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A Fortnight of Clemencies? – Update for January 14, 2025

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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.

BIDEN’S LAST WEEK (AND TRUMP’S FIRST ONE)

imouttahere250114Although time grows short, the White House has not yet walked back Biden’s promise to issue additional pardons and commutations before he leaves the White House for the last time.

Last week, Truthout.org called on Biden to include in his clemency announcement people serving life sentences under Sentencing Guidelines that have been changed (but the changes not being retroactive). Truthout said, “According to the Sentencing Project, ‘one in seven people in U.S. prisons is serving a life sentence, either life without parole, life with parole or virtual life (50 years or more), totaling 203,865 people’ as of 2021. This is the highest number of people in history — a 66% increase since 2003, the first time the census was taken. Many of these people facing ‘death by incarceration’ were sentenced under guidelines that are no longer used.”

Writing in Forbes, Walter Pavlo last week suggested that consistent with Trump’s desire to trim federal spending, he could double down on First Step Act implementation. Pavlo said, “Trump will likely be frustrated that more has not been done on the First Step Act since his first term in office… The purpose of the First Step Act was to put more minimum-security offenders back home sooner but that has not occurred to the level it could. More prisoners in the community means less reliance on aging facilities that Congress seems unwilling to fund to bring up to acceptable standards.”

creditsign181227Pavlo suggested increased Bureau of Prisons’ use of for-profit halfway houses, besides the network of nonprofit halfway bouses now relied on, and updating the BOP’s security and custody classification system to no longer exclude noncitizens and non-contact sex offenses from camps. As well, he said that the Trump Administration urge Congress to broaden FSA credits to include some of the 68 categories of offenses now prohibited from credits, including some sex offenses, some terrorism charges, threats against government officials and 18 USC § 924(c) gun charges.

Finally, he proposed expanding RDAP eligibility to include those without documented prearrest drug and alcohol use.

Pavlo argued, “The BOP’s challenges are unlikely to be solved through increased funding alone. Instead, the focus should be on fully implementing existing programs like the First Step Act and RDAP, revising outdated policies that hinder efficiency and working with Congress to make targeted legislative adjustments.”

All of this is so, but as a Federal News Network reporter noted a few weeks ago, “I don’t think [the BOP] is high on the Trump team’s agenda, but [it] is a deeply distressed agency.”

Conservative columnist Cal Thomas last week argued that some of the targets of Trump’s desire to save money “are familiar, but one that is never mentioned is the amount of money that could be saved by releasing or not incarcerating nonviolent offenders in the first place… That prison reform has not been on a top 10 list of issues for Republicans is no reason it can’t be added now. Saving money and redeeming a system that no longer benefits the incarcerated or the public is a winning issue.”

Last week, Fox News contributor Jessica Jackson wrote that in 2018, “Trump signed the First Step Act into law, delivering long-overdue reforms that both political parties had failed to achieve at the federal level for decades. It was a landmark moment… Now, as Trump returns to the White House, he has a historic opportunity to finish what he started. Two key reforms he could champion — modernizing federal supervision and expanding second chances — offer a chance to cement his legacy as the leader who transformed America’s approach to justice.”

trumpimback250114However, as of right now, the only criminal justice promise Trump has made is to promise to grant clemency to some or all of the 1,580 people charged or convicted of crimes arising from the January 6, 2021, riot on Capitol Hill.

Truthout.org, Biden Should Go Beyond Commutations for Death Row and Commute Life Sentences Too (January 8, 2025)

Forbes, How Trump Can Shake Up the Bureau of Prisons (January 6, 2025)

Federal News Network, Countdown to Trump II, and what to expect (December 26, 2024)

Washington Times, Prison and sentencing reform: Saving money in an overlooked place (January 6, 2025)

Fox News, Trump defied the odds to win a criminal justice victory in his first term. Could he do it again? (January 6, 2025)

Washington Post, The fate of nearly 1,600 Jan. 6 defendants depends on Donald Trump (January 6, 2025)

– Thomas L. Root

ACLU Drops Lump of Coal in BOP’s Stocking – Update for December 24, 2024

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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.

