Tag Archives: HEROES Act

$timulus Bill Is Cash-Rich But Justice-Poor – Update for February 22, 2021

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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.

IT’S ALL ABOUT THE BENJAMINS

benjamins210222The House of Representatives finally released the text of the new stimulus package last Thursday, the 591-page American Rescue Plan, which includes billions of dollars for vaccine, unemployment benefits, state coffers, small businesses and stimulus checks, not to mention a grab-bag of special interest goodies like $15.00 an hour for the kid assembling sandwiches at the neighborhood McDonalds.

The American Rescue Plan contains something for almost everyone. Almost. For federal prisoners, the bad news is this: unlike the CARES Act (adopted 11 months ago) and the HEROES Act (a House measure last May that never passed the Senate), the American Rescue Plan contains nothing easing compassionate release, fixing the elderly offender home detention plan, or addressing any other criminal justice program.

The good news: inmates will be eligible for the $1,400 stimulus payment, just as they were eligible for the prior $1,200 and $600 payments.

[How to get stimulus payments, old and new]

The reasons that the ARP left out in a criminal justice measures are complex. Primarily, it is because Congress wanted to move rapidly, and the Democrats are pushing hard for Republican support in the evenly divided Senate. The New York Times reports that the House may pass the ARP this week, and the goal is to have President Biden sign the bill by March 14 (when existing federal unemployment money runs out). ARP is all about money, and sponsors want to keep it that way, because as a money bill, ARP has broad public support.

The Biden administration clearly plans some sort of comprehensive criminal justice reform this year. At a townhall meeting in Milwaukee last week, Biden said, “No one should go to jail for the use of a drug. They should go to drug rehabilitation.” The sentencing system should be changed to one that focuses on making sure that there are rehabilitation plans for inmates more generally, Biden said, adding that prison systems should have access to vocational programs that help those behind bars learn the career skills they need to succeed outside of prison.”

booker210222Meanwhile, Sen. Cory Booker (D-New Jersey) has been picked to chair the Senate Judiciary Committee’s Subcommittee on Criminal Justice and Counterterrorism. The subcommittee’s jurisdiction includes the Dept of Justice Criminal Division; the Drug Enforcement Administration, Bureau of Prisons, Sentencing Commission, and other law enforcement agencies.

This is significant, because a subcommittee chairman controls the subcommittee’s agenda, and can bring substantial pressure – even without writing legislation – on the agencies it oversees. “Our nation’s broken criminal justice system is a stain on the soul of our country, the result of decades of failed policies that have broken apart families and communities and have not made us safer,” Booker said. “I look forward to continuing and strengthening my partnership with Chairman Durbin [Sen Richard Durbin (D-Illinois), chair of the Senate Judiciary Committee] to further advance reforms to our policing and criminal justice system.”

letter161227Finally, interest groups finally have sympathetic ears in Congress and at DOJ. In an open letter to the not-yet-confirmed Attorney General, Merrick Garland, the ACLU urged him “to make clear, on-the-record commitments on five critical issues: mass incarceration; policing; COVID-19 in federal detention; the death penalty; and solitary confinement.” The ACLU asked that the “Trump DOJ’s efforts to thwart Congressional intent behind the FIRST STEP Act of 2018 should also be reversed: DOJ should support application of the Act’s reduced penalties at all sentencings, including resentencings in cases where an illegal sentence was vacated.”

HR -____, American Rescue Plan (reported to the House), Feb 18, 2021

New York Times, Republicans Struggle to Derail Increasingly Popular Stimulus Package (February 19, 2021)

Washington Examiner, Biden: ‘No one should go to jail for the use of a drug’ (February 16, 2021)

NJInsider, Booker to Chair Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism (February 14, 2021)

ACLU, Open Letter to Merrick Garland (February 18, 2021)

– Thomas L. Root

Reading the Tea Leaves on Biden’s Criminal Justice Reform – Update for February 1, 2021

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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.

