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NBC Reports What Prisoners Already Know About FSA Credit Failure – Update for June 4, 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.

NBC REPORTS THAT HALFWAY HOUSE CAPACITY INTERFERES WITH FSA CREDITS
Not this kind of halfway house...
Not this kind of halfway house…

NBC News reported Saturday what will come as little surprise to many prisoners who are counting on FSA credits for the additional halfway house/home confinement promised by 18 USC 3624(g)(2): the First Step promise of reward for completing programming is illusory for many people granted more halfway house/home confinement time by the Bureau of Prisons but turned away from halfway houses for lack of space.

Sreedhar Potarazu, who successfully sued the BOP in 2022 over its repeated miscues in calculating FSA credits, alerted NBC to nine cases in which inmates were incarcerated between two and eight months past their “last date inside,” a term that he says denotes when an inmate can be transferred to prerelease custody because of FSA credits they had earned beyond the 365 days that the BOP is allowed to subtract from their sentence.

“Even one life kept in longer is an injustice,” Potarazu told NBC. “The taxpayer should care because they’re footing the bill. You may not have anyone in there, but you’re still paying for it.”

The BOP lists contracts with 145 halfway houses nationwide on its website, and an agency spokesperson told NBC that those halfway houses have more than 10,000 beds. The BOP said more than 8,200 prisoners are designated to halfway houses, but it is not clear how many are in home confinement but supervised by halfway houses.

The BOP is not much help in tracking the problem. The agency admitted to NBC that it keeps no records on how many inmates are losing the benefit of FSA credits already earned because halfway houses are refusing placement.

“Every effort is made to review and adjust available resources within the community so individuals may utilize” time credits, the BOP told NBC News, but that “some areas, specifically populated urban areas, are experiencing capacity concerns.”

bureaucracybopspeed230501The BOP insists that “credits are being calculated as required under the First Step Act.” But NBC said, “As the law has been implemented over the years, concerns have grown about whether time credits are being properly added up and applied as case managers log the information.”

Rep David Trone (D-MD), a member of the House Appropriations Committee, complained, “I always refer to the First Step Act as criminal justice lite,” Trone said. “We need to get real savings and give people real second chances. We haven’t executed the First Step Act properly.”

Writing in Forbes last week, Walter Pavlo argued that the BOP could bypass halfway house for a lot of prisoners and instead place them directly in home confinement. “Many inmates report that due to limitations in halfway house capacity that they are not able to utilize those credits for home confinement and they stay in prison… Overall, this issue of housing inmates in prison longer than necessary, and for which the BOP currently has the power to transfer to the community, affects tens of thousands of prisoners, many are minimum or low-security inmates. The BOP has the ability, but it is up to BOP Director Colette Peters to implement change that is within her power… something she has often spoken about.”

Ames Grawert, a senior counsel for the Brennan Center for Justice, acknowledges the capacity problem but argues that it’s up to Congress to ensure the BOP has the funding to implement the First Step Act and the infrastructure is in place. “Implementation is always a challenge in any law, especially when you’re dealing with a system that’s as complex and with so many issues as the Bureau of Prisons.”

Potarazu, an ophthalmic surgeon, spent at least four additional months in prison after his FSA eligibility date due to an admitted BOP error in calculating the credits. He filed a 28 USC § 2241 petition for habeas corpus in 2022 seeking proper calculation of his credits and designation to halfway house by July 31, 2022, the proper date for the transfer.

runoutclock221227Potarazu’s case was finally ruled on last week, dismissed as “moot” because he was no longer in BOP custody. The Court ruled, “Petitioner’s requested relief—immediate placement in pre-release custody and/or supervised release—has already been achieved” because he was transferred to a halfway house on May 18, 2023” (10 months late) and released from custody on December 22, 2023, “Thus, Petitioner does not maintain any redressable claims and does not satisfy the collateral consequences exception.”

Potarazu told NBC he ultimately wants to see others released when the BOP is legally obligated to do so, and that prisoners shouldn’t have to assume they’re going to remain behind bars longer than they should and go to the lengths of litigation that can take years.

“Even when you have the foresight to do so, you’re still trapped,” he said.

NBC News, Despite First Step Act, some federal inmates remain in prison extra months (June 1, 2024)

Potarazu v Warden, Case No MJM-22-1334, 2024 USDist LEXIS 94086 (D.Md, May 28, 2024)

Forbes, Bureau Of Prisons Stumbles On Reducing Costs On Incarceration (May 30, 2024)

– Thomas L. Root

‘You Can Earn Them, Just Not Spend Them,’ Said No One To The Senators – Update for January 22, 2024

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JUDICIARY COMMITTEE FIRST STEP ACT HEARING IGNORES HALFWAY HOUSE ELEPHANT

Senate Judiciary Committee leader Richard Durbin (D-IL) presided over a hearing last Wednesday commemorating the 5th anniversary of the First Step Act. The testimony was positive, upbeat, and largely useless.