CLASS ACTION SUIT CLAIMS BOP VIOLATING FIRST STEP ACT ON FSA CREDIT RELEASES

The ACLU last Friday sued the Bureau of Prisons on behalf of eligible prisoners who are being denied the full use of credits awarded under the First Step Act because of insufficient capacity to place them in halfway house or home confinement.

roomatinn241224The lead plaintiff is Vanessa Crowe, a prisoner whose FSA credits entitle her to transfer to halfway house or home confinement today, according to the complaint. Although she should be spending the night before Christmas somewhere where no BOP creatures are stirring, she has been told by the BOP that she will not be transferred until May 2025 because there simply is no room at the halfway house inn.

The New York Times reported last Friday, “Tens of thousands of federal prisoners deemed to be at low risk of committing crimes again have found themselves in a similar predicament, languishing in lockup for as long as a year after they reached their official release date under the First Step Act, which intended to create a fast-track pathway to release.”

Credits – usable to reduce sentence length by up to a year and to provide additional halfway house or home confinement time – are awarded to prisoners for successful completion of programming designed to reduce recidivism. Evidence after five years shows a significant reduction in recidivism among people who have completed the programs.

The BOP has previously acknowledged that the halfway house/home confinement system has been overwhelmed by the sheer number of people with FSA credits to spend. Last summer, BOP Director Colette Peters told a Congressional committee, “There’s a lot of frustration with the adults in custody… We simply don’t have the capacity in the community.”

The lawsuit recognizes the halfway house/home confinement problem but claims the BOP has responded by deeming inmates’ use of FSA credits “as optional, rather than compulsory,” the Times said. The complaint itself states

Although the FSA provides that any earned time credits ‘shall be applied’ toward time in prerelease custody or supervised release where certain conditions are met… the BOP’s regulation provides that the BOP ‘may apply FSA Time Credits toward prerelease custody or supervised release’ where certain conditions are met… The BOP’s practice is consistent with its regulations. The BOP has taken the position in litigation, and the BOP’s employees have stated in fact declarations, that the BOP has discretion over whether and when to apply earned time credits.

(The emphasis is mine, not the complaint’s).

VanessacoalBOP241224The complaint seeks to represent as a class “all incarcerated people who have earned or will earn time credits under the First Step Act, who meet or will meet the prerequisites for prerelease custody in 18 USC 3624(g)(1), and who have not been or will not be transferred to prerelease custody on or before the date when their time credits equal their remaining sentences.”

The Times said BOP “officials did not immediately respond to a request for comment.”

New York Times, U.S. Prisons Flout Law by Keeping Inmates Past Release Date, A.C.L.U. Says (December 20, 2024)

Complaint, Crowe v. BOP, Case No 1:24-cv-03582 (D.D.C., filed December 20, 2024)

– Thomas L. Root

Thanksgiving Week: Stuffing Goes With Turkey – Update for November 26, 2024

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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.

STUFFING

Walter Pavlo reported in Forbes last weekend that the Bureau of Prison – despite being told by Congress in the First Step Act almost six years ago to expand halfway house capacity to accommodate prisoners using FSA credits, has increased contracted-for halfway house bed space by a paltry 1% in the last 6 years.

stuffedturkey241126The BOP Office of Public Affairs reported that as of January 1, 2019, the BOP was contracting for 10,408 halfway house beds. As of two months ago, the BOP contracted for 10,553 halfway house beds. Pavlo wrote that “the BOP is now telling some halfway house providers… that they are canceling some solicitations for additional capacity because of ‘budgetary and staffing considerations.’”

Pavlo reported, “Many prisoners and their families are telling me that case managers are telling them that there is no room at halfway houses, and the result is that many minimum security prisoners spend a greater portion of their sentence in prison rather than in the community… BOP notes that ‘many of the unfilled beds in a halfway house are at locations that are hard to fill or are outside of the release residence area of individuals requesting community confinement placement’.”

So the Bureau argues to prisoners that the halfway houses are stuffed without room for people, who therefore lose the benefit of their FSA credits. Pavlo says that’s a myth. He and former BOP Director Hugh Hurwitz surveyed halfway houses and BOP usage of them, finding that only 82% of the BOP’s contracted halfway house capacity is being used. What’s more, the halfway houses have even more space open than that, space the halfway houses would like to fill but is not under BOP contract.

halfwayhouse241126“BOP could look to modify those existing contracts to increase the number of beds available,” Pavlo wrote.

For now, it appears that the halfway house shortage has less to do with stuffed beds and more to do with BOP unwillingness to fill them.

