Tag Archives: FIRST STEP Act

“What We Have Here…” – Update for October 27, 2022

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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.

… IS A FAILURE TO COMMUNICATE


failuretocommunicate221027We Should Have Told You It Would Be On the Test: If email is any indication, not only did Federal prisoners receive First Step Act earned-time credits applied well after the credits were promised, but what was delivered was well short of what was reasonably anticipated.

Writing in Forbes last week, Walter Pavlo reported that although BOP Director Colette Peters told the Senate Judiciary Committee during her September 28 testimony that the agency’s new “auto-calc” program was already up and running, “it was not until the week of October 3rd that FSA credits started to be applied. As one prisoner told me, ‘I was expecting a year of credits and I got 4 months. I have no idea what happened’.”

Pavlo said that “what happened is that the calculator still has errors in it. Prisoners who were transferred to a halfway house after receiving an interim calculation of their sentence, were called in and told they would be returning to prison after the new calculation took away their year.”

Pavlo wrote, “One of the main factors that seems to be causing issues is that federal prisoners were told to complete a needs assessment survey when they first entered prison. The survey was part of the FSA in that it was meant to provide an assessment of the types of programs, needs, that the prisoner would address while in prison. The assessment was to be done on-line through an internal computer terminal that prisoners use for email communications with their families… What prisoners were not told was that the survey’s completion was a requirement to initiating the FSA credits. All of the prisoners I spoke to stated that they were never told of the survey’s importance nor could I find information about this in the FSA nor in any directive given to prisoners.”

Pavlo’s report is consistent with email complaints I have gotten from prisoners that no one ever suggested that the needs surveys served any necessary purpose.

Pavlo quoted Emery Nelson of the BOP is quoted as saying, “Completion of the self-assessment survey is only one factor which determines when an inmate begins earning FSA time credits.”

We’re Not Listening to You: The DOJ Office of Inspector General told BOP Director Colette Peters two weeks ago about an aspect of its recent investigation into sexual abuse of inmates by BOP employees that it found troubling.

dontbelieve221027“These concerns arose when the OIG recently inquired of the BOP’s Office of Internal Affairs (OIA)… about a disciplinary action taken by the BOP following an OIG investigation of alleged sexual abuse by a BOP employee. In response to our inquiry, we were told by OIA that, in cases that have not been accepted for criminal prosecution, the BOP will not rely on inmate testimony to make administrative misconduct findings and take disciplinary action against BOP employees, unless there is evidence aside from inmate testimony that independently establishes the misconduct…”

OIG told Director Peters that BOP’s refusal to rely on inmate testimony to make misconduct findings in administrative matters “is inconsistent with the fact that such testimony is fully admissible in criminal and civil cases, and creates significant risks for the BOP in its handling of administrative misconduct matters. Inmate testimony alone has been found sufficient, and with corroborating evidence is often found sufficient, to support criminal convictions of BOP employees, where the evidentiary standard is proof beyond a reasonable doubt. In short, inmates are not disqualified from providing testimony with evidentiary value in federal courts, and there is no valid reason for the BOP to decline to rely on such testimony… where the evidentiary standard is the preponderance of the evidence. In addition, the OIG found that in the context of sexual misconduct cases, BOP policy and federal regulations, specifically those DOJ regulations implementing the Prison Rape Elimination Act (PREA), require the credibility of an alleged victim to be assessed on an individual basis and not be determined by the person’s status as an inmate.”

After the OIG provided the Bureau of Prisons with a draft of its report, BOP quickly denied that it had ever said it didn’t believe inmates as a matter of policy.  The Inspector General was unimpressed:

However, contrary to this assertion, the statements made by the OIA to the OIG as reflected in this memorandum were made by OIA on multiple occasions. Moreover, as described later in this memorandum, we found that in cases where the OIG substantiated BOP employee misconduct relying on inmate testimony the OIA has, on more than one occasion, sent less serious findings to the BOP’s Employment Law Branch (ELB) and the BOP institution where the subject employee works.

So now who doesn’t believe whom?

Forbes, Bureau Of Prisons’ Failure To Communicate First Step Act (October 15, 2022)

DOJ Office of Inspector General, Notification of Concerns Regarding the Federal Bureau of Prisons’ (BOP) Treatment of Inmate Statements in Investigations of Alleged Misconduct by BOP Employees (October 12, 2022)

– Thomas L. Root

BOP Delivers New Earned-Time Credit Restrictions – Update for September 14, 2022

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

THE GOOD, THE BAD, AND THE UGLY

thegood220914One provision of The First Step Act, signed into law in December 2018, allowed eligible inmates to earn credits toward an earlier release from prison, more halfway house or home confinement. The credits, called “earned time credits” or ETCs, were to be granted to prisoners participating in certain needs-based educational programs and productive activities. For every 30 days of successful participation, the prisoners could earn up to 15 days off their sentence up to a maximum of 12 months (365 days). ETCs could also be used to entitle the inmates to more halfway house or home confinement on a 1-1 basis: 30 days of ETC credit would earn 30 days more of home confinement, for instance.