Cake201130“Five years ago, we wrote the blueprint for reimagining rehabilitation and protecting public safety, and now we know by the numbers that it works,” Durbin said to open the proceeding. “Today, I am looking forward to reflecting on what we can achieve… In order to make our system fairer, we must continue to learn from and [build upon] the proven successes of ‘smart on crime’ policies like the First Step Act. We must provide more opportunities for those who are incarcerated to reenter society successfully, reunite with their families, and contribute to their communities.”

Ja’Ron Smith, former Deputy Assistant for Domestic Policy under Trump, noted that the recidivism rate for First Step releasees is about 37% lower than what it was before the Act passed, used to be. Smith said, “For those released under the First Step Act, the rate is just 125. And technical violations – not new crimes – account for a third of that number.”

J. Charles Smith III, president of the National District Attorneys Assn, said First Step “did a great job of differentiating between good people making bad decisions and bad people making bad decisions. The bad people who make bad decisions stay in jail… The good people who made a bad decision, were convicted for it, [and] went to jail for it, are getting rehabilitated and released earlier as well, as they should.”

Steve Markle, an officer with the National Council Of Prison Locals, lauded the Act but said the Federal Bureau of Prisons 20% staffing shortfall (40% among correctional officers) “not only compromises safety by reducing the number of staff available to respond to emergencies but also hinders the provision of programming for the First Step Act. To fully realize the Act’s potential,” he said, “it is crucial to address the critical staffing crisis within the Bureau. The Council believes that the staffing crisis can only be resolved by addressing the pay band issue.”

Not this kind of halfway house...
Not this kind of halfway house…

It fell to Walter Pavlo, who was not a witness at Durbin’s lovefest, to explain a major glitch in First Step Act’s implementation of the evidence-based programming problem. Inmates are motivated to earn credits because those credits can buy up to a year off their sentences and – if any credits are left after the one-year credit -more halfway house or home confinement. But, writing in Forbes last week, Pavlo observed that inmates are being denied the right to spend those credits because “the BOP does not have room in halfway houses to monitor those who have rightfully earned First Step Act credits. The result, thousands of prisoners languish in expensive institutions rather than being placed in community halfway houses.”

Prisoners with many months of First Step halfway house/home confinement credit are being told by halfway houses that they cannot be accommodated. I know of one prisoner awarded his nine months of halfway house/home confinement credit only to be told that the halfway house could only give him a third of that. The Act states in 18 USC 3624(g)(11) that the BOP Director “shall ensure there is sufficient prerelease custody capacity to accommodate all eligible prisoners.” Pavlo writes, “This is a problem that is going to persist unless something is done.”

The BOP’s Residential Reentry Management Branch administrator said in a speech two weeks ago that halfway houses had a “90-day projection of 99% utilization,” meaning, Pavlo said, “that there was no room to place any more prisoners.”

The BOP knew five years ago that it would have to increase halfway house capacity, but doing so is a bureaucratic nightmare. Because the BOP has relied on halfway house staff to monitor home confinement inmates, the capacity crunch has affected home confinement placement as well. A decade ago, the BOP worked with the US Probation Office to get some prisoners monitored on Probation’s Federal Location Monitoring (FLM) to allow some home confinement prisoners to be monitored by Probation rather than halfway houses. But as of now, only 3.6% of home confinement prisoners are on FLM.

The BOP has an Interagency Agreement with Probation which Pavlo says presents “an opportunity to expand FLM in a manner that is both cost-effective and consistent with the evidence-based practices. However, each district court is responsible for participating, or not, in FLM. Getting every district court to coordinate with the BOP has been an issue for years, as the few prisoners in FLM clearly demonstrate.”

release161117FLM costs far less than a halfway house per diem or halfway house-monitored home confinement. However, FLM is managed by each of the 94-odd federal judicial districts. Some participate with the BOP: others do not. Pavlo said a retired BOP executive told him, “I think the BOP would be receptive to expanding the program and it would resolve many of the issues related to capacity for prerelease custody, but the Courts are going to have to help.”