Forbes, Bureau of Prisons Halfway Houses Must Change Due to First Step Act (November 23, 2024)

– Thomas L. Root

A Win for FSA Statutory Clarity – Update for November 21, 2024

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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.

COURT HANDS BOP LOSS ON FSA CREDIT COMMENCEMENT

In a detailed and lengthy decision, a Middle District of Alabama district court ruled on November 4th that otherwise eligible prisoners must start earning First Step Act time credits from the moment they are sentenced rather than when the BOP says they can.

prisoners221021As first blush, the issue seems pretty clear. Section 3632(d)(4)(A) of Title 18 says that a “prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits…” Section 3635(4) defines a “prisoner” as “a person who has been sentenced to a term of imprisonment pursuant to a conviction for a Federal criminal offense, or a person in the custody of the Bureau of Prisons.”

You don’t have to be a lawyer to figure out that an eligible prisoner, therefore, is anyone who has been sentenced to prison for a federal crime (we’ll leave the other category, “a person in the custody of the Bureau of Prisons,” for another day), provided he or she has not been convicted for one of the 63 exempt crime categories — such as sex offense or using a gun in a crime in violation of 18 USC § 924(c), to name only two of the myriad of exclusions — and is not an alien with a final order of deportation. The exclusions leave about half of the people in BOP facilities eligible for FSA credits.

The BOP denied Sohrab Sharma 122 days of FSA credit, finding that he was not an “eligible prisoner” from the commencement of his sentence until he was finally delivered to FPC Montgomery and again when he was locked up and transferred for an unspecified violation of prison rules. Under 28 CFR § 523.42(a), a BOP-adopted rule, “[a]n eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences (the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will be served).”

ambiguity221128The Court held that “the statute unambiguously addresses the question of when an inmate is eligible for FSA credits,” to which 28 CFR § 523.42 “adds a layer of eligibility not found in the statute [that] conflicts with its express language.”

The District Court ruled that an eligible inmate is entitled to FSA credits from the date the sentence commences under 18 USC § 3585(a) which “specifies ‘the date the defendant is received in custody awaiting transport to’ his initial BOP-designated facility as the date his or her ‘sentence to a term of imprisonment commences’ for purposes of determining whether he can begin to earn FSA time credits.”

The Court said, “The BOP must apply time credits to eligible prisoners who have earned them and cannot categorically make prisoners ineligible for such credits in a manner that contravenes the statutory scheme set forth in 18 USC § 3632.”

Sohrab’s case was sent back to the BOP to determine whether he was an “eligible prisoner” for the purpose of those 122 days, instead of being categorically excluded because he was riding a bus or sitting in segregation.

While the decision is welcome, it is a district court opinion that has no binding precedential value in its own circuit, let alone anywhere else. The government being the government, count on the opinion having utterly no impact on how the BOP applies 28 CFR § 523.42 in any case other than Sohrab’s.

Sharma v. Peters, Case No. 2:24-CV-158 (M.D. Ala., November 4, 2024), 2024 U.S.Dist. LEXIS 199823

– Thomas L. Root

Home Confinement Authority Gathers Dust – Update for November 8, 2024

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HOME CONFINEMENT AUTHORITY AS ‘SHELFWARE’

shelfware241108ABack in the days of the dinosaurs, when computer programs came on CD-ROMs or (even more antediluvian), on stacks of mini-floppies, many of us were familiar with the concept of “shelfware.”

Writing in Forbes last week, Walter Pavlo reminded us that the Federal Bureau of Prisons has its own version of “shelfware,” a provision in 18 USC § 3624(g)(3) that lets prisoners spend their First Step Act credits – days earned for successful completion of programming under 18 USC § 3632 – on sentence reduction, halfway house or home confinement.

When a prisoner has earned enough FSA credits to where his or her remaining sentence equals the number of FSA credits earned, § 3624(g) requires that the BOP use those credits for one or more of the three options provided. The BOP’s practice is to first apply credits to sentence reduction: up to 365 credits can be used to reduce a sentence by a like number of days. The BOP has been diligent about this, and prisoners have been able to watch their sentences shorten on a monthly basis as FSA credits are earned.

