since Trump signed First Step into law.

The Spectator noted the recent Republican phenomenon, which began with Ron DeSantis – who himself voted for a House version of First Step back in spring 2018 – going after Donald Trump for signing the bill:

The GOP’s abandonment of criminal justice reform is likely a welcome change for tough-on-crime mainstays like Senators Tom Cotton and John Kennedy, who voted against the First Step Act, while the libertarian wing of the party will be vexed. The real story will be in how these internal fights are received by primary voters, as 80 percent of Republicans said crime is a real threat in communities in a March NPR poll. Which primary candidates can run the fastest from the perception that they might be gracious to criminals?

The Hill, Pence: Time to ‘rethink’ criminal justice reform bill signed by Trump (June 7, 2023)

The Spectator, The GOP is sprinting away from criminal justice reform (June 12, 2023)

BOP Employees Charged With Lying About Dying Inmate: A BOP correctional lieutenant and a nurse are accused of ignoring the serious medical needs of a man who died under their supervision at FCI Petersburg, federal prosecutors said.

medical told you I was sick221017BOP Lt. Shronda Covington was told the 47-year-old inmate, identified in the indictment as W.W., was eating out of a trash can, urinating on himself and falling down the day before his death in January 2021 at FCI Petersburg in Hopewell, according to court documents. However, she told federal investigators that W.W. was walking around his cell, doing pushups and listening to music on January 9, 2021, the indictment alleges.

Tonya Farley, a BOP RN, has been charged with filing a false report.

The employees were charged on June 6 with violating the man’s civil rights “by showing deliberate indifference to his serious medical needs, resulting in his death,” the United States Attorney’s Office for the Eastern District of Virginia said in a news release. The man died due to heart issues on Jan. 10, 2021, according to records obtained by The Associated Press.

Rock Hill Herald, Man accused of faking illness dies in prison after medical needs are ignored, feds say (June 8, 2023)

US Attorney’s Office, Two Federal Bureau of Prisons Employees Charged with Violating the Civil Rights of an Inmate Resulting in His Death (June 7, 2023)

– Thomas L. Root

DeSantis Wants to Stop the ‘Jailbreak’ – Update for June 6, 2023

Leave a comment

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

WHO CARES ABOUT THE 2024 PRESIDENTIAL ELECTION? YOU SHOULD.

turnback230606Cher used to croon about how nice things could be if she could only turn back time.

I give you Cher-lovin’ Florida Governor Ron DeSantis. Ron, running for the Republican presidential nomination behind former President Donald Trump, said a week ago that if elected president, he would call on Congress to repeal the First Step Act.

DeSantis criticized the Act as “basically a jailbreak bill.”

“So one of the things I would want to do as president is go to Congress and seek the repeal of the First Step Act,” DeSantis said. “If you are in jail, you should serve your time. And the idea that they’re releasing people who have not been rehabilitated early so that they can prey on people in our society is a huge, huge mistake.”

DeSantis has apparently forgotten that when he was in the House of Representatives in 2018, he voted for the House version of the bill, a much more pro-prisoner bill than the one that finally became First Step. He resigned his seat to run for governor before the final version passed.

rightthings230606Now many would say that basing a presidential campaign on not being Donald Trump is perhaps a canny strategy. And many also opine that Trump only championed the First Step Act because Jared Kushner – who really believed in its goals – convinced the then-president that black voters would love him for it. But James Carville was correct when he said that the right things usually get done for the wrong reasons.

The Daily Beast (a liberal publication) argued last week that First Step was a “bipartisan recognition that the growth of our carceral state has not been an effective crime deterrent… There are many people still in federal prisons who don’t need to be there, because they have aged out of crime and pose little risk to the community. These people, who are disproportionately Black and Latino, should be allowed to return to the workforce and their families.”