Senate Judiciary Committee, Five Years of the First Step Act: Reimagining Rehabilitation and Protecting Public Safety (January 17, 2024)

Press Release, Durbin Delivers Opening Statement During Senate Judiciary Committee Hearing on the Fifth Anniversary of the Landmark First Step Act (January 17, 2024)

Forbes, The Bureau of Prisons’ Halfway House Problem (January 16, 2024)

– Thomas L. Root

Demagoguing Home Confinement – Update for November 16, 2023

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SENATE REPUBLICANS SEEK TO CORRAL CARES ACT TERRORISTS

Just when CARES Act prisoners still serving home confinement thought it was safe for them to believe they would remain at home, Sen. Marsha Blackburn (R–TN) has introduced S.J.Res. 47, legislation that would reverse a DOJ rule allowing prisoners on CARES Act home confinement to complete their sentences at home.

caresbear231116On October 30, Blackburn and 26 co-sponsoring Senators introduced the bill under the Congressional Review Act, 5 USC Ch. 8, which would overturn a Justice Department rule allowing some federal offenders to remain under house arrest after the end of the government’s COVID-19 emergency declaration.

“While there are certainly plenty of legitimate issues with the BOP that merit senators focusing oversight on the Bureau, CARES Act home confinement is an example of a program that is working—rehabilitating people while holding them accountable, all while driving down costs and maintaining community safety,” Kevin Ring, vice president of criminal justice advocacy at Arnold Ventures, a private philanthropy group, said.

cotton171226Sen. Tom Cotton (R-AR) – whose opposition to the First Step Act was responsible for getting those prisoners with 18 USC § 924(c) convictions excluded from obtaining FSA credits for successfully completing recidivism reduction programs written into the law –declared that extending CARES Act home confinement (especially now that every single federal inmate has been vaccinated or offered the vaccine for COVID-19) “betrays victims and law-enforcement agencies that trusted the federal government to keep convicted criminals away from the neighborhoods that the offenders once terrorized.”

There’s nothing quite as easy to demagogue as crime and punishment.

Never mind that the Bureau of Prisons has refused CARES Act home confinement to anyone convicted of sex crimes, terrorism, violent offenses, or even those who had a violent disciplinary report while in prison. CARES Act home confinees had to have low or minimum security status and be at low or minimum risk of recidivism under the Dept. of Justice PATTERN scoring system.

The Congressional Review Act, which was passed 27 years ago, creates a process for Congress to overturn federal agency rules. In 2017, a Republican-controlled Congress used the CRA to invalidate dozens of Obama-era federal rules. Any member of Congress can introduce a CRA joint resolution of disapproval, which is referred to the relevant Senate or House committee. A CRA resolution must be passed by a majority in both the House and Senate and then signed by the president. If the President vetoes the CRA resolution, Congress can override the veto with a two-thirds majority in both houses.

flyelephantgun231116Given that the Biden Administration pushed the new rule and the Senate is controlled by Democrats, passage of S.J.Res. 47 is doubtful. If it would pass both houses, but Biden vetoes it, there is no chance two-thirds of Congress would override it.

Last week, BOP Director Colette Peters told a House subcommittee that “as of August 31, 2023… less than 0.05% of people [on home confinement] have been returned to custody for committing new crimes.” Given that statistic, S.J.Res. 47 seems a lot like shooting a fly with an elephant gun.

S.J.Res. 47, Congressional disapproval of the rule submitted by the Dept of Justice relating to CARES Act (October 30, 2023)

Reason, Senate Resolution Would Send Federal Offenders Back to Prison 3 Years After Being Released to Home Confinement (November  6, 2023)

National Health Law Program, Congressional Review Act (October 2020)

– Thomas L. Root

Five Years Later, BOP Still Doesn’t Have First Step Act Right – Update For October 27, 2023

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FIVE YEARS SHOULD BE LONG ENOUGH TO GET FIRST STEP ACT RIGHT

firststepB180814The First Step Act, including its innovative system for granting credits to inmates who complete programs designed to reduce recidivism, is 5 years old in less than two months. But it took three years of fits and starts before the Bureau of Prisons pretty much had a final set of rules for administering FSA credits (after a proposal that was as miserly as the final rule was generous hanging around for a year of comments).

Now, almost two years later, the BOP is still muddled in trying to launch a computer program of forward-looking calculation for FSA credits that predicts when a prisoner will leave BOP custody for halfway house or home confinement (HH/HC). The agency still lacks a comprehensive list of what types of inmate employment or education constitutes “productive activities,” which are supposed to continue a prisoner’s earning of FSA credits. And the BOP continues to deny HH/HC placement because it lacks resources, despite First Step’s requirement that inmates be placed to the full extent of their FSA credits.