Once the sentence reduction has been maxed out at 365 days, the balance of the credits is to be applied to additional halfway house or home confinement. Pavlo points out that “[t]he First Step Act gives the BOP a lot of discretion to place prisoners in the least restrictive, and least costly, confinement.” While the BOP has sole discretion to decide what that confinement will be, but it must be one of the two.

nobrainer241108A BOP decision to use its home confinement authority should be a no-brainer: The halfway houses are filled, causing prisoners to be denied the use of their credits despite their absolute statutory right to them. Home confinement, however, lacks the space limitations (at least not to the same degree).

Unsurprisingly, the BOP has left it home confinement authority on the shelf. As Pavlo observes, the BOP’s “interpretation of the First Step Act at every turn has been to minimize the use of the law to return prisoners to society sooner. The BOP has the law behind it to move thousands more prisoners into the community and to home confinement, if it only had the will to do so.”

Trust the BOP to mismanage things. Pavlo notes that

[p]risoners with 18 months of First Step Act toward prerelease custody should be sent directly to home confinement but they are languishing in halfway houses using resources they do not need. Other prisoners who are not First Step Act eligible and who have longer prison terms, are being passed over for placement in halfway houses in favor of those on First Step Act. The costs are now higher because a prisoner is staying in a higher security prison because there is no halfway house and a minimum security prisoner is stuck in a halfway house when they could be at home.

What he does not mention is that other prisoners entitled by law to the benefit of FSA credits they have earned are being denied halfway house placement because the places are full, in part with prisoners the BOP could move to home confinement.

The BOP could save money, too. When halfway houses monitor people on home confinement, it charges the BOP about half the cost of keeping them in halfway houses. According to the BOP, an inmate in home confinement cost an average of $55.26 per day as of 2020 —less than half the cost of an inmate in secure custody.

Moneyburn170208President-elect Donald Trump, as one of his plethora of promises made during the campaign, said he would slash federal spending. His disdain for anything related to the DOJ is well known. In a November 7 Forbes article, Pavlo said, “[L]ook for an unhappy Trump look for more ways to cut costs at the BOP. In 2018 when Trump made the cuts the BOP’s budget was $7.1 billion. The BOP has asked for $8.6 billion in FY2025 and another $3 billion to bring its facilities up to date. Spending at these levels is simply not going to happen.”

The BOP is required to let prisoners spend their FSA credits. It may be compelled by circumstances and budget to push FSA credit users, especially those who are minimum security and recidivism risk, to home confinement. Even now, doing so would make good sense, which leads commentators like Pavlo to wonder why the agency hasn’t done so.

Forbes, Bureau of Prisons Could Do More To Send People Home, Why Aren’t They? (October 30, 2024)

Dept of Justice, Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 88 FR 19830 (April 4, 2023)

Forbes, The Bureau Of Prisons Under A Trump Administration (November 7, 2024)

– Thomas L. Root

Former BOP Official Says “Wait Until The Halfway House Has Space” Is A Fable – Update for October 21, 2024

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THE ANT AND THE GRASSHOPPER

antgrasshopper241021Most kids recall Aesop’s fable about the grasshopper who played away the summer while his neighbor, the industrious ant, worked dawn to dusk storing food for the winter. You can imagine the ending: the grasshopper. When the cold winds blow, the hungry grasshopper begs for food from the ant but is refused.

The situation sums up the virtues of hard work and planning for the future, a lesson lost on the Federal Bureau of Prisons when it came to wisely using the years following the First Step Act’s passage to expand access to halfway house space.

Admittedly, 18 USC § 3624(g) is a long, convoluted subsection. But that’s no excuse for the BOP skipping the very last paragraph, which says “[t]he Director of the Bureau of Prisons shall ensure there is sufficient prerelease custody capacity to accommodate all eligible prisoners.” After all, “shall” means “shall” and “all” means “all.”

The grasshopper was reduced to begging. The BOP, on the other hand, has addressed its lack of preparation by vigorously arguing that nothing was its fault and that inmates with FSA credits earned by successfully completing programming that reduces recidivism can use them for halfway house or home confinement only at the whim of the halfway houses. The BOP has told courts that a prisoner has no constitutional right to be placed in a particular facility and that the BOP has exclusive authority and discretion to designate the place of confinement.