CHANGE IS GONNA COME… SLOWLY BUT SURELY

bidensuperman210201Biden ain’t Superman. For that reason, people who have been lighting up my inbox with emails asking whether Biden has done away with mandatory minimums should take a deep breath. A President cannot abolish mandatory minimums. Only Congress can do that.

But there’s a lot of early indication that Biden is going to be active in criminal justice reform. Last week, the acting attorney general pulled the Trump administration’s May 10, 2017, charging and sentencing memo, which required US Attorneys to pursue the harshest charges and stiffest penalties. The new policy, a rollback to the Obama era, “ensures that decisions about charging, plea agreements, and advocacy at sentencing are based on the merits of each case and reflect an individualized assessment of relevant facts.”

Last week, I reported that Trump’s DOJ issued a legal opinion that CARES Act inmates on home confinement would have to return to prison after the pandemic ends. Writing in USA Today, three criminal justice advocates argued that Biden “should immediately rescind the Trump administration’s legal opinion, and should identify more people who could be safely released early back to society, with priority “ given to those who are most vulnerable to COVID-19.

The ACLU announced the launching of an ad campaign calling on Biden to carry out his campaign promise to cut the number of incarcerated persons in the country. The campaign calls for clemency using set criteria, such as focusing on people who, if they were sentenced today, would not receive the same sentence, and releasing the elderly, the medically vulnerable and people locked up for technical probation or supervised release violations.

crackpowder191216

Not to be outdone, FAMM and the Prison Fellowship last week announced the “End the Disparity” campaign, to urge Congress to eliminate the 18:1 ratio between crack and powder cocaine-related offenses, making them one-to-one. Senators Cory Booker (D-New Jersey) and Richard Durbin (D-Illinois), both members of the Senate Judiciary Committee, announced legislation that will do so, eliminating the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced.

Before the 2010 Fair Sentencing Act, the penalties for one gram of crack was the same as for 100 grams of powder cocaine, resulting in horrific sentences for people with small quantities of crack.  Those people were mostly black, crack being a drug of choice for poorer urban communities (which also were mostly black). In 2010, the Fair Sentencing Act introduced a bit of sanity, but the ratio didn’t drop to 1:1 (a concession to some Jefferson Beauregard Sessions III-type senators to get them to vote for the measure).

So, now, a gram of crack is equal to 18 grams of powder, fairer than before but still a differentiation that is untethered to common sense. The Booker-Durbin bill would drop the ratio to 1:1, if it passes. The fact that both sponsors are on the Judiciary Committee (and Durbin will probably be running the Committee) greatly increases those odds.

HEROES210201Two questions loom large for federal inmates. First, will Biden’s proposed stimulus bill, many elements of which are expected to be drawn from House Democrats’ $3.4 trillion HEROES Act (passed in May but blocked by the GOP-controlled Senate), include breaks for compassionate release, CARES Act releases and elderly offenders? Second, when will Congress see a sweeping criminal justice reform bill?

The details of the stimulus bill have not yet been released. Just like with the HEROES Act, which we didn’t get to read until almost the day it was passed, we will have to wait. As for criminal justice reform, no one knows when legislation will be filed or how long it will take to past.

HuffPost, DOJ Pulls Trump Administration’s Harsh Charging And Sentencing Policy (January 29, 2021)

Courthouse News Service, Biden Moves to End Federal Private Prisons as Part of Racial Equity Plan (January 26, 2021)

Bloomberg, Biden’s Go-Big Stimulus Plans Set Up Fresh Fight in Senate (January 11, 2021)

USA Today, Biden’s executive orders on criminal justice should extend to inmates sent home by COVID (January 28, 2021)

The Hill, ACLU pressing Biden to stick to promise of decarceration with new ad buy (January 28, 2021)

EIN Presswire, FAMM and Prison Fellowship Launch #EndTheDisparity Campaign (January 28, 2021)

Office of Sen. Cory Booker, Booker and Durbin Announce Legislation To Eliminate Federal Crack and Powder Cocaine Sentencing Disparity (January 28, 2021)