The challenge for the Bureau of Prisons has been to keep accurate track of the credits earned by inmates. It is a multi-step analysis: First, is the inmate eligible to participate in the earned-time credit program? Second, has the inmate’s needs been properly assessed? Third, has the inmate enrolled in programming that addresses that need? Fourth, how many credits has the inmate earned in any given month?

When the BOP adopted the ETC system in January 2022, the system it enacted was 180 degrees opposed to the Draconian proposal the agency had floated previously. The adoption seems to have caught the BOP flat-footed, because it simply threw up its hands (figuratively speaking) and declared that any inmate eligible for the credits as of January 15th was assumed to have participated in eligible programs for every day since December 21, 2018 (or when the inmate arrived in the system, whichever was later).

Sweet deal. As a result, thousands of inmates were released in the days following the January adoption date.

But every Christmastime ends, and so did the BOP’s ETC giveaway. Since January 15, the agency has struggled with how to quickly calculate inmate ETCs on a rolling basis. In April, the BOP revealed in a court case that it was developing a computer program – an “auto-calculation” system – to update each inmate’s ETC credits continuously. The BOP estimated Auto-Calc would be implemented by about August 1.

The BOP finally delivered its Earned Time Credit “Auto Calculation” system last Thursday. “On time and under budget” is not a mantra at the Bureau. Delivery took about 50% longer than the BOP predicted it would. And, as Walter Pavlo said in Forbes last Friday, it “landed with a thud.”

Why the thud? The Auto-Calc system was accompanied by a memo that announced several interpretative rules the BOP is imposing by fiat. You know, rules that interpret other rules. And unlike the adoption of last January’s formal rules, there was no rulemaking proceeding, no “notice and comment” period, and scant indication the changes were coming.

The First Step Act spelled out prisoner eligibility in detail, But that hasn’t stopped the BOP from adding its own bells and flourishes.

The good news in the memo (such as it is) is that

• the BOP’s official stance is that ETCs will be applied first to reduce sentence length, and second to more halfway house and home confinement. The agency had been doing that since last January, but it had never announced that as BOP policy. Given how arbitrary the BOP can be, the announced adoption of the reduction-first approach as policy is a good thing.

• any halfway house or home confinement awarded using ETCs will be granted “in addition to release needs-based recommendations made under the Second Chance Act.” In other words, if the Second Chance Act would have entitled a prisoner to placement in a halfway house for six months even without ETCs, and you have 120 days of ETC credit applied to halfway house, you would be placed for 10 months.

• the Auto-Calc system will update ETCs monthly.

• the BOP verified that ETCs may be applied toward early release in addition to the early release benefit for RDAP graduates. In other words, RDAP now double counts toward early release, up to 12 months off for successful completion of the program as well as an additional credit of up to 150 days ETC credits for finishing RDAP.

• In order to earn 15 days credit for every 30-day period instead of 10 days for every 30-day period, inmates need to (1) start out with a low- or minimum-risk PATTERN level; OR (2) have dropped to a low- or minimum-risk PATTERN level and maintained it for two consecutive assessment periods. This is good news, because a number of inmates who entered the system with low or minimum scores have been told in the past few months that they have to have two consecutive assessment periods under their belts before getting 15 days of ETC credits in a month.

thebad220914But there is bad news in the memo, too:

• The memo codifies what I first learned last month. The BOP will not credit ETCs toward early release for inmates who are 18 months from release. At 18 months, the BOP says, “the release date becomes fixed, and all additional ETCs are applied toward” halfway house or home confinement.

This is a slight improvement over what the BOP was saying a month ago. In a declaration the BOP filed in Marier v. Bergami, the BOP manager said the cutoff was 24 months. But it still means, practically speaking, no inmates with sentences of less than 42 months will have enough time to collect ETCs entitling them to 12 months off their sentence (the maximum allowed by law).

This also means that unless an inmate can complete the in-custody portion of RDAP with at least 18 months left, the RDAP ETCs will apply to more halfway house or home confinement, not more time off.

Pavlo complained in Forbes last week that “with this more restrictive condition, BOP is even going against the Department of Justice’s intent of FSA which was to ‘transfer eligible inmates who satisfy the criteria in § 3624(g) [awarding of FSA credits] to supervised release to the extent practicable, rather than prerelease custody [halfway house and home confinement]’… In Fiscal Year (FY) 2019, the cost of incarceration fee for a federal prisoner at a federal facility was $107.85 per day; in FY 2020, it was $120.59 per day. It costs less than half that to place a minimum security prisoner on home confinement and it costs nothing if the prisoner is not in custody at all. Thousands of prisoners will be affected by this unilateral decision by the BOP. For many prisoners, their date for returning to society has been prolonged by a memorandum that is both unfair and arbitrary.”

• The memo states that “inmates who refuse or fail to complete any portion of the needs assessment and/or refuse or decline any program recommended to address a specific identified need area, are considered “opted out” and will not earn ETCs.” This hardly seems to be bad news, except that it assumes that the failure to complete needs assessment or refusal or declining to take a program is intentional.