Writing in Forbes last week, Walter Pavlo observed that “prisoners, mostly minimum and low security, who are eligible for these credits have done their best to try to participate in programs but many complain of a lack of classes, mostly due to the challenges the BOP is having in hiring people. However, beyond that, the BOP has been liberal in accepting that the BOP does not have the staff to fulfill the demand for classes and credits are being given anyway, mostly for participating in productive activities, like jobs. This misses the primary mission of programming meant to have a lasting, positive influence on prisoners after they leave the institution.

“Now,” Pavlo said, “nearly two years since the Federal Register’s Final Rule in January 2022, the BOP still has no reliable calculator to determine the number of FSA credits a prisoner will earn during a prison term… One of the last remaining issues is for the BOP to have a forward-looking calculation for FSA credits that predicts when a prisoner will leave BOP custody. It sounds easy, but the BOP’s current computer program can only assess credits after they are earned each month, and it usually takes a full month after they are earned for them to post. The result is that each month, prisoners’ families look at BOP.gov to see if there are indeed new credits and if the amount they are expecting matches what is expected. This moving date is important because it can also determine when prisoners can leave prison for home confinement or halfway house. The result, prisoners are staying in institutions, institutions that are understaffed, for days, weeks and months beyond when they could be released to home confinement or halfway houses. This is defeating one of the other initiatives of the First Step Act and that was to get more people out of decaying BOP facilities and into another form of confinement that is far less expensive.”

Sen. Richard Durbin (D-Illinois)
Sen. Richard Durbin (D-Illinois)

First Step is important to Congress. When BOP Director Colette Peters appeared for a Senate Judiciary Committee oversight hearing chaired by Senator Richard Durbin (D-IL) last month, “her answer failed to address the continued shortcomings of the implementation,” Pavlo said. “There are thousands of prisoners, many minimum security, who are stuck in prison because of a lack of a computer program that simply calculates forward-looking FSA credits…This computer program was actually alluded to in declarations the BOP submitted to federal courts in 2022 stating that it would be implemented ‘soon.’ Over a year since those declarations, there is still no program to accurately calculate when a prisoner will leave an institution.”

The BOP is facing a substantial halfway house bed shortage as well. There is also the issue of insufficient halfway house space. Unlike HH/HC placement for prisoners without FSA credits, 18 USC 3624(g)(2) does not give the BOP discretion. Subsection 3624(g)(2) says that if a prisoner is eligible (has FSA credits not already applied to a year off of the sentence), he or she “shall be placed in prerelease custody as follows,” describing halfway house or home confinement. There’s nothing hortatory about it. The BOP is required to put the prisoner in HH/HC. Excuses not accepted.

halfway161117Pavlo argued that “the only way to address this situation is to implement a task force to move prisoners through the system and catch up from the failures of the past few years. Systemic challenges of shortages of staff and augmentation which takes away staff like case managers from their jobs, cause continued problems. The BOP needs to get caught up, move prisoners along and develop reliable systems that will assure that the FSA is implemented as the law requires. While the BOP has made great strides, these last challenges of full implementation can be achieved by focusing a concerted effort on three issues; fixing the calculator, assessing the prisoners who will soon be going home as a result of that computer fix, and expanding halfway house capacity to handle them.”

Forbes, Time For A Bureau Of Prisons Task Force To Implement The First Step Act (October 16, 2023)

– Thomas L. Root

With CARES Act Almost Over, BOP Streamlines Process – Update for March 20, 2023

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BOP STEPS ON THE GAS IN CARES ACT’S FINAL DAYS

CARESEnd230131President Biden will end the COVID-19 national emergency on May 11, 2023. The immediate effect for the Federal Bureau of Prisons is that the agency will lose its authorization to place prisoners in extended Coronavirus Aid, Relief, and Economic Security (“CARES“) Act,  home confinement 30 days later.

Among the myriad of federal responses mandated by the bloated CARES Act, a $2.2 trillion response to COVID-19 that runs some 324 pages in Volume 134 of the United States Statutes, the BOP was given authority in § 12003(b)(2) to “lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.” Practically speaking, this gave the BOP the right to place prisoners on home confinement indefinitely, despite the old 18 USC 3624(c)(2) limitation of 10% of the sentence up to a maximum of six months.

The CARES Act authority continues during what § 12003(a)(2) calls the “covered emergency period.” This period ends “on the date that is 30 days after the date on which the national emergency declaration terminates.” In other words, with the national emergency ending on May 11, the “covered emergency period” ends on Saturday, June 10th.

