Tag Archives: good time

No One Much Cares About the ‘Seven Days’ Debacle – Update for February 25, 2019

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

BAD NEWS, GOOD NEWS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

News of the (Good) Weird – Update for February 11, 2019

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

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

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

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

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

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

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

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

It happened.

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

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

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

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

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

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

– Thomas L. Root

Err in Haste… Congress Screws Up First Step Implementation – Update for January 29, 2019

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

TRYING TO FIX FIRST STEP’S 54-DAY FIASCO

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Err in Haste… Congress Goofs, Inmates Keep Doing Time – Update for January 16, 2019

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

54 DAYS GOOD TIME DELAY IS A “MISTAKE”

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

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

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

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

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

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

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

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

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

– Thomas L. Root