Bloomberg Law, Criminal Justice Changes Need Harris to Lead, Advocates Say (January 26, 2021)

– Thomas L. Root

CARES Act Home Confinees Must Return to Prison, Trump’s DOJ Says in Parting Shot – Update for January 22, 2021

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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 FINAL STEAMING PILE OF LEGAL EXCREMENT AS THE TRUMP ADMINISTRATION LEAVES THE BUILDING

DOJOLC210122Under the March 2020 CARES Act, Congress gave the Director of the Federal Bureau of Prisons the authority to send inmates to home confinement at any time, despite the 6-month/10% limitation on home confinement set by 18 USC § 3624(c). The conditions set by the legislation were only two: (1) the national emergency declared because of COVID-19 had to be in effect, and (2) the Attorney General had to determine that COVID-19 was materially affecting BOP operations.

Attorney General William Barr concluded in short order that BOP operations were being affected, and that nonviolent inmates with good prison records (and US citizenship and a few other requirements) should be sent to home confinement. The BOP added its own gloss, that the inmate must have completed 50% of his or her sentence (or, for short-timers, 25% of the sentence with 18 months or less to go). By mid-April 2020, the prison-to-parlor pipeline was flowing.

snakeoil170911Since then, the BOP has trumpeted that it has sent over 18,000 inmates to home confinement. It turns out, however, that – like most BOP claims – this one is misleading, if not downright dishonest. The BOP has sent 18,112 people to home confinement in the last 10 months, but 60% of those were eligible for home confinement under 18 U.S.C. § 3624(c)(2) anyway, because they were within their last six months of their sentences (or 10%, if they were sentenced to under five years).

But this leaves about 7,245 people who were sent home who could not have been sent if not for the CARES Act. I know at least two sent home with more than 10 years of sentence left to serve. While that’s a long time to spend in a Barcalounger, nevertheless, there is no doubt that an inmate’s worst day on home confinement is better that his or her best day in prison.

There was a kerfuffle last fall, when a DOJ Attorney said in open court, almost as an aside, that once the pandemic ended, all of the federal inmates sent to home confinement would have to come back to prison.

At the time, FAMM president Kevin Ring said that he had communicated his concern that CARES Act inmates might be recalled to the White House. He said the Trump Administration assured him it would never happen.

Back then I said

but White House assertions (remember President Trump’s promised 3,000 clemencies?) have a way of being wrong. The risk of reincarceration seemed real enough that the House of Representatives included a provision in last May’s HEROES Act that no one “granted placement in community supervision, termination of supervision, placement on administrative supervision, or pre-trial release shall be re-incarcerated, placed on supervision or active supervision, or ordered detained pre-trial only as a result of the expiration of the national emergency relating to a communicable disease.

I generally like being right, but not this time…

Although the end of the pandemic appears to be months away (former basketball point guard and rockstar doctor Anthony Fauci said yesterday that “if the country can get over the hurdle of vaccine hesitancy and reach a 70% to 85% uptake, Americans can expect normalcy in the fall”), the Trump Administration was seemingly unable to resist breaking one final promise.

Last week, the DOJ Office of Legal Counsel issued an opinion entitled “Home Confinement of Federal Prisoners After the COVID-19 Emergency,” concluding that

the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning. Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2). We also conclude that the general imprisonment authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES Act authority to authorize home confinement under the Act beyond the limits of section 3624(c)(2).

kick210122Ohio State University law professor Doug Berman said yesterday in his Sentencing Law and Policy blog that “this opinion is certain contestable, the new Biden Justice Department could reconsider it and a court might reject it, and we are surely a long ways from reaching a post-pandemic world.” Kevin Ring denounced the opinion as “one last kick in the groin from the Trump Justice Department,” calling it “is a poorly reasoned piece of cruelty that could make families worry unnecessarily.”