The shortage of halfway house or home confinement capacity for all of the FTCs people have to redeem is no secret. BOP Director Collette Peters testified about it before Congress last summer. Her lament that the BOP has a “capacity” problem – like the government’s use of the shortage as a reason FTCs cannot be redeemed – has a flavor of John Belushi as Jake Blue, kneeling in the muck in front of Carrie Fisher, blubbering that his tux had been at the cleaners and that “it’s not my fault.”

fault200814What has been a secret, however, is that the BOP apparently has been fully aware that “shall” means “shall,” and that it is obligated to place prisoners in halfway house or home confinement when their FTCs dictate, not when the halfway house says so. In a remarkable article published this week in ExpertClick, former BOP official and consultant Bruce Cameron and recently retired BOP Unit Management Section Chief Susan M. Giddings – candidly acknowledge that “[t]he BOP has no discretion to deny or delay transfer to prerelease custody for any reason, including the lack of physical space.”

It is not surprising that Bruce would state this obvious fact. He retired from the BOP 11 years ago and has run Federal Prison Authority, a consultancy that (among other things) assists people with RDAP and placement in community programs ever since. But Dr. Giddings – whose declarations have supported any number of government oppositions to prisoner habeas petitions since First Step – only retired from the BOP five months ago. As the “go-to” BOP official on all matters related to FTCs, she would have been privy to the BOP’s thinking when she retired in the same month as the remarkable Woodley v. Warden decision was handed down by a district court in Kansas.

In the ExpertClick article, Susan and Bruce argue that the Woodley decision has limits that are easily overlooked. The Woodley court ruled that while the BOP must place an inmate so that she may use all of her FTCs, the agency “retains its discretion regarding the type and location of placement.” They focus on the Woodley court’s caveat that “the BOP retains the discretion to decide whether to transfer the petitioner to a [halfway house] or home confinement, or even whether to transfer to petitioner to early supervised release[…] Nor does the Court require that petitioner be placed in any particular [halfway house]; thus, the BOP retains the discretion to choose the particular prerelease facility.”

Petitioner Woodley could not be placed in a Tampa halfway house in time to use his FTCs, so pursuant to the court’s order that it do something to place him, the BOP sent him to one in Orlando, 70 miles away. Susan and Bruce complain that by requiring placement so as to use all of a prisoner’s FTCs,

Congress gutted the real and vital purpose of reentry services. Yet, that is the real issue and impact of Woodley. For all their talk, Congress failed to include participation in a meaningful prerelease community program as a part of the FSA, literally contradicting the purpose of the Second Chance Act. So, whether an incarcerated person is placed 5, 50, or 500 miles from their home and community, all that matters is that they were transferred.

outtahere230914It is unlikely that an inmate seeking to cash in his FTCs cares much about the meaningfulness of the “prerelease community program” to which he is sent. What is noteworthy to prisoners is that experts – especially Dr. Giddings, only months from having been at the center of BOP decision-making on all matters related to FTCs – accept as a given Woodley’s holding that “[t]he BOP has no discretion to deny or delay transfer to prerelease custody for any reason, including the lack of physical space.”

Woodley v. Warden, Case No. 24-3053, 2024 USDist LEXIS 87521 (D.Kan. May 15, 2024)

ExpertClick, Woodley v. Warden Revisited: Time Credits, Prerelease Placement, and Agency Discretion (October 17, 2024)

House Subcommittee on Crime And Government Surveillance, Testimony of Colette Peters (July 23, 2024)

– Thomas L. Root

You Can Slice a Cucumber, But Not a Federal Sentence – Update for October 16, 2024

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2ND CIRCUIT DASHES § 924(c) HOPES FOR FTC CREDITS

Everyone knows that the First Step Act excluded people with 18 USC § 924(c) convictions (using, carrying or possessing a gun during and in relation to a drug offense or crime of violence) from getting FTCs (also called FSA credits). And, no, there is no move afoot in Congress to change as much as a jot or a tittle of First Step, especially § 924(c) eligibility.

slicing241016But § 924(c) sentences have to be served consecutively, leading a number of inmates to make the reasonable argument that they should be denied FTCs only during the part of their sentence that represents the § 924(c) sentence. So if you got 84 months for selling marijuana and a consecutive 60 months for carrying a gun while you did it, the argument is that you should be allowed to earn FTCs for 84 months, the non-924(c) part of the sentence.

That’s what Charles Giovinco argued in a district court. He got shot down, and last week, the 2nd Circuit agreed. The 2nd ruled that under 18 USC § 3584(c), “multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment. Pursuant to this aggregation provision, a prisoner is serving a sentence for any offense that is part of his aggregated term of imprisonment. Accordingly, the Bureau of Prisons must aggregate a prisoner’s sentence pursuant to § 3584(c) for the administrative purpose of determining his eligibility for FSA time credits under § 3632(d)(4).