The Daily Beast called on Congress to build on the First Step Act by passing the First Step Implementation Act and the Safer Detention Act. “Fifty years after the beginning of mass incarceration, presidential candidates should be making the case for how they will do their part to end it,” the Beast wrote. “Congress should pass the First Step Implementation Act and Safer Detention Act and the current and future administrations must do their part to support these and other critical reforms and ensure their successful implementation.”

marijuana220412In other discouraging news, the Kiplinger letter reported last week that the Drug Enforcement Administration (DEA) is planning to propose a ban on delta-8 THC, CBD, and other alternative cannabinoids derived from hemp.

Those in support of the potential ban argue that delta-8 THC and other hemp-derived cannabinoids are created through “chemical synthesis” and should be classified as controlled substances. Kiplinger said a ban would be a “major step in the wrong direction.”

The Hill, DeSantis says he would push to repeal Trump criminal justice reform if elected (May 26, 2023)

Daily Beast, Ron DeSantis Is Flat-out Wrong About the First Step Act (June 2, 2023)

The Kiplinger Letter, Is a Possible Delta-8 THC Ban in the Works? (June 2, 2023)

– Thomas L. Root

Three First Step Reform Retread Bills Introduced – Update for April 24, 2023

Leave a comment

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

DÉJÀ VU ALL OVER AGAIN

deja171017Senate Majority Whip Richard Durbin (D-IL), chairman of the Judiciary Committee, and Sen. Charles Grassley (R-IA) last Wednesday reintroduced three of the biggest criminal justice of the last Congress, reform bills that made it out of Senate committee but never got voted on in 2021-2022.

Yogi Berra might say, “It’s déjà vu all over again.”

Durbin and Grassley sponsored First Step five years ago. Now, they have reintroduced the First Step Implementation Act (FSIA) (S. 1251) and Safer Detention Act (S.1248) – both of which were approved by the Committee in 2021 but did not pass the Senate the last Congress – as well as rolled out the Terry Technical Correction Act (S. 1247).

The FSIA would allow courts to apply First Step sentencing reform provisions to reduce sentences imposed prior to First Step’s December 2018 enactment and broaden the drug safety valve (18 USC § 3553(f)) to allow courts to sentence below a mandatory minimum for nonviolent controlled substance offenses, if the court finds the defendant’s criminal history over-represents the seriousness of the defendant’s criminal record and the likelihood of recidivism.

The Safer Detention Act of 2023 would reform the Elderly Home Detention Pilot Program (34 USC § 60541(g)(5)) by clarifying that the time served required for the Program should be calculated based on an inmate’s net sentence – including reductions for good conduct time credits; lowering eligibility to include nonviolent offenders who have served at least 50% (instead of 66.7%) of their terms; and making D.C. Code offenders in BOP custody eligible for the Elderly Home Detention Pilot Program. The bill would also make federal prisoners sentenced before November 1, 1987 eligible for compassionate release.

jordan230425The Terry Technical Corrections Act (S. 1247) broadens the scope of crack cocaine offenders who are eligible for a retroactive sentencing reduction under the First Step Act of 2018. The First Step Act authorized sentencing reductions for crack cocaine offenders convicted and sentenced before the Fair Sentencing Act became effective, as long as their conduct triggered a mandatory minimum sentence. This bill extends eligibility for the retroactive sentencing reduction to all crack cocaine offenders sentenced before the Fair Sentencing Act became effective, including low-level offenders whose conduct did not trigger a mandatory minimum sentence.

Remember that this same trio of modest proposals did not pass even when the Democrats ran the House, the Senate and the White House. Now, the Republicans run the House, with Rep. Jim Jordan (R-OH) chairing a House Judiciary Committee more interested in attacking Democrats for being soft on crime and hard on former President Trump than it is in addressing criminal justice reform.

Writing in his Sentencing Law and Policy blog last Thursday, Ohio State University law prof Doug Berman said, “For a wide variety of reasons, I am not at all hopeful that any form of federal sentencing reform will be enacted in the current Congress. But I was still pleased to learn… that a pair of notable Senators are still seeking to advance some notable (previously stalled) sentencing bills.”

underthesun230424

Kohelet was an old and wise guy when he reputedly wrote the Book of Ecclesiastes. If he were still writing, it would be about these three bills.  Nothing new under the sun, indeed, as will probably be the fate of these three – demise in December 2024, just as the last three died at the end of 2022. At that time, we will be writing of the FSIA, Safer Detention Act and Terry Technical Correction Act, “Vanity of vanities! All is futile! What profit hath a man for all his toil, in which he toils under the sun?”