More than one inmate has already reported that he or she was marked “refused” for not taking a program that simply was not available at the time. One inmate only saved from being marked “refused” by proving that he had sent the staff member responsible for the program a request to be put on the “wait list.”

• Starting eight months ago, the memo says, “all components of the SPARC-13 needs assessment must be complete to be eligible to earn ETCs. Failing to do so is considered ‘opted out.’ In other words, if an inmate fails to complete a required survey to enroll in a recommended program which addresses a specified need, the inmate will not be eligible to earn FTCs.”

The SPARC-13 is the Standardized Prisoner Assessment for Reduction in Criminality, a battery of surveys mandated by the BOP’s Initial Review of the SPARC-13 Needs Assessment System, issued last March. Judging from inmate reports, few have been given the surveys to complete. Even if they are asked to do so now, it is not clear whether any programs completed between January 15 and September 8 will count if the SPARC-13 was not done prior to that time.

• the memo states that “while inmates continue to earn FTCs, inmates can only apply the FTCs if they have no detainers, unresolved pending charges, and/or unresolved immigration status issues.”

These restrictions do not appear in the First Step Act and make little sense. It is logical that the BOP would not send inmates to detainers to halfway house or home confinement. That is a long-standing limitation. But there is no security issue in letting inmates with detainers benefit from shortened sentences. If an inmate gets a year off, the BOP simply lets the detaining agency know to pick up the inmate on Sep 12, 2022, instead of Sep 12, 2023, for instance.

Pavlo quotes a retired BOP employee as saying of the memorandum, “BOP is creating their own language and leaving the discretion in the hands of case managers to interpret who is eligible and who is not. They have completely disrespected the intent and FSA law states.”

theugly220914Finally, the ugly. The memo notes that “as a reminder, the unit team will determine an inmate’s eligibility to earn FTCs based on the current conviction and prior criminal convictions.” This means that basic decisions applying the statute are decentralized among close to a thousand unit teams. Given some of the errors already made by unit teams unschooled in the FSA, the amount of administrative remedy and judicial review such decision-making decentralization will spawn is likely to be quite significant.

A final thought: The Administrative Procedure Act (5 USC § 552), with its “arbitrary and capricious” standard, governs just about all federal agencies. However, Congress specifically stated in 18 USC § 3625 that the APA does not “apply to the making of any determination, decision, or order under this subchapter.”

The catch here is that § 3625 is specific to 18 USC Chapter 229, Subchapter C. The portion of the FSA establishing ETCs is set out in the newly-created Subchapter D. Congress either decided not to exempt the BOP’s implementation of the ETC from the APA, or it just forgot to do so. Either way, the ETC program appears to be subject to APA challenges, something new for BOP management.

Forbes, Bureau of Prisons’ Interpretation of First Step Act Will Leave Thousands of Inmates Incarcerated (September 9, 2022)

BOP, Memo on Implementation of Auto-Calculation (September 8, 2022)

BOP, Initial Review of the SPARC-13 Needs Assessment System (Mar 2022)

Declaration, ECF 10-1, Marier v. Bergami, Case No 21C50236 (ND Ill, Aug 9, 2022)

– Thomas L. Root

Back to School – Update for September 1, 2022

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

A LEGISLATIVE PRIMER

hateschool220902For those of you who sat in the back row in high school government class throwing spitballs, here’s what you missed about how our laws are made.  Every year or so, I find it necessary to cover the Congressional essentials. Now, with the Senate and House about to  return from their August vacations in another week or so, here are a few things to remember about the Congressional legislative process.

First, a “Congress” is a limited-time deal, a two-year conclave of lawmakers. The current Congress, called the “117th Congress,” will end on January 2, 2023. A new one, the 118th Congress will begin its two-year run begin the next day.

During the two-year Congress, thousands of bills and resolutions will be proposed. Few will get passed. The ones that don’t make it through the House and Senate and to the president’s desk for signing die when the 117th Congress ends.

Of the many criminal justice bills that have been introduced since January 2, 2022, only two have any real chance of passage. The EQUAL Act (S.79) – which reduces crack penalties to match cocaine powder penalties – has passed the House but awaits a Senate vote. The MORE Act (HR 3617) – which would decriminalize marijuana – has passed the House twice but is awaiting Senate action.

The mid-term election comes the first week of November. Every member of the House is up for re-election, as are one-third of the senators. And that’s a problem. A 2/3 majority the Senate supports crack cocaine reform, and an even greater majority supports decriminalization of marijuana. So passage ought to be easy, right?

demagogue220902The biggest obstacle to passing either of these bills right now is the upcoming election. A strong anti-crime sentiment has taken root in the country, and to avoid getting swept up in an anti-crime tide, the Wall Street Journal said last week, “Democrats will have to show they’re serious about the issue.” hardly anything about crack cocaine punishment and marijuana decriminalization have anything to do with the kinds of local violent crime they concern the public. Nevertheless, you can be sure that the Senate Majority Leader – who controls the agenda – will not force senators to take a stand on the bills prior to the midterm election. No legislator wants to do the right thing on the EQUAL Act, for example, only to have an opponent at home claim that the senator voted to let drug dealers out of prison early.