As the BOP’s CARES Act authority sunsets, some have speculated the Bureau would slow the transfer of prisoners to home confinement. But writing in Forbes last week, Walter Pavlo reported that the BOP’s Office of Public Affairs told him, “The Bureau of Prisons (BOP) has not made efforts to slow CARES Act home confinement placements as the end of the CARES Act approaches. We have issued no guidance regarding this matter.” Pavlo called that “welcome news to prisoners who meet the eligibility requirements for CARES Act placement.”

caresbear230124Hard evidence the BOP is pushing CARES Act release arrived last week with the report of an internal BOP memorandum dated March 9 that relaxed prior BOP policy on CARES Act approvals. The BOP has established criteria for CARES Act placement, including serving a minimum portion of one’s sentence, prior disciplinary reports, and history of violence. When a prisoner did not meet all of the conditions, he or she could still be recommended by the institution for home confinement, but the referral had to be approved by a BOP Central Office Home Confinement Committee.

One of the HCC’s practices was to solicit comment from the US Attorney’s Office that had prosecuted the inmate. Pavlo noted that “in many cases, prosecutors did oppose rather than just defer to the BOP, who know best how to house prisoners in its care.”

Up to now, those prisoners denied CARES Act placement by the HCC have been required to go back to Central Office later even when they met all CARES Act criteria. Pavlo said, “This usually led to the same opposition and denial.” But the March 9 memo ends the endless cycle of HCC approval. It says, “Effective with the issuance of this memo, referrals for home confinement placement no longer need to be submitted to the HCC if the inmate now meets all established criteria.” Now, if the inmate meets all BOP criteria, referrals for CARES Act will now be sent directly to the appropriate Residential Reentry Management Office . The RRM “will retain the final authority based on the referral and availability of community resources,” the memo says.

noplacelikehome200518Pavlo writes that “[m]any are also hoping that the DOJ extends the 30 days after the end of CARES Act to something that takes into consideration the success of the program and the conditions of prison.” Unfortunately, the hopes of those who are looking for a magical extension are misplaced. Because the BOP’s authority to place people in home confinement is limited by statute, any extension of a CARES Act-style home confinement will have to come from Congress.

Writing last week in his Sentencing Law and Policy blog, Ohio State law professor Doug Berman said, “Though it makes sense to wind down the pandemic-driven authority to transfer certain persons from federal prison to home confinement, Congress and the US Sentencing Commission and the Justice Department should carefully study the apparent success of this CARES Act program and consider ways to give BOP broader authority in non-pandemic times to move low-risk prisoners into home confinement.”

BOP, Home Confinement Criteria and Guidance (Addendum) (March 9, 2023)

Forbes, Bureau Of Prisons Sees End Of Cares Act Home Confinement, Some Prisoners Will Be Left Behind (March 14, 2023)

Sentencing Law and Policy, With pandemic legally winding down, should Congress build in CARES Act success to greatly expand BOP home confinement authority? (March 15, 2023)

– Thomas L. Root

Biden Orders More CARES Act Placement – Update for June 1, 2022

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BIDEN EXECUTIVE ORDER BREATHES NEW LIFE INTO CARES ACT HOME CONFINEMENT

President Biden last week instructed the Dept of Justice to “continue to implement the core public health measures, as appropriate, of masking, distancing, testing, and vaccination in federal prisons,” an order which specifically includes CARES Act home confinement.

home210218The Executive Order as well directs DOJ to update the BOP’s COVID-19 testing procedures, update “protocols with alternatives to facility lockdowns and restrictive housing to prevent the spread of COVID-19; and determine how many individuals who meet the requirements to be released on home confinement.”

The BOP directives came as a virtual footnote to an executive order President Biden signed on the second anniversary of George Floyd’s killing by Minneapolis police.

The Executive Order declared in Section 1 that the Administration’s policy is to ensure that “no one should be required to serve an excessive prison sentence.” To that end, the Order states, “My Administration will fully implement the First Step Act, including by supporting sentencing reductions in appropriate cases and by allowing eligible incarcerated people to participate in recidivism reduction programming and earn time credits.”

DOJ has been directed to update its “regulations, policies, and guidance in order to fully implement the provisions and intent of the First Step Act, and shall continue to do so consistent with the policy announced in section 1 of this order.”

PATTERNB190722

The Order also requires DOJ to adopt “a strategic plan and timeline to improve PATTERN, including by addressing any disparities and developing a needs-based assessment system.”