Giovinco v. Pullen, Case No. 23-251, 2024 U.S.App. LEXIS 25348 (2d Cir. Oct 8, 2024)

– Thomas L. Root

Better Late Than Never, BOP Comes To The FTC Party – Update for October 7, 2024

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IT’S ALL CONDITIONAL: BOP ANNOUNCES CHANGES IN FSA CREDIT DATES

One of the recurring problems with the Federal Bureau of Prisons’ reluctant implementation of the First Step Act’s system for granting inmates credit for completion of programs designed to reduce recidivism is this: Prisoners are to earn credits as long as they are in BOP custody – including while in halfway house or home confinement – much like good conduct time credit under 18 USC § 3624(b) – but the agency has up to now adopted no system that would capture those latter FSA time credits (FTCs) and apply them to the benefits to which 18 USC § 3624(g) entitles inmates.

bureaucracy241007Instead, the BOP has been refusing to grant FTCs to people within 18 months of their release. It has been as though your employer decided not to pay you for your last month working for him because figuring out your final checks is just too much effort.  Your bureaucracy in action.

Two months ago, however, prisoners’ Sentence Computation forms suddenly included a line for “Conditional Placement Date.”  But nearly as soon as the forms were available, the BOP withdrew the date, claiming an error in calculation. For the last two months, prisoners were denied any documentation of their FSA credit calculations pending further work by the BOP on the subject.

Last Friday, the BOP announced that it will now start calculating three “conditional” dates for inmates. When a prisoner first enters the system, the BOP calculates a release date premised on the inmate earning all of the good conduct time under 18 USC § 3624(b) that he or she could possibly get. Now, the same will be done for FTCs.

The BOP will calculate three dates on a prisoner’s sentence comp sheets:

• FTC Conditional Placement Date: The date when an inmate may be eligible for halfway house or home confinement based on the application of his or her maximum potential FTCs.

• Second Chance Act (SCA) Conditional Placement Date: The date when an inmate may be eligible for release under the SCA, which allows for up to 12 months halfway house placement. SCA eligibility is based on an individualized assessment by BOP staff. Nothing is promised, with SCA placement being anywhere from zero months to a full year.

• Conditional Transition to Community Date: This date is the earliest possible date for transfer from prison to halfway house or home confinement, based on a combination of FTCs and SCA eligibility.

The BOP promises that staff will use these new conditional dates to make release decisions starting 17-19 months before the Conditional Transition to Community Date. The BOP said that “[f]or eligible individuals, this could include recommendations for direct home confinement, bypassing [halfway house] placement where appropriate.”

funwithnumbers170511The BOP warns that “FSA Conditional Release Date is a projected date based on various factors, including continued eligibility for FTCs, participation in programs, and eligibility and appropriateness under SCA.”

Writing in Forbes this past weekend, Walter Pavlo recounted the BOP’s sorry record on FTC implementation, having “been plagued with computer problems to calculate the credits, inconsistent interpretation of the First Step Act and poor communication to the line staff at prisons who are tasked with implementing the programs. The result is that the BOP has held prisoners in institutions longer than necessary and in some cases held them beyond their release date.”

So, hypothetically, someone beginning a 120-month sentence on Jan 1, 2024, would have a good time release date of about July 1, 2032. The first 365 days of FTCs she earned would move that date to July 1, 2031. Between the start of her sentence and July 1, 2031, she would earn 1305 FTCs. After using 365 of those FTCs to reduce her time by a year (under 18 USC § 3624(g)(3)), she would have 940 days left. Those 940 days would let her transition to halfway house or home confinement on about Nov 3, 2028. That date should be her FTC Conditional Placement Date.

Under the Second Chance Act, she could get an additional year in halfway house. That would make her Conditional Transition to Community Date about Nov 3, 2027.

It is close to misfeasance that it has taken the BOP nearly six years from the passage of the First Step Act to finally figure out a system that a kid with an Excel spreadsheet could have accomplished in under an hour. What’s worse is that so many prisoners have been denied their full FTC benefit by an agency hidebound by stasis and contempt for the people entrusted to its custody

beating241007Note that while BOP Director Peters’ kinder, gentler BOP calls inmates “adults in custody,” I do not. When the people locked up in BOP institutions are treated like persons in custody instead of inmates, prisoners, or numbers, I will call them AICs.  For now, the BOP treats them with contempt. Calling them AICs doesn’t change that.