The problem with cannabis reform is different. While virtually no one objects to decriminalization, the real battle over marijuana relates to banking regulation and taxation. A group of senators led by Richard Durbin (D-IL) has proposed their own alternative bill, And that has taken the wind out of the sails for the MORE Act.

The bottom line is this: The financial stakes in decriminalizing and regulating marijuana across the nation are huge. Concerns about adjusting federal sentences for what is likely not to be more than 20,000 prisoners (less than .01% of the population) is not important enough to control the debate.

time161229There aren’t many legislation days left for the 117th Congress. While it is not clear that EQUAL or MORE will make it through the Senate, it is safe to predict that no other criminal justice legislation – such as First Step retroactivity, prohibiting punishment for acquitted conduct, or adjustments to the elderly home detention pilot program – will become law in this Congress. The prospect is that come January, we’ll be starting over.

Wall Street Journal, Don’t Count Out Crime as a 2022 Midterm Issue (August 18, 2022)

The American Prospect, Democrats in Danger of Missing the Marijuana Moment (August 25, 2022)

JDSupra, Cannabis and Social Justice Reform: Are We Doing Enough? (August 25, 2022)

– Thomas L. Root

Musings on a Slow Month – Update for July 26, 2022

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

THE GOOD, THE BAD, AND THE WEIRD

summertime220725In the only good news to come from Washington so far this sleepy July, Senate Democrats have introduced a bill to decriminalize marijuana at the federal level this week, although the legislation faces long odds in the evenly divided chamber.

Majority Leader Charles Schumer (D-NY) worked with Sen Cory Booker (D-NJ) and Ron Wyden (D-OR) on the measure. The senators circulated a draft of the bill last year and made tweaks after feedback from Senate committees.

The Cannabis Administration and Opportunity Act (S.4591) would remove marijuana from the list of drugs covered by the Controlled Substances Act. States, however, can still maintain and create prohibitions on producing and distributing marijuana.

marijuana160818The CAOA is the Senate’s answer to the MORE Act (H.R. 3617), passed in the House last spring on a 220-204 vote. Like the MORE Act, the CAOA will require all federal non-violent marijuana-related convictions and arrests be expunged within a year. Some lawmakers on both sides of the aisle have criticized Schumer for trying to push through a broad cannabis reform bill at the expense of a marijuana banking bill that has greater bipartisan support.

The bad is that the EQUAL Act (S.79), which passed the House (361-66) last September, remains stalled in the Senate. The Act, which would equalize sentences for crack and powder cocaine (and offer retroactivity to anyone serving a crack offense now) has well over 60 votes in the Senate. The Senate Majority Leader – the guy who schedules votes on bills – is a cosponsor. So what’s the holdup?

In a long article on a crack cocaine defendant who finally got compassionate release, the Mississippi Free Press last week reported, “FAMM President Ring told the Mississippi Free Press more about what he sees as the senators’ political calculations. ‘The problem is that lawmakers are scared that if this bill comes up, Republicans will be allowed to offer amendments to it because that’s usually how the process works,’ he said.

Ring said that votes on amendments unrelated to the bill can be “weaponized by political opponents… As a result, the political calculation has been made to shelve the bill in the Senate.”

crackpowder160606In addition, Dream Corps JUSTICE Policy Director Kandia Milton, in June 23, 2022, letter, indicated that the group is concerned about a competing Senate bill sponsored by Sen Charles Grassley (R-IA) — the SMART Cocaine Sentencing Act, S.4116 – that “maintains a disparity between these two forms of the same drug (2.5-1), lower the mandatory minimum threshold to 400 grams from 500 grams and, worst of all, mandates that the U.S. Attorney must approve all petitions for retroactivity.” Milton wrote. “Our sense of urgency is driven by the reality that if we do not pass [EQUAL] by the August recess, we won’t get another clean shot until after the midterm elections, an unpredictable two-month window at the end of the year,” he added. “We are very close to eliminating the disparity between crack cocaine and powder cocaine, and we recognize there is more work to be done.”

The weird: Two weeks ago, the Senate Judiciary Committee whiffed for a second time on approving the nomination of the seven candidates for the Sentencing Commission. At the beginning of last Thursday’s work session, Durbin said, “We have decided on a bipartisan basis to hold over for a second time the Sentencing Commission nominees while members are in… we’re going to try to find a path for all seven nominees to move together, which I think would be a positive thing and maybe even historic around here.”

The terse statement suggested some substantial pushback on one or more nominations. Laura Mate, who signed a 2014 letter to Congress supporting more reasonable mandatory minimums for sex offenders, and former federal judge John Gleeson, whose criticism of the Guidelines while on the bench was legendary, were both pilloried by several Republicans during their June nomination hearing.

Nevertheless, last week the Committee finally got the job done. It advanced the slate of seven nominees to the floor of the full Senate for its approval, bringing the Commission one step closer to being able to amend the Sentencing Guidelines.

noquorum191016The USSC has been unable to implement the First Step Act or, for that matter, do anything else after losing its quorum just as the bill was enacted in December 2018.