E0 14074, Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety (May 25, 2022)

Government Executive, Biden Moves to Improve Public Health Conditions in Federal Prisons and Jails (May 26, 2022)

– Thomas L. Root

Biden Proposes Clemency Lite – Update for September 20, 2021

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ADMINISTRATION TROTS OUT COMMUTATION PLAN THAT IS OPAQUE AND TINY

clemencypitch180716President Biden’s administration last week announced something that looks like a clemency plan, only much smaller. Last Monday, White House spokesman Andrew Bates said the Administration “will start the clemency process with a review of non-violent drug offenders on CARES Act home confinement with four years or less to serve.”

Those who have been invited to apply fall into a specific category: drug offenders released to CARES Act home confinement who have four years or less on their sentences. Neither the White House nor the Dept of Justice would say how many people have been asked to submit commutation applications or whether it would be expanding the universe of prisoners who would be considered.

However, according to news reports, about 1,000 home confinees – about 25% of the people on CARES Act home confinement – are included in the batch the White House wants to review. Weldon Angelos, who was pardoned for a marijuana conviction by President Donald Trump last year and works with the current administration on criminal justice reform, told Marijuana Moment that about 1,000 people were asked to report to their designated halfway houses to fill out the clemency form in recent days.

Udi Ofer, the ACLU’s deputy national political director, said he was troubled by the possibility that the White House was cleaving off CARES Act recipients into those deserving commutation and those who didn’t, arguing that the Bureau of Prisons, in originally releasing inmates under the CARES Act, had already made a determination between those who posed a threat of violence and those who didn’t.

clemency170206“We are worried that the White House is viewing this issue too narrowly and unnecessarily restricting the category of people being asked to apply for clemency,” Ofer told Politico.

Others disagree that then BOP’s decisions on home confinement – which have largely been delegated to 122-odd executive officers at BOP facilities – are a consistent or reliable indicator of who should get clemency. “It’s not clear how the Bureau of Prisons chose people for this home confinement program, which raises the question of whether it’s fair to give a special benefit to these folks not available to those who have filed clemency petitions sometimes years ago and have been patiently waiting,” said former DOJ Pardon Attorney Margaret Love.

Biden’s limited clemency plan appears not to be enough for some lawmakers. Last Friday, 28 House Democrats called on Biden to commute the sentences of all 4,000 CARES Act home confinees, as well to establish a review board for pending clemency petitions.

“We urge you to use your authority as President to immediately commute the sentences of the 4,000 people who, under the [CARES Act], are currently on home confinement and at risk of being sent back to federal prison, and further, to create an independent clemency board to review the more than 15,000 pending clemency petitions,” the letter, spearheaded by Reps. Cori Bush (Missouri), Bonnie Watson Coleman (New Jersey), Pramila Jayapal (Washington), and David Trone (Maryland), said.

The President had announced in May that he would tackle clemency in 2022.

noplacelikehome200518A BOP spokesperson told The Hill last week that the agency is focused on the “expanded criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred… The BOP and the [Department of Health and Human Services] continue to explore all potential authorities that could be exercised after the end of the pandemic to help address this issue.”

Politico, Biden starts clemency process for inmates released due to Covid conditions (September 13, 2021)

CNN, Administration to start clemency process for some federal inmates on home confinement due to Covid conditions (September 13, 2021)

Marijuana Moment, Biden Administration Asks Prisoners with Certain Federal Drug Convictions to Apply for Clemency (September 13, 2021)

The Hill, Democrats urge Biden to commute sentences of 4K people on home confinement (September 17, 2021)

– Thomas L. Root

President Said to be Considering CARES Act Partial Clemency – Update for September 7, 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.

BIDEN MAY (FINALLY) BE TAKING BABY STEPS ON CLEMENCY

The New York Times reported last week that President Biden is considering using his clemency powers – which he has not exercised in his first seven months in office – to commute the sentences of nonviolent drug offenders with fewer than four years left to serve. The contemplated intervention would not apply to those now in home confinement with longer sentences left, or those who committed other types of crimes, Biden administration sources told the Times.

The notion of clemency for some inmates is just one of several ideas being examined in the executive branch and Congress, the Times said. Others include a broader use of 18 USC § 3582(c)(1)(A)(i) “compassionate release” or 34 USC § 60541, the elderly offender home detention program, or even a law – such as the Safer Detention Act (S.312) – to allow some inmates to stay in home confinement after the pandemic.

