Tag Archives: government shutdown

First Step Rollout Already Behind Schedule? – Update for January 21, 2019

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

COULD SHUTDOWN MESS WITH FIRST STEP ACT IMPLEMENTATION?

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

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

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

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

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

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

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

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

Criminal cases are expected to proceed uninterrupted.

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

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

– Thomas L. Root

Shutdown Grinds on Federal Prisons – Update for January 18, 2019

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

FEDERAL PRISON CONDITIONS NOT GOOD FOR STAFF OR INMATES AS SHUTDOWN CONTINUES

shutdown190118The partial government shutdown, about to enter its fifth week, has led to the furloughing of up to half of the BOP’s 36,000-person staff, including many who provide therapeutic programs and other services considered not to be “essential.” The agency is asking its remaining employees to keep working unpaid, focusing on maintaining security even if that’s not usually their primary job.

“It’s an absolute disaster,” said the president of the union chapter in Victorville, California, home to one of the nation’s largest concentrations of federal prison guards. “I have staff that are resorting to getting second employment – like Uber driving.”

Union officials reached by The Washington Post reported last week that the number of employees who are not showing up for work has at least doubled since the shutdown began. As a result, those showing up are routinely working double shifts, correctional officers and other prison staff members say. “There has been a rise in people calling in sick and taking leave during the shutdown,” said Richard Heldreth, president of the corrections officer union at Hazelton prison in West Virginia. “The staff who are showing up are dealing with this violence, long hours and extra overtime with the uncertainly of when we will be compensated.”

The BOP said only that the lack of funds from Congress means that only those employees whose duties involve “the safety of human life or the protection of property” are permitted to work.

The shutdown is having other consequences as well, including canceled visiting hours and empty commissary shelves. Also, applications of terminally-ill inmates awaiting “compassionate release” are going unread.

A more urgent problem, said Robert Hood, former warden of the ADMAX Florence, is the possibility of mental-health staff being furloughed. “Most BOP facilities will run without the myriad of programs normally offered” to address the needs of dangerous or mentally ill prisoners, Hood said.

emptyprison190118The U.S. courts are equally affected. Federal courts are funded only through next week. Beyond that, there is a likelihood of serious delays for many cases, but even experts and government officials are uncertain exactly how a prolonged shutdown might play out. The Administrative Office of the U.S. Courts (AOUSC) now says that federal courts can continue paid operations using “court fee balances and other ‘no-year’ funds” until Jan. 25.

If the court system runs out of reserves, according to AOUSC, the Anti-Deficiency Act kicks in. Involved parties can expect delays in discovery, briefing and other communications from the DOJ and other federal agencies.

Civil litigation, generally, will be the first casualty of the shutdown. Criminal cases will be prioritized, as they are matters of public safety, according to the Administrative Office. Every court will be affected, though it remains uncertain to what extent. Judges remain responsible for managing their cases, even during the shutdown, and will generally address stays, delays and important date changes on a case-by-case or district-by-district basis.

The Marshall Project, What the Government Shutdown Looks Like Inside Federal Prisons (Jan. 7)

Washington Post, Tensions rise in federal prisons during shutdown as weary guards go without pay and work double shifts (Jan. 10)

Law360, What Attorneys Need to Know About the Shutdown (Jan. 10)

Administrative Office of U.S. Courts, Judiciary to continue funded operations until Jan. 25 (Jan. 16)

– Thomas L. Root

Court’s Still In During Shutdown – Update for January 4, 2019

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

FEDERAL COURTS: BUSINESS AS USUAL (FOR NOW)

Despite President Trump’s partial government shutdown that began almost two weeks ago, the federal courts remain open and will continue operations for about three weeks, at least through January 11, by using court fee balances and other funds on hand.

38700Most proceedings and deadlines will occur as scheduled. In cases where an attorney from an Executive Branch agency is not working because of the shutdown, hearing and filing dates may be rescheduled. As of late last week, federal courts across the country started hitting pause on many cases at the request of the Dept. of Justice, which was arguing in cut-and-paste pleadings that the shutdown restricts government lawyers from performing their usual duties.

If the federal courts burn through their resources, they would then operate under the terms of the Anti-Deficiency Act, which allows work to continue during a lapse in appropriations if it is necessary to support the exercise of Article III judicial powers. Each court and federal defender’s office would determine the staffing resources necessary to support such work.

Meanwhile, the DOJ has cited its own 13-page contingency plan for continuation during the shutdown. The agency says that “criminal litigation will continue without interruption as an activity essential to the safety of human life and the protection of property,” but “civil litigation will be curtailed or postponed to the extent that this can be done without compromising to a significant degree the safety of human life or the protection of property… The Department will limit its civil litigation staffing to the minimum level needed to comply with the court’s order and to protect life and property. Receipt of summonses, pleadings and motions by mail may be delayed.”

Not all is bliss, however. Several Bureau of Prisons employees (who are considered essential) have sued the government for requiring them to show up for work without being paid at the appointed time. Apparently, the notion that when your employer stops paying you, you find another job – an idea well known in the private sector, where performance, merit, advancement and compensation are generally tightly-connected concepts –  has not occurred to these government employees. 

Administrative Office of US Courts, Judiciary Operating During Shutdown (Dec. 22, 2018)

DOJ, FY 2019 Contingency Plan (Sept. 11, 2018)

The Washington Post, ‘Nothing short of inhumane’: Union sues Trump administration over shutdown (Jan. 2, 2019)

– Thomas L. Root