The Senate Judiciary Committee voted to send to the full Senate four Democrat and three Republican candidates nominated by President Joe Biden to revitalize the Commission.

Committee chairman Durbin told the Committee that while he had reservations about some nominees, it was important to move them forward as a group to “enable the commission to get back to doing its work.” He said, “[T]he Sentencing Commission has not had a quorum for three years. With no quorum, the Commission—created in 1984 and tasked by Congress to promote transparency and consistency in sentencing—has been unable to update the sentencing guidelines to provide guidance to judges. Today, we make an important step to rectify the situation… [and] enable the Commission to get back to its work.”

Cannabis Administration and Opportunity Act (S.4591)

Seeking Alpha, Senate Democrats-backed marijuana legalization bill coming next week (July 14, 2022)

Bloomberg, Pot Gets Senate’s Attention in Long-Shot Decriminalization Bill (July 14, 2022)

Politico, Schumer’s legal weed bill is finally here (July 21, 2022)

KYFR, North Dakota lawmakers, advocates push for equal sentencing in federal cocaine and crack crimes (July 12, 2022)

Senate Judiciary Hearing (July 14, 2022)

Mississippi Free Press, ‘Model Inmate’: Father Finally Has Crack Sentence Reduced as U.S. Senate Shelves Reform Bill (July 22, 2022)

Independentcloud.com, Cannabis Bill Senate: US Democrats Demand Senate Pass Its Own Marijuana Banking Bill (July 21, 2022)

Reuters, US Senate committee advances nominees to restock sentencing panel (July 21, 2022)

Sen Richard Durbin, Judiciary Committee Advances Ten Nominees, Including Two Judicial Nominees, Seven Sentencing Commission Nominees, And An Assistant Attorney General (July 21, 2022)

– Thomas L. Root

NBC Says DOJ Failing to Assign Earned-Time Credits – Update for July 6, 2022

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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.

NBC NEWS ACCUSES DOJ AND BOP OF BOTCHING EARNED-TIME CREDITS

screwup191028An NBC report aired last Sunday blasted the Dept of Justice for botching the award of First Step Act earned-time credits. “Thousands of nonviolent federal prisoners eligible for early release under a promising Trump-era law remain locked up nearly four years later because of inadequate implementation, confusion and bureaucratic delays, NBC quoted prisoner advocacy groups, inmates and BOP officials as saying.

Even the Biden administration’s attempt to provide clarity to the First Step Act by identifying qualified inmates and then transferring them to home confinement or another form of supervised release appears to be falling short, according to prisoner advocates familiar with the law.

“It shouldn’t be this complicated and it shouldn’t take this long,” NBC quoted Kevin Ring, president of FAMM, as saying. “Here we are, four years later, and it’s maddening.”

The BOP gave NBC data showing that as of June 18, more than 8,600 inmates have gotten sentence recalculations and are slated for earlier release due to ETCs. But the BOP’s own data identified about 66,600 inmates eligible to receive ETCs.

NBC quoted BOP officials as saying, “We have no data which suggests inmates had their release dates delayed.”

Others are not so sanguine. “We estimate that there are thousands of inmates who will not receive the full benefit — days off of their federal prison sentence — of the First Step Act simply because the agency is uncertain how to calculate these benefits,” Walter Pavlo, president of the consulting firm Prisonology LLC, and a Forbes contributor, told NBC.

funwithnumbers170511Making the logjam worse is the revision to PATTERN a month ago. While the change increase the number of points an inmate could have while still being eligible, the change quietly modified some of the point reductions inmates could earn. Completing a GED used to earn a -4, but now only earns a -2. Completing RDAP fell from a -6 to a -4. Past points for violence increased as well.

The effect of the change was to make some inmates who had been eligible for ETCs suddenly ineligible, further jamming up the calculation works. What’s worse, some inmates who had received adjusted release dates have had those dates rescinded.

NBC, Thousands of federal inmates still await early release under Trump-era First Step Act (July 3, 2022)

DOJ, First Step Annual Report (April 17, 2022)

– Thomas L. Root

Concepcion’s Concept: Discretion on Resentencing is Presumed – Update for June 29, 2022

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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 CONCEPCION HOLD LESSONS FOR COMPASSIONATE RELEASE?

The Supreme Court ruled on the final two criminal cases of the term on Monday (although there are six more October Term 2021 cases yet to be decided before the end of the week).

crack-coke200804Back in 2009, Carlos Concepcion pled guilty to distributing at least five grams of crack cocaine, and was sentenced to 228 months in prison. The following year, Congress passed the Fair Sentencing Act, which brought crack sentences more in line with powder cocaine sentences, down from a 100:1 ratio to an 18:1 ratio.

But the Fair Sentencing Act was not retroactive, so people sentenced before it was passed – like Carlos – could not benefit from it. Only when the First Step Act (FSA) passed in 2018 were the benefits of the Fair Sentencing Act extended to the Carlos Concepcions of the world.