BOP, FBOP Updates to Phone Call Policies and Time Credit System (October 4, 2024)

Forbes, Bureau of Prisons Announces Updates To First Step Act Calculations (October 5, 2024)

– Thomas L. Root

Food Fight – Update for September 19, 2024

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INMATES RESTIVE OVER FSA CREDIT MISFEASANCE

numbers180327Walter Pavlo reported in Forbes last Friday that despite BOP Director Colette Peters’ statement to a House Judiciary Subcommittee two months ago that the agency is now using a forward-looking calculator for First Step Act credits – credits earned for successful participation in programs intended to reduce recidivism – the calculator remains only partly implemented, leaving federal inmates confused and frustrated.

The BOP is now calculating both a Projected Release Date – which shows a release date calculated only on how many credits have been awarded to date – and a Conditional Release Date that predicts how many credits the prisoner is likely to earn over his or her remaining sentence. Pavlo wrote that “case managers are confused over which one should be used for planning purposes. It may seem obvious that the Conditional Release Date would make more sense, but that is not how it is working.”

Pavlo reported that at the Federal Prison Camp at Maxwell Air Force Base in Montgomery, Alabama, prisoners engaged in a food strike last week, planning to continue until staff ensures that “their concerns are addressed.”

In keeping with its policy of maximum opacity, the BOP issued a public statement saying only that “numerous inmates” skipped lunch and that BOP employees “are looking into why.”

hungerstrike240918

Pavlo knows why, as does anyone who has followed the BOP’s messy and incompetent implementation of the First Step Act. He explained:

Many prisoners there are eligible for FSA credits and they lined up outside of case managers’ offices last week to get answers to a simple question, “When am I leaving?” Tensions rose as prisoners were told to leave their units from 7:00am until 3:30pm as those meeting with case managers were not getting straight answers. According to prisoners I spoke with on condition of anonymity, tensions are high as case managers could not provide answers as to what the BOP’s position was on the new calculations.

While local news in Montgomery provided some information about the unrest at the federal prison, personal accounts from family members poured in telling of concern of escalation from staff who are taking away television time, visitation, computers and microwaves. “This is all about the BOP not giving us answers to things we know about from reading the First Step Act law,” said Donavan Davis a prisoner at FPC Montgomery, “I should be home now and nobody is listening.”

Pavlo reported that “[p]risoners told me that the BOP is not being clear about its position on First Step Act credits being awarded and many believe they are now being held against the law. Some provided information that confirms they could have been placed on home confinement months ago…”

I have heard from a number of inmates whose Conditional Release Dates have already passed without any indication from BOP officials that they are being placed in halfway house or home confinement as required by law. BOP Director Peters told the House Subcommittee on Crime and Federal Government Surveillance in July that “the shortage of halfway house space, the primary means of monitoring those on home confinement, is at a crisis level.”

We already knew that, but Pavlo underscored the BOP failure: The “limitation of halfway house space is keeping people in prison longer, and apparently, many have had enough.”

Diverse reports from prisoners in facilities across the BOP suggest that institutions are responding to prisoner demands for release on their Conditional Release Dates by refusing to provide inmates with copies of their FSA credit sheets. The theory apparently is if ignorance is not bliss, at least it deprives the “adults in custody” of proof that they’re being denied their rights and thus grounds for complaint.

foodstrike240918Food strikes aren’t going to make the BOP honor FSA credits. The BOP takes any organized protest by inmates as a serious matter, akin to a riot. The outcome is never good for the prisoners. The matter has to be solved in court, and the sooner the better.

Forbes, Bureau Of Prisons’ Issues With First Step Act Leads to Food Strike… (September 14, 2024)

House Subcommittee on Crime and Federal Government Surveillance, Oversight Hearing on Federal Bureau of Prisons Oversight (July 23, 2024)

– Thomas L. Root

Bad Cases Make Hard Law – LISA Newsletter for September 12, 2024

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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.