I consider it very unlikely that Biden’s new Attorney General, Merrick Garland, is going to rescind Barr’s finding “that the emergency conditions are materially affecting BOP’s functioning” any time soon. Although the pandemic emergency declaration expires in March, I suspect Joe is more likely to invite Donald Trump over to the White House for a drink than he is to end the emergency. There’s plenty of precedent. At the time the COVID emergency was declared, 60 national emergencies had been declared since the National Emergencies Act was enacted 45 years ago, and 31 of them (including the emergency are still in effect, having been renewed repeatedly. I figure the pandemic emergency to last for another nine months at least.

As I noted above, the House HEROES Act last May sought to plug the CARES Act hole that left home confinees in a non-permanent status. HEROES died a lonely death on January 2nd, but the new 117th Congress can fix the home confinement problem simply enough. Even if Congress does not, the President could grant conditional clemency or district courts could grant compassionate release to keep these folks on home confinement.

Even if it doesn’t, the Biden DOJ can walk back the OLC opinion (and the reasoning is shaky enough that there is plenty of room for reinterpretation) without much difficulty.

timecover2310122There is scant policy justification for returning people on home confinement to prison, unless sheer meanness is now an Administration goal. (Sheer meanness is a criterion more at home in the last Administration, the one that issued the OLC opinion, than with the new people in charge). The BOP has first determined that inmates it proposes sending to home confinement pose little risk to public safety but high risk of COVID, meaning that the CARES Act cohort includes a lot of older and sicker folk. They’re the ones, unsurprisingly who cost the BOP the most to care for. And the lower BOP prisoner population (a drop of 12.5% in a year) has eased the burden the BOP faces from staff shortages. Because the BOP has always had the discretion to return these persons to prison for misconduct, there’s no compelling public safety or cost justification for sending everyone back to prison after the pandemic is over.

In fact, there was probably no compelling need for the outgoing Administration to drop this opinion on the way out the door, unless of course the Trump appointees wanted to create as much legal vandalism for the Biden DOJ to clean up as possible.

Dept. of Justice, Memorandum Opinion for the General Counsel of the Federal Bureau of Prisons (January 15, 2021)

Sentencing Law and Policy, Notable OLC opinion on “Home Confinement of Federal Prisoners After the COVID-19 Emergency” (January 21, 2021)

Forbes, Department Of Justice Lays Plans For Federal Inmates On Home Confinement To Return To Prison (January 21, 2021)

– Thomas L. Root

Where Did The HEROES Go? (And Other Stories That Puzzle Inmates) – Update for January 4, 2021

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DEAD HEROES

deadheroes210104Last May, the House of Representatives passed the HEROES Act, intended to be the second coronavirus stimulus. The bill, which included in its $3 trillion giveaway a number of criminal justice changes (like letting eligible elderly offenders get home confinement after two-thirds of their good-time adjusted sentences, instead of gross sentences), was promptly denounced by Republicans appalled at its price tag and then ignored by the Senate.

Eight months later, I am still getting questions about it, mostly from people who may have been sleeping in the back of the classroom during high school government class.

A bill passed by the House must then be passed by the Senate and then signed by the President in order to become law. In the case of HEROES, the Senate refused to consider the bill. Rather, the Senate passed the HEALS Act in response to HEROES, a bill that was then immediately not considered by the House.

sleep210104What finally happened last month was that the Senate and House worked out a compromise bill that was neither HEROES nor HEALS. The compromise bill included no sentencing provisions at all, a fact that seems not to detain prisoners at all. One inmate wrote me last weekend, asking me to confirm the rumor that § 205 of the stimulus bill gave elderly offenders the home confinement adjustment they sought. Alas, § 205 is entitled “Pipeline Safety Management Systems,” a provision of interest to elderly offenders only if they’re in the natural gas transmission business.

Another inmate asked me whether HEROES might still pass in January or February. Remember this from high school civics, boys and girls: every Congress lasts two years, and ends on January 3. The 116th Congress ended yesterday, and the 117th Congress starts its two-year run today. When a two-year Congress ends, any bill not passed by both the House and Senate is dead.