Under FSA § 404, Carlos was entitled to apply to his sentencing court for resentencing at a lower level. Like most inmates – whose resources are only sufficient to pay for some telephone calls home and a few items in the commissary – Carlos could not afford a lawyer, so he filed pro se.

careeroffender22062Complicating Carlos’s case was the fact that under the advisory Sentencing Guidelines, he was deemed to be a career offender. Career offender status, a label that is easily applied to people who have hardly spent their lives as a criminal, sends a defendant’s minimum sentencing range guideline into low earth orbit. Carlos’s range was no exception. Under the statute, Carlos faced a minimum 5-year sentence, but his advisory sentencing range as a Guidelines career offender started at 17½ years.

The government argued that Carlos’s Guidelines sentencing range did not change despite the fact that the Fair Sentencing Act lowered his minimum sentence to zero, because the career offender guidelines were not based on drug amount or statutory minimum sentences. Carlos responded that he should no longer be considered a career offender because one of his prior convictions was vacated and his prison record showed evidence of rehabilitation through his participation in drug and vocational programs, spiritual growth, and a solid reentry plan.

Carlos’s sentencing judge sided with the government, holding that because Carlos’s sentencing range remained the same, Carlos could not rely on the Fair Sentencing Act for a lower sentence.

Last Monday, the Supreme Court ruled in favor of Carlos. Justice Sonia Sotomayor, writing for a 5-4 majority, said that “Federal courts historically have exercised… broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”

discretion220629Congress did nothing in the First Step Act to “contravene this well-established sentencing practice,” Sotomayor said. “Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, argues that the Concepcion ruling has an impact well outside the seemingly limited FSA Sec. 404 resentencing. “Specifically,” he wrote, “I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.

Berman noted:

There is a deep circuit split about whether non-retroactive changes in sentencing law may constitute “extraordinary and compelling reasons” for compassionate release. Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute ‘extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise. And yet, this language from the Supreme Court’s opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained…

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution….

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much…. Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

Berman argues that the Supreme Court’s language about a sentencing judge’s broad discretion “when considering a sentence modification is directly relevant to federal judges’ consideration of so-called compassionate release motions.”

compassion160124There is nothing in 18 USC § 3582(c)(1)(A)(i) (the statute on sentence reductions, generally if inaccurately known as “compassionate releases”) that in any way limits a judge in what he or she may consider in fashioning a lower sentence, or for that matter, in deciding whether to impose a lower sentence at all. That should be game, set and match for the issue of the limits of a court’s discretion on deciding a compassionate release motion.

One interesting twist: the Sentencing Commission will soon be reconstituted, and it seems clear that the new commissioners consider rewriting U.S.S.G. § 1B1.13 – the Guidelines policy statement on compassionate releases – as job one. If a rewritten § 1B1.13 limits a sentencing court’s discretion in granting or denying a compassionate release motion, would such a limitation be one “set forth by Congress in a statute or by the Constitution?” Sentencing Guidelines must be submitted to Congress, but go into effect unless the Senate otherwise directs. And the compassionate release statute requires a sentencing judge to ensure that any sentence reduction “is consistent with applicable policy statements issued by the Sentencing Commission.”

But that’s a question for another time (specifically, after a new § 1B1.13 goes into effect, which probably will not be before November 2023. For now, movants for compassionate release would do well to apply Prof. Berman’s broad interpretation of Concepcion’s holding.

Concepcion v. United States, Case No 20-1650, 2022 U.S. LEXIS 3070 (June 27, 2022)

ABA Journal, In unusual lineup, SCOTUS rules for pro se prisoner who sought lower sentence under First Step Act (June 27, 2022)

Sentencing Law and Policy, SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors (June 27, 2022)

– Thomas L. Root

Supreme Court’s Final Days Include Criminal Decisions – Update for June 20, 2022

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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.

BIG CRIMINAL DECISIONS STILL PENDING WITH ONLY TWO WEEKS OF SCOTUS TERM LEFT

The Supreme Court held two opinion days last week, but the most-watched criminal cases – United States v. Taylor, Concepcion v. United States and Ruan v. United States – remain among the 18 opinions yet to be issued before the Court’s term ends on June 30.

scotus161130Most people expect the two “big” cases, New York State Rifle & Pistol Assn v. Bruen (a 2nd Amendment case) and Dobbs v. Jackson Women’s Health Organization (the possibly-leaked abortion decision) to happen on the last day. But Taylor, which concerns whether an attempted offense that would be a “crime of violence” for application of 18 U.S.C. § 924(c) – the mandatory consecutive sentence for using a gun – is a “crime of violence” if it is only attempted but not completed – has been hanging around for six months since its December argument. Concepcion, which concerns proper resentencing considerations in First Step Section 404(b) resentencing, and Ruan, which considers physician liability under 21 USC 841(a), was argued in the Court’s February sitting.