Reintroduction of the three measures last week came as The Crime Report complained that “after four years, the impact of the First Step Act has been mixed… In March 2022 that there were 208,000 inmates in federal prisons and jails. But only 5,000 inmates… have been released through one or more provisions of the FSA.”

The Crime Report concluded

The sheer number of reforms in the FSA that are the antithesis to the Nixon-era ‘lock-‘em-up-and-throw-away-the-key’ penal philosophy of both the Bureau of Prisons and the US Sentencing Commission make it exceedingly difficult to have the promise of the FSA fulfilled. The very magnitude of the law and its stated objectives, which include reducing recidivism and improving conditions in federal prisons, has resulted in less than what was initially promised by the supporters of FSA.

First Step Implementation Act (S.1251)

Safer Detention Act of 2023 (S.1248)

Terry Technical Corrections Act (S.1247)

Sentencing Law and Policy, Senators Durbin and Grassley introduce again set of First Step follow-up bills (April 20, 2023)

The Crime Report, The Promises Of Federal Criminal Justice Reform: Shortcomings of the First Step Act (April 17, 2023)

– Thomas L. Root

BOP Earned Time Credits Still a Mess – Update for January 19, 2023

Leave a comment

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

FSA CREDIT AUTO-CALC CREATES HAVOC (AGAIN)

After a year of fits and starts, the Federal Bureau of Prisons last week rolled out its latest iteration of the automatic calculation of inmates’ First Step Act credits. Some prisoners were released (or at least saw their time cut) due to the new calculations. But it seems a larger number still was left confused and unhappy, according to Forbes.

release161117On the Early Release from Federal Prison/Cares Act/First Step Act Facebook page, one commenter reported that his halfway house reported “a glitch in the system and that to give them until the 18th to have it corrected, but they are aiming for the end of this week.” On January 12, Bruce Cameron of Federal Prison Authority reported on the Facebook site that the BOP was “aware of a couple of issues that probably caused all the problems most are having… people being marked as ineligible who are eligible and have been eligible the whole time” and “a glitch that is causing people to be earning 10 days a month instead of 15 days a month. This would be the reason why you wouldn’t see all your time you are supposed to have.”

Yesterday, Cameron told his Facebook followers, “For those impacted by the ‘glitch’ put your patience hat on for February 6!”

Writing in Forbes, Walter Pavlo reported that “while many prisoners were released this week because of the new calculation, many of them would have gone home earlier if the BOP had correctly implemented the FSA calculator much earlier… The issue that is causing much of this problem is two-fold; a correct interpretation of the FSA that most everyone forgot about and yet another error in the FSA calculator.”

Pavlo said that because FSA credits can only be applied when the credits earned equals or exceeds the amount of time remaining on the sentence, “Those prisoners who had credits that suddenly disappeared really still have them, they just cannot be applied yet because they have more days remaining on their sentence than they do FSA credits.”

computerglitch230120Pavlo said the second problem is whether a prisoner earns 10 days or 15 days of FSA credit a month. Subsection (d)(4)(A)(ii) of 18 USC 3632 says that prisoners with a minimum or low PATTERN score “who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days of successful participation” in programming. The BOP interprets this to mean that prisoners must score low or minimum for two assessments before they can earn 15 days rather than 10.

Even if this interpretation is right, something that is less than clear, the new auto-calc program did not detect the second PATTERN risk assessment score, according to Pavlo, “so prisoners received only 10 credits for each month of programming rather than 15 after the second PATTERN score. It is a problem that the BOP is going to correct but there is no timeline for that fix.”

Forbes, Working Out The Bugs On The Bureau Of Prisons’ First Step Act Calculator (January 12, 2023)

Facebook, Early Release from Federal Prison/Cares Act /First Step Act public group (January 12, 2023, and January 19, 2023)

– Thomas L. Root