That means the sentencing changes contained in HEROES will have to be introduced all over in a new bill.

caresbear210104Someone else wondered how long the BOP’s home confinement authority will last under the CARES Act. There are three answers to that. First, the BOP’s authority lasts until 30 days after the COVID-19 national emergency declared by Trump ends. The National Emergencies Act requires any emergency to end one year after it is declared, unless extended by the President. Since some national emergencies (such as with respect to Iranian assets) have continued for four decades. The current COVID emergency ends in March, but there is little doubt Biden will extend it.

Second, the BOP’s authority only lasts as long as the Attorney General’s determination that the emergency conditions are “materially affect[ing] the functioning of the BOP.” Attorney General Barr made that determination last April, but he or the new AG could withdraw the finding at any time.

Finally, the CARES Act lets the BOP Director put prisoners in home confinement “as the Director determines appropriate.” This provision delegates virtually unreviewable power to the BOP. If the Director decided tomorrow that he had sent all the people he needed to send, he could pull the plug.

A year ago, the BOP population stood at 175,858 inmates. As of last week, the number had fallen 13.5% to 152,184. That’s a 31% drop from six years ago.

No one knows when the BOP will no longer place prisoners in home confinement. But we’re much closer to the end than we are to the beginning.

HEROES Act, H.R. 6800 (May 15, 2020)

HEALS Act, S.4318 et al. (July 27, 2020)

Section 205, Consolidated Appropriations Act, 2021 (December 27, 2020)

Section 12003(b)(2), CARES Act, H.R. 748 (March 28, 2020)

Sentencing Law and Policy, Federal prison population closes out 2020 at new modern low of 152,184 according to BOP (December 31, 2020)

– Thomas L. Root

Money and Education… Just No Sentence Relief – Update for December 28, 2020

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‘WHAT THE PELL?’ – NO SENTENCE REFORM IN STIMULUS, BUT THERE’S COLLEGE MONEY AND CASH FOR INMATES

Remember all of the sentence reform bennies in last May’s HEROES Act, passed by the House? Forget about them.

HR133-201228The 5,593-page stimulus package passed by Congress and signed last night by President Trump had none of the changes to compassionate release, CARES Act home confinement or elderly offender home confinement included in HEROES. However, the bill does resume federal college financial aid to prison inmates – Pell grants – that was banned in the 1994 crime bill championed by then-Senator Joseph R. Biden Jr.

The measure was part of a bipartisan deal struck by House and Senate education leaders to address affordability and equity in higher education. Two years ago, leaders in both houses, as well as the education secretary, Betsy DeVos, agreed that the 1994 ban should be revisited. In 2015, President Barack Obama’s Education Department piloted an experimental program called “Second Chance Pell” that allowed 12,000 incarcerated students to be eligible for the financial aid for distance learning and other programs that required tuition. Secretary DeVos expanded the program and urged Congress to make it permanent.

takethemoney191015The other curious feature – omission, perhaps – in the new stimulus package is this: after the uproar over inmates being eligible to receive the $1,200 stimulus payment in the CARES Act, there was no doubt that inmates would be cut out of any stimulus payment in the bill signed last night. But the legislation contains not a whisper that incarcerated people are exempt. Rather, it merely adopts the CARES Act eligibility requirement without change, meaning that inmates remain eligible for the stimulus payment, just like they were last spring.