Ohio State University law professor Doug Berman wrote last week in his Sentencing Law and Policy blog that “the standard and ready explanation, of course, for why decisions in Taylor and Conception may be taking a long time is because the Justices are (perhaps deeply?) divided in these cases, and so we should expect multiple (and lengthy?) opinions. And, to add a bit of spicy speculation, I am inclined to guess that the delay is also partially a function of the Justices in these cases not being divided neatly along the “standard” ideological lines.”

rules201202The only case of interest to defendants last week was Kemp v. United States. In that case, petitioner Dexter Kemp filed a 28 USC 2255 motion in 2015. The District Court dismissed the motion as untimely, and Dix did not appeal. But three years later, he sought to reopen his 2255 under Federal Rule of Civil Procedure 60(b)(1) and (6), rules which permit a court to reopen an otherwise final judgment if certain conditions are met. A 60(b)(1) motion has to allege that a mistake was made, and must be filed within a year, Relief under Rule 60(b)(6) for any other just reason can be filed at any time, but is available only when the other grounds for relief specified in the Rule don’t apply.

Dex was right that the District Court had goofed on dismissing his § 2255 motion as untimely. In a just world, his § 2255 should be reopened, and that would be that. But in the real world, it’s not that easy.

The Supreme Court held that a judge’s error of law is a “mistake” within the meaning of Rule 60(b)(1), meaning that Dex’s motion fit under Rule 60(b)(1). Subject to the Rule’s one-year limitations period, Dex’s motion was late and had to be dismissed as untimely.

Sentencing Law and Policy, Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Conception, two little sentencing cases? (June 13, 2022)

Kemp v. United States, Case No. 21-5726, 2022 U.S. LEXIS 2835 (June 13, 2022)

– Thomas L. Root

ETC FUBAR at BOP, As New Director Search Finally Over – Update for June 16, 2022

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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.

BOP: DON’T CALL US, WE’LL CALL YOU ON EARNED TIME CREDIT CALCULATION

If there is a common refrain in emails coming into this Newsletter in the past several months, it is that inmates are not getting their earned-time-credit calculations from their Unit Teams.

don'tcallus220616A recap: The First Step Act authorized the award of credits to inmates who successfully complete programs that have been found to reduce recidivism. The acronym-crazy government calls them “EBRRs,” that is, “evidence-based recidivism reduction” programs. Inmates could receive “earned time credits” (ETCs) that will reduce their prison time up to a year, grant them more halfway house or home  confinement, and even get them more phone time and commissary.

(Confusingly, the government called ETCs “FTCs” for awhile – “federal time credits” – but seems to have settled on the preferred terminology now).

Inmates are classified using a system called PATTERN according to their likelihood of recidivism.  As they complete programs, age, and behave, their PATTERN score decreases, increasing the number of ETCs they may receive.

So all is roses in the BOP. Inmates are happily earning ETCs, the staff is contentedly helping prisoners forsake their prior evil ways…

FUBAR220616Right. In fact, implementation of ETCs (and awarding time off) is becime a FUBAR.

Last week, Walter Pavlo reported in Forbes on an internal BOP memo acknowledging the frustration:

Institutions are likely getting a lot of calls from outside family members and/or questions from the inmates themselves. We ask that you refrain from referring inmates or their family members to the DSCC or Central Office. As we move toward a fully automated auto-calculation process for the calculating and awarding of FTCs, neither the DSCC nor the Corrections Programs Branch are directly involved in the process.

Forbes said the memo directed institutions to give inmates and their family members a “canned response” asking “for their patience” during the implementation of an automated credit calculation system:

While all eligible inmates are able to earn credits, the Agency is prioritizing those inmates who are within 24 months of their Statutory Release date and eligible to both earn and apply Federal Time Credits. The Agency is in the final stages of development and testing of an auto-calculation app, and once finalized all eligible inmates will have their records updated and the Federal Time applied consistently with the Federal Rules language.

Late breaking news: The BOP has finally found someone who will admit to being considered for the director’s slot, replacing Michael Carvajal (whom Sen. Richard Durbin [D-IL] wants to usher into retirement as quickly as possible). 

Could MIke Carvajal finally be leaving the building?
Could MIke Carvajal finally be leaving the building?

The Oregon Capital Chronicle reported yesterday that Colette Peters, director of Oregon’s prison system, confirmed to the paper that she is a finalist for the BOP Director’s job.

She has been director of the Oregon Department of Corrections since 2012, where she is in charge of  4,400 employees and 12,124 prisoners.

As director of the Oregon prison system, she changed the agency’s reference to “inmates.” Oregon’s prisoners became “adults in custody.”

Forbes, As Biden Touts Action On First Step Act, Federal Prisoners Await Action From Bureau Of Prisons (June 4, 2022)

Oregon Capital Chronicle, Oregon’s prison director a finalist to lead federal prison system (June 15, 2022)

– Thomas L. Root

Supremes Burning Midnight Oil To Finish Term – Update for June 8, 2022

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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.

SUPREME COURT FACES HISTORIC BACKLOG IN FINAL MONTH OF TERM

The Supreme Court – waiting until the bitter end to do the largest share of its work in more than 70 years – has scheduled a rare second opinion day for today.

scotus161130At 10 am, the Court will issue one or more opinions. It still has a lot to choose from.