The CARES Act permits inmates who are sent to home confinement under Section 12003(b) to remain at home until the pandemic public health emergency ends. The Times says, “That will not be soon: With the Delta variant spurring a surge in cases, the public health emergency is not expected to end before next year at the earliest.”

clemencyjack161229On August 10, Biden Press Secretary Jen Psaki said Biden was “exploring multiple avenues to provide relief to nonviolent drug offenders, including through the use of his clemency power.” The Times reported officials have confirmed that the Justice Department “will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office.” The officials said a focus on nonviolent drug offenders “dovetail[s] with Mr. Biden’s area of comfort on matters of criminal justice reform.”

Whether Biden is leaning toward commuting the sentences of drug offenders to home confinement, reducing sentence length to bring them down to the normal window 10%-or-six-month window for 18 USC 3624(c)(2) end-of-sentence home confinement, or some mix of the two, is not yet clear.

The Times reported that DOJ is still studying options that could keep non-drug offenders from being forced back into prison.

Meanwhile, criminal justice reform groups are keeping up pressure on the President. FAMM and the American Civil Liberties Union are mounting a six-figure ad campaign to pressure Biden to keep the CARES Act prisoners at home. The TV ads feature Juan Rodriguez, a federal prisoner sent home in July after doing eight of 14 years for a drug conviction. “I’m going to try to make the best out of every day I have out here,” Mr. Rodriguez says in the ad featuring him with his family and working a new job. “President Biden, please don’t separate me from my family.”

angel210907The ACLU has argued that fewer than 1% of prisoners put on home confinement had violated the terms of their release, and it was time for Biden to follow through on lowering the incarceration rate and size of the federal prison population that he campaigned on as a presidential candidate. So far, only five people sent home during the pandemic have been returned to prison for new criminal conduct.

USA Today has reported that over two dozen small business owners who have CARES Act home confinees are also asking Biden to grant clemency to prisoners. Some say losing employees to prison during a national labor shortage would not only be detrimental to their businesses, but would also keep their companies from growing.

Ohio State law professor Doug Berman complained in his Sentencing Law and Policy blog that when Biden was campaigning, he promised to “’take bold action to reduce our prison population’. But the federal prison population… has grown by over 4000 persons according to BOP numbers, from 151,646 total inmates on January 21, 2021, to 155,730 total inmates on August 26, 2021. To date, I cannot really think of any actions (let alone bold ones) that Prez Biden has taken to reduce the federal prison population. Talk of some clemency action is heartening, but just a start. And whatever clemency efforts are made, they should extend beyond just a limited group who are already home.”

The New York Times, White House Weighs Clemency to Keep Some Drug Offenders Confined at Home (August 30, 2021)

Washington Times, ACLU pressures Biden to keep convicts on home confinement out of prison due to pandemic (August 27, 2021)

USA Today, Businesses that hired inmates who were allowed to serve time at home during COVID push for clemency (August 26, 2021)

CBS News, Inmates on home confinement could be sent back to prison after the pandemic: “Why make us go back and do it again?” (September 3, 2021)

Sentencing Law and Policy, Prez Biden reportedly considering, for home confinement cohort, clemency only for “nonviolent drug offenders with less than four years” left on sentence (August 30, 2021)

– Thomas L. Root

BOP COVID Report – Update for August 10, 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.

SO WHAT ABOUT THAT COVID VARIANT?

The Bureau of Prison’s own sometimes-controversial numbers suggest the agency is holding the COVID-19 Delta line for inmates, with 310 reported ill as of last night, up only 5.4% since a week before. The BOP has complete control over that number. But it has less control over the number of ill BOP employees – up 48% from a week before, from 157 to 233 – and the number of facilities with COVID-19 present. That number jumped from 80 to 96 joints, the highest level in four months.

Raisedead210208According to data published Sunday by the U.S. Centers for Disease Control and Prevention, 50.1% of the total U.S. population is now fully vaccinated – more than 166 million people. The US now is averaging more than 100,000 new COVID-19 cases every day, the highest in almost six months. The BOP reports 55.7% of inmates and 52.5% of staff have been vaccinated.

Two more inmate deaths were reported last week, one July 17th at Texarkana and a second, on July 28th at FMC Ft Worth. Roy Berry, who died at Ft Worth, had COVID in March but had been declared recovered by the BOP. At least 257 federal inmates have died of COVID. Due to squirrely reporting from private prisons (where reports of deceased prisoners magically disappeared from time to time), the number is certainly higher than that.

USP McCreary reported 56 sick inmates, Miami FDC 25, FCI Texarkana 25, FCI Phoenix 24, USP Yazoo City 14, FMC Butner 13; and FCI Terminal Island with 11.