The New York Times, Financial Aid Is Restored for Prisoners as Part of the Stimulus Bill (December 23, 2020)

Rules Committee Print, Consolidated Appropriations Act, 2021 (Senate Amendment to HR 133) (December 21, 2020)

– Thomas L. Root

Congress Leaves Stimulus – and Federal Prisoners – Up In The Air – Update for August 10, 2020

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DON’T START TO FEEL TOO STIMULATED JUST YET

Congress left Washington, D.C. last Friday for its August recess without passing a supplemental stimulus bill. The Democrats are pushing the HEROES Act, passed by the House last May, which proposes $3.5 trillion in spending and includes a lot of beneficial provisions for federal prisoners. The Republican-controlled Senate favors the HEALS Act, which includes about $1 trillion in spending but nothing of the sentencing relief measures favored by the House.

senatestimulus200810The HEROES Act provides that the Bureau of Prisons shall send to home confinement anyone who is 50 or over, is within 12 months of release, or has a list of COVID-19 risk conditions. Those conditions, which were just expanded for a second time by the Centers for Disease Control and Prevention on July 30, include pregnancy, heart disease, asthma, diabetes, HIV, cancer, sickle-cell anemia, respiratory problems, obesity, hypertension, or immune system weaknesses. The only exception are people who pose a specific and substantial risk of bodily injury to or to use violent force against another person.

What’s more, courts would be required to reduce sentences for people unless the government can show by clear and convincing evidence that the defendant poses a risk of “serious, imminent injury” to an identifiable person. The Act also incorporates a reduction of the elderly offender home detention program sentence requirement (the subject of a separate bill that has already passed the House, H.R. 4018) to two-thirds of the sentence reduced by good time, instead of the current two-thirds of the whole sentence.

The Health, Economic Assistance, Liability Protection and Schools (HEALS) Act being pushed by the Senate is a mashup of eight other bills, none of which favors prisoners. What’s worse, HEALS’ stimulus package of an additional $1,200 per person is now withheld from people who were prisoners for every day of the 2020 calendar year.

Senate Democrats are trying to get the HEALS Act to require that phone calls from federal prisons remain free during the pandemic, which is a fig leaf (but not much of one) for prisoners.

No one knows whether a final bill, if there even is one, will include any of the House provisions.

housestimulus200810Several groups led by ACLU wrote to Senate and House leaders last week, urging that any stimulus package require the BOP to transfer vulnerable federal inmates to home confinement, clarify the authority of courts to order compassionate release based on COVID-19, and reduce the amount of time courts must wait before considering compassionate release motions during the pandemic. The letter also called on Congress to expand the elderly offender home detention program.

Finally, the House last week added an amendment to the 2021 Commerce, Justice, Science, and Related Agencies Appropriations bill which prohibits the BOP from collecting its 25% fee from halfway house or home confinement inmates. “For returning citizens lucky enough to find jobs, especially in the midst of a national pandemic and economic crisis,” Congresswoman Eleanor Holmes Norton (D-District of Columbia) said, “charging up to 25% of their income in unnecessary fees is not only unfair, it is counterproductive. Returning citizens could far better use this money to save for future rent, child support and fines and fees associated with their conviction, such as restitution.”

H.R. 6800, HEROES Act

S.4318 – American Workers, Families, and Employers Assistance Act

The Hill, Senate Democrats push to include free phone calls for incarcerated people in next relief package (August 6, 2020)

ACLU Leadership Conference, Open Letter to Senate and House Leaders (August 4, 2020)

Press Release, Norton Amendment Prohibiting Bureau of Prisons from Collecting Subsistence Fees from Returning Citizens Passes House (August 3, 2020)

– Thomas L. Root

Mr. Sessions, “Depart Immediately Out of This Place…” – Update for July 22, 2020

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JEFF, WE HARDLY KNEW YE (NOR DID WE WANT TO)…
Not even Alabama wants you anymore, Jefferson...
        Not even Alabama wants you anymore, Jefferson…

Little-noted but good political news last week: former Senator and Attorney General Jefferson Beauregard Sessions III, one of the principal roadblocks to any meaningful sentence reform (think of him as the guy who kept the Fair Sentencing Act of 2010 from being retroactive back when it passed), lost his bid to be nominated as Republican candidate for senator from Alabama in a primary battle with former Alabama football coach Tommy Tuberville.