The court is scheduled to hand down 30 more opinions, 48% of its expected total in argued cases, as its 2021-22 term ends in slightly more than three weeks. While most people are awaiting rulings that could hold that abortion is not a constitutional right but carrying a concealed gun is, there are five decisions of particular interest to federal inmates and defendants:

• Concepcion v. United States, Case No. 20-1650. Issue: Whether, when deciding if it should “impose a reduced sentence” under Section 404(b) of the First Step Act (Fair Sentencing Act retroactivity), a district court must – or even may – consider intervening legal and factual developments.

• Ruan v. United States, Case No. 20-1410. Issue: Whether a physician charged with prescribing controlled substances outside the usual course of professional practice may be convicted under 21 USC § 841(a)(1) without regard to whether, in good faith, he or she “reasonably believed” or “subjectively intended” that the prescriptions fall within that course of professional practice.

• United States v. Taylor, Case No. 20-1459: Whether 18 USC § 924(c)’s “crime of violence” definition excludes attempted Hobbs Act robbery (which could end up excluding all attempted crimes of violence from being predicates for § 924(c) offenses).

• Egbert v. Boule, Case No. 21-147: Whether one can sue a federal officer under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims.

• Kemp v. United States, Case No. 21-5726: Whether F.R.Civ.P. 60(b)(1) authorizes relief based on a district court’s error of law.

scotussplit190627The Supreme Court typically announces opinions on Monday, but as June progresses, more second opinion days like today are likely.

Supreme Court Faces Historic Case Backlog as Fractious Term Comes to an End (June 1)

The New York Times, We preview the five biggest rulings expected from the Supreme Court in the next few weeks (June 8, 2022)

– Thomas L. Root

Earned Time Credits Just Got Easier to Spend – Update for June 7, 2022

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

PATTERN CHANGES MAKE MANY MORE ELIGIBLE FOR CREDITS

In April, the Dept of Justice told Congress that it would roll out a new version of the PATTERN recidivism risk measurement system in May, one that contained adjustments it said would improve accuracy and possibly benefit up to 33,000 federal prisoners.

Nothing has been publicly announced since, although a lot of inmates have reported that their categories were changing while their PATTERN point scores were not. A hard-to-find report by the Attorney General I obtained last week confirmed that while no scoring categories have changed in the revised PATTERN system – known as PATTERN 1.3 – the cut points did.

PATTERNsheet220131Cut points are crucial, being the level at which an inmate’s recidivism rating changes from “minimum” to “low,” from “low” to “medium,” and from “medium” to “high.” Because the First Step Act generally does not let anyone with a “medium” or higher risk level cash in earned time credits (ETCs), a prisoner’s level can make a difference of up to a year on sentence length, and enhanced home confinement or halfway house.

It is now harder for a male to be a PATTERN “minimum” – the former cut point of “8 or less” fell to a new cut point of “5 or less” – although the female “minimum” cut point rose from “5 or less” to “7 or less.” But the big change is from “low” to “medium.”

The former male cut point between “low” and “medium” rose from 30 to 39. The women’s “low to medium” cut point jumped from 31 to 38. The former “medium to high” cut point went from 44 to 55 for males and 31 to 53 for females.

Under the old PATTERN, 40% of males were “minimum” or “low.” Under PATTERN 1.3, that number jumped to 68%. Female “minimums” and “lows” increased from 78% to 86%. The PATTERN 1.3 changes made 33,070 more inmates eligible to use their ETCs.

cutpoints220607PATTERN is still criticized by some commentators for being insufficiently dynamic, meaning that too much of what goes into scores – like age and criminal history – cannot be changed despite a prisoner’s best efforts. The DOJ report asserted that “PATTERN 1.3 displays dynamic validity… Across the four gender/recidivism tools examined, approximately 25 to 35% of individuals had a lower [risk] designation during their last assessment compared to their first, and between 3 and 5% had a higher risk designation.” The DOJ position suggests that category changes in future PATTERN amendments are unlikely.

PATTERN 1.3 is a welcome change, but real problems with the First Step Act earned time credits remain. Writing in Forbes last week, Walter Pavlo reported that “according to insiders at the BOP, prisoners and former executive staff with connections to the current state of the BOP as it relates to the FSA, there is ‘mass confusion at every institution,”’ and that the Designation and Sentence Computation Center, the entity ultimately responsible for calculating sentence duration, is backed up and the programming is not in place for FSA. The result is that thousands of prisoners are incarcerated beyond their legal release date.”

bureaucrat200421Pavlo wrote that “BOP staff who have no official program statement to work from are spreading misinformation to prisoners. Many prisoners are being told that they do not qualify for FSA credits for a variety of reasons, [and] many those reasons are just not true. As a result, prisoners are not only confused but have no place to go to get clarification. Now, some are going to Court.”

DOJ, First Step Act Annual Report – April 2022

Forbes, First Step Act Inaction Keeps Federal Inmates In Prison (May 30, 2022)

– Thomas L. Root