WHEN ‘SHALL’ CAN MEAN ‘MAY’

Last week, I referenced Booker v. Bayless, a strange case from the Northern District of West Virginia that found the Federal Bureau of Prison’s duty to place people with sufficient First Step Act credits in halfway house or home confinement was not subject to judicial review.

holmes240912Civil War combat vet and Supreme Court Justice Oliver Wendell Holmes, Jr., once wrote that “hard cases make bad law.” A fair obverse of that aphorism applies to Bayless: Bad cases make hard law.

In Bayless, the prisoner filed a messy habeas petition arguing that the BOP should be ordered to give him the 12 months halfway house he was entitled to under the Second Chance Act. As I noted last week, prisoners are not ‘entitled’ to even one day of halfway house under the SCA. The Magistrate Judge said as much in his Report and Recommendation.

The petitioner filed objections to the Report and Recommendation with the District Court, asking the Judge (as the Court described it) “to take ‘judicial notice’ of… Woodley v. Warden… [P]etitioner cites [18 USC] §§ 3624(g) and 3632(d)(4)… [and] goes on to quote directly from Woodley.” Rather than declining to consider arguments on those sections that hadn’t been raised in front of the Magistrate Judge, the District Court addressed them, relying on Murray Energy Corp v. Environmental Protection Agency, a 4th Circuit decision that ruled an EPA decision was not subject to court review because the statute in question did not impose on the EPA a duty “amenable” to 42 USC § 7604(a)(2) review.

The District Court ruled,

Section 3632 — when read as a whole — imposes on the BOP a broad, open-ended statutory mandate to do many things for inmates. The BOP is thus left with considerable discretion in managing its § 3632 duty. The BOP gets to, among other items, assess an inmate’s risk of recidivism and needs, develop individualized reentry plans for inmates, determine the appropriate classification and placement of inmates within the prison system, manage and facilitate inmates’ participation in programs designed to address their specific needs, provide incentives for inmates who engage in positive behavior or successfully complete programs, [and] make recommendations regarding sentence adjustments based on inmates’ participation in programs and overall conduct… By statute, it has already been found that “a designation of a place of imprisonment under this subsection is not reviewable by any court”… Thus, this Court finds that § 3632 does not impose on the BOP a specific and discrete duty amenable to review by this Court. By rejecting the analysis in Woodley, this Court is keeping in line with what other courts have been doing regarding placement.

The other cases cited by the Court as supporting its holding all predate the application of FSA credits and provide dubious support.

wrong160620The Bayless decision is patently wrong. First, the issue is much narrower than reading § 3632 “as a whole.” Rather, it is whether – once an inmate meets all of the eligibility requirements – the BOP has a mandatory duty to place the prisoner in halfway house or home confinement. That does not ask the Court to review any discretionary eligibility requirement listed in § 3632, but rather only asks whether – once a prisoner is found to be eligible – what a single sentence in § 3632(d)(4)(C) means.  That sentence is “[t]he Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under § 3624(g), into prerelease custody or supervised release.” (Emphasis mine).

Pretty simple question… Does “shall” mean “shall” or does it just mean “may?” But the Bayless court says the answer is not for the courts to say.

Second, the EPA decision interprets a statute – 42 USC § 7604(a)(2) – that is particular only to the EPA. That statute authorizes a private citizen to sue the EPA “where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator…”  There is no adjunct to this in the First Step Act.  Instead, the operative statute for a prisoner would be 28 USC § 2241, the writ of habeas corpus, a very different animal indeed.

Under the Bayless reasoning, the FSA credit statute becomes toothless, leaving the BOP free to do anything it wants to do with the credits a prisoner has earned.

incompetent220215The Bayless decision is error-ridden, but it is largely the result of a petitioner who didn’t know what he was doing and made a mess of his ill-advised 28 USC § 2241 petition. Unfortunately, he has now appealed the denial to the 4th Circuit. Unless he gets competent legal help pretty fast, he is likely to turn a bad district court decision into a disastrous Circuit precedent.

Bad case. Hard law.

Booker v. Bayless, Case No. 5:24-CV-43, 2024 U.S. Dist. LEXIS 149061 (N.D. W.Va., August 20, 2024)

Booker v. Bayless, Case No. 24-6844 (4th Cir, docketed August 28, 2024)

Northern Securities Co. v. United States, 193 U.S. 197 (1904) (Holmes, Jr, J., dissenting)

Murray Energy Corp v. Environmental Protection Agency, 861 F3d 529 (4th Cir. 2017)

– Thomas L. Root