I’m no Alabama fan (and I was never much for Nick Saban), and I suspect Tuberville is a tyro and Presidential sycophant, but I nonetheless cheer his electoral win. For Mr. Sessions, I recall Oliver Cromwell’s dismissal of the Rump Parliament:

It is high time for me to put an end to your sitting in this place, which you have dishonored by your contempt of all virtue, and defiled by your practice of every vice.

Ye are a factious crew, and enemies to all good government.

Ye are a pack of mercenary wretches, and would like Esau sell your country for a mess of pottage, and like Judas betray your God for a few pieces of money.

Is there a single virtue now remaining amongst you? Is there one vice you do not possess?

Ye have no more religion than my horse. Gold is your God. Which of you have not bartered your conscience for bribes? Is there a man amongst you that has the least care for the good of the Commonwealth?

Ye sordid prostitutes have you not defiled this sacred place, and turned the Lord’s temple into a den of thieves, by your immoral principles and wicked practices?

Ye are grown intolerably odious to the whole nation. You were deputed here by the people to get grievances redressed, are yourselves become the greatest grievance.

Your country therefore calls upon me to cleanse this Augean stable, by putting a final period to your iniquitous proceedings in this House; and which by God’s help, and the strength he has given me, I am now come to do.

I command ye therefore, upon the peril of your lives, to depart immediately out of this place.

Go, get you out! Make haste! Ye venal slaves be gone! So! Take away that shining bauble there, and lock up the doors.

In the name of God, go!

In Alabama, the Republican candidate is in all likelihood the November winner.

sessionsquote170522

I admit that I have written Sessions’ political epitaph before.  As a Senator, he was a pimple on the ass of criminal justice reform. As an Attorney General, he was a boil. But at last, he is gone.

If current polls hold, the Democrats will sweep the presidency, keep the House and retake the Senate for 2021. Given Democratic President Joe Biden’s public adoption of very ambitious sentence reform in his platform, the elimination of Sessions as an antagonistic senator is a positive development for those looking on legislators to build on the First Step Act with additional changes in the criminal code in 2021.

Sessions get the boot. Will the President and Republican Senate be next?
Sessions get the boot. Will the President and Republican Senate be next?

By the way, if there is any hope for any reform legislation this year – such as sending people 60 years old or older to home confinement after doing two-thirds of their good-time reduced sentences, not their total sentences – it will be included in the stimulus package that the Senate has indicated it will announce later this week. Majority Leader Mitch McConnell (R-Kentucky) has said the Senate will not pass the House HEROES Act, a “sprawling $3 trillion bill,” as Forbes put it, approved by the House in June.

The focus is on cost, with the Senate wanting to limit a second stimulus to a lousy $1 trillion. The sentencing reform measures in the House version don’t really cost anything, so some may be included. Given McConnell’s virulent opposition to anything that smacks of sentencing reform, not much is likely to make the final cut (if anything).

Rolling Stone, So Long, Jeff Sessions (July 15)

Biden-Sanders Unity Task Force Recommendations (July 9)

Forbes, Second Stimulus Bill Update: Everything You Need To Know Before The Senate Meets Next Week (July 16)

– Thomas L. Root

Hoping the Caboose Stays Attached to the Train – Update for May 18, 2020

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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.

HOUSE OF REPRESENTATIVES TUCKS INMATE COVID-19 RELIEF INTO HEROES ACT

caboose200518The House passed the HEROES Act of 2020, a $3 trillion coronavirus-relief package, last Friday by a narrow 208-199 vote. The measure marks the Democrats’ starting point for talks with Republicans and the White House on the next round of stimulus. Fourteen House Democrats, many of whom were elected in 2018 from swing districts, voted against it. One Republican, Peter King (New York), voted for the bill.

Republicans are saying the bill, H.R. 6800, has no prospect of passing the GOP-led Senate. “It’s a parade of absurdities that can hardly be taken seriously,” Senate Majority Leader Mitch McConnell (R-Kentucky) was quoted in the Wall Street Journal as having said Thursday night. McConnell said he had spoken recently with President Trump, and that they agree another bill is probably necessary but that “it’s not going to be a $3 trillion left-wing wish list like the speaker is apparently going to try to jam down the throats of her majority.”