NPR reported last Friday on the COVID-19 Safer Detention Act, noting that the bill – sponsored by Sens Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa) – would extend compassionate release to the ever-decreasing numbers of “old law” inmates (those sentenced before 1988) still in the system.

The bill, which has passed out of the Senate Judiciary Committee and is also pending in the House, would ease COVID-19 compassionate release procedures, make permanent CARES Act home confinement, and benefit Elderly Offender Home Detention  inmates.

home190109Meanwhile, Reason magazine argued last week that the CARES Act home confinees have proven that home detention is a viable imprisonment alternative. “The overwhelming majority of those released on home detention have not reoffended. Of the 28,881 prisoners allowed on home detention last year, only 151 individuals, less than 1%, violated the terms of their confinement. Only one person has committed a new crime… In short, home detention seems to be largely successful. Most prisoners under the program have stayed out of trouble and are working to become law-abiding citizens. In doing so, they are saving taxpayers the exorbitant price of incarceration—which, on average, costs over $37,500 per year versus $13,000 per year for home confinement and monitoring.”

BOP, COVID-19 resource page (August 9, 2021)

CDC, COVID Tracker (August 8, 2021)

BOP, Inmate Death at FCI Texarkana (August 2, 2021)

BOP, Inmate Death at FMC Ft Worth (August 3, 2021)

NPR, Some Older Prisoners Aren’t Eligible For Compassionate Release. Lawmakers Want Change (August 6, 2021)

Reason, The Pandemic Showed Home Detention Works (August 6, 2021)

– Thomas L. Root

Biden Says Trump Got It Right on CARES Act Home Confinees Going Back to Prison – Update for July 29, 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.

BIDEN DOJ AGREES CARES ACT REQUIRES HOME CONFINEES TO RETURN TO PRISON, BUT ALL IS NOT LOST

comeback201019In a dying gasp last January, Donald Trump’s Dept of Justice Office of Legal Counsel interpreted § 12003 of the CARES Act to mean that anyone sent to home confinement during COVID-19 had to return to prison a month after the official state of emergency for the pandemic ends, according to officials.

Since taking office, President Biden’s administration has come under pressure from FAMM, other activists, and lawmakers – including Senate Judiciary Committee Richard Durbin (D-Illinois) and Sen Charles Grassley (R-Iowa) – to revoke the memo. But last week, The New York Times reported the Biden DOJ has concluded that the January memo correctly interpreted the law.

The COVID state of emergency is not expected to end this year, in part because of the rise of the Delta variant. “But the determination means that whenever it does end,” The Times said, “the department’s hands will be tied.”

The Times said several Administration officials “characterized the decision as an assessment of the best interpretation of the law, not a matter of policy preference.” But that didn’t slow the barrage of criticism.

backstab160404“We took President Biden at his word that he wanted to reduce mass incarceration, but this choice, to send thousands back to prison, would be doubling down on the worst parts of his legacy,” Holly Harris, president of Justice Action Network, said. “It’s time for President Biden to keep his promise, and keep these people home.” The Hill complained that “Biden and Attorney General Merrick Garland could have rescinded that policy.” Lauren-Brooke Eisen, director in the Brennan Center’s Justice Program, said, “No public interest is served in having this group of individuals reincarcerated.”

The Justice Action Network and the Brennan Center both noted that Biden campaigned heavily on criminal justice reform last year.

“On the campaign trail, President Biden vowed to take bold action to reduce our prison population, create a more just society, and make our communities safe. He said he believed in offering second chances,” Eisen said.

Forbes said, “The position of both administrations seems odd when the program has been such a success… Of the 20,000 on home detention (CARES Act plus those on home confinement because they were near the end of their prison term) there had only been 20 individuals returned to prison institutions as a result of violations. That’s a 99.9% success rate.”

interpretation210729I think the critics are missing the point. The fact that the Biden DOJ thinks the prior OLC legal analysis of the CARES Act is solid has no effect on what policy the Administration will follow. If anything, the criticism Biden is taking over last week’s Times story makes it more likely than not that Biden or Congress will find some means of keeping CARES Act people on home confinement.

The New York Times, Biden Legal Team Decides Inmates Must Return to Prison After Covid Emergency (July 19, 2021)

The Hill, Biden administration criticized over report that it is not extending home confinement for prisoners (July 20, 2021)

Forbes, Biden Administration Signals That Federal Inmates On Home Detention Will Return To Prison (July 20, 2021)

The Crime Report, Prisoners Freed During COVID are ‘Twisting in the Wind,’ say Reformers (July 23, 2021)

– Thomas L. Root