Why do I care (except that my bride and I could use another $2,400 check)? I care because tucked into the bill starting at page 1683 (§ 191101), is the so-called Pandemic Justice Response Act. That section makes clear that the House of Representatives is not terribly impressed with the Bureau of Prisons’ efforts so far to reduce its inmate population because of COVID-19.

The House is not alone. Last week, the U.S. District Court for the District of Connecticut minced no words about the BOP’s exercise (nonfeasance would be a better term) of its CARES Act authority to send FCI Danbury inmates to home confinement:

In spite of the explicit statutory authorization in the CARES Act to make widespread use of home confinement in response to the threat posed by COVID-19, and the exhortations of the head of the government department in which the Bureau of Prison sits, the implementation of this directive at FCI Danbury has been slow and inflexible. The Warden indicates that only 159 inmates have been reviewed since March 26, and a mere 21 inmates have actually been placed on home confinement, out of a population of roughly 1,000. Moreover, the criteria apparently being used by the Respondents to evaluate inmates for home confinement evidence a disregard for the seriousness of the health risk faced by vulnerable inmates. Indeed, the most recent inmate bulletin regarding home confinement criteria does not even expressly mention health risks or how they will be evaluated… In fact, the inmate bulletins make clear that those who have not served a specified percentage of their sentences are categorically disqualified: any inmate who has not served at least 50% of his or her sentence is deemed ineligible for home confinement, irrespective of vulnerability to COVID-19. Other criteria in the inmate bulletins are similarly unrelated to medical vulnerability and, at best, only tangentially related to public safety. For example, any inmate with an incident report in the past 12 months—no matter the seriousness—is deemed ineligible for home confinement, regardless of any health condition he or she might have. At oral argument, the Government suggested that such an inmate could seek compassionate release as an alternative. But that is a dead end at FCI Danbury: Of the 241 requests for compassionate release filed since the COVID-19 crisis began, the Warden has signed off on exactly 0.

drno200518The HEROES Act seeks to solve the BOP’s unfortunate predisposition to read any grant of statutory discretion to be the right to say “no, no and hell, no!” by providing that the Bureau shall (not may but shall) send to home confinement anyone who is 50 or over, is within 12 months of release, or has a list of COVID-19 risk conditions. Those include pregnancy, heart disease, asthma, diabetes, HIV, cancer, sickle-cell anemia, respiratory problems or immune system weaknesses. The only exception are people determined by clear and convincing evidence to pose a specific and substantial risk of bodily injury to or to use violent force against another person.

What’s more, courts would be required to reduce sentences for people unless the government can show by clear and convincing evidence that the defendant poses a risk of “serious, imminent injury” to an identifiable person.

The Act also incorporates a reduction of the elderly offender home detention program sentence requirement (the subject of a separate bill that has already passed the House, H.R. 4018) to two-thirds of the sentence reduced by good time, instead of the current two-thirds of the whole sentence. This would make an elderly offender doing a 120-month sentence eligible for home confinement at 68 months rather than 80 months.

noplacelikehome200518Under CARES Act home confinement, all the BOP is doing is designating an inmate’s home as the place of imprisonment. Nothing prevents the BOP from redesignating an inmate on home confinement back to prison at the agency’s whim. The HEROES Act would prohibit reincarceration of people sent to home confinement for no better reason than the pandemic might be over.

The HEROES Act is an 1800-page train, leaving the Pandemic Justice Response Act to pretty much be the caboose. While everyone considers it likely some of the HEROES Act will be approved by the Senate, no one can be sure whether the caboose will still be attached to the train when the Act finally pulls into the station.

Wall Street Journal, House Narrowly Passes $3 Trillion Aid Package (May 16)

H.R. 6800, HEROES Act of 2020

– Thomas L. Root