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Great Clemency Idea Or Stupid Political Stunt? – Update for March 18, 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.

WASHINGTON WEEK: SEEKING CLEMENCY FOR SOME LADIES
"I won!"
“I won!”

Congresswomen Cori Bush (D-Missouri) and Ayanna Pressley (D-Massachusetts) last Friday joined with the National Council for Incarcerated & Formerly Incarcerated Women and Girls’ initiative calling on President Joseph Biden to grant 100 women clemency in his first 100 days in office. Speaking at an event held outside the White House, Pressley told the President “to exercise his clemency authority,” adding he can grant clemency to the 100 women “by the stroke of a pen.”

Vox said several weeks ago that “advocates want Biden to act quickly” on clemency. “They point to epidemics of Covid-19 in jails and prisons, which could be eased if there were fewer people in those settings to spread the coronavirus. And they argue that acting too slowly would repeat the mistakes of Biden’s predecessors, who, if they moved on clemency at all, did so too late during their terms to do the long, hard work of broader reforms.”

clemencyjack161229Acting quickly on clemency is a great idea, but “100 women in 100 days” is nothing but a political stunt. The greatest danger in a proposal like this one is that if Biden knuckles under, 100 inmates get clemency, and then the Administration will check clemency off its “to-do” list, moving on to the next domestic issue. The problem with the clemency system – beyond the obvious, that 14,000 petitions are pending, many for years – is that the arbitrariness and bias of a system that relies on mercy from the very people who make their careers locking up defendants has a systemic infirmity that must be addressed. A political stunt that relies on an alliterative label – ‘100 in 100…’, like there’s something significant about the base-10 number system – simply detracts from the serious work to be done while delivering commonsense mercy in a scattershot and ineffective way.

The well-meaning people behind this have little idea of the effect of their Lafayette Park theatre on the inmates. I have had several emails this week from women inmates informing me that a list of 100 inmates was handed to the President in the Oval Office, and that he was ready to act. They wondered if they were on the list. Oh, if life only imitated rumor…

Why not simply distribute 151,703 scratch-off cards to the BOP population, with only 100 winners among them? That approach would make as much sense, while adding a bit of drama and excitement to the event.

crackpowder160606Last Tuesday, Representatives Hakeem Jeffries (D-New York), Bobby Scott (D-Virginia), Kelly Armstrong (R-North Dakota), and Don Bacon (R-Nebraska) introduced the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act in the House. The bipartisan legislation would eliminate the federal crack and powder cocaine sentencing disparity and retroactively apply it to those already convicted or sentenced.

The measure is identical to the measure introduced in the Senate by Cory Booker (D-New Jersey) and Richard Durbin (D-Illinois) five weeks ago.

USA Today, ‘No justice in destroying lives’: Pressley, Bush call on Biden to grant clemency to 100 women in 100 days (March 12, 2021)

Vox, Biden’s secret weapon for criminal justice reform (March 1, 2021)

Atlanta Daily World, Congress Introduces Bill to Eliminate Sentencing Disparity Between Crack and Powder Cocaine (March 10, 2021)

– Thomas L. Root

Higher and Higher… – Update for December 8, 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.

BOP COVID CASES BREAKS 5,000 AS LEGISLATORS GRILL CARVAJAL

rocket-312767BOP inmate COVID-19 cases passed a grim milestone last Friday, rocketing past the 5,000 mark. That number jumped another 10% over the weekend. As of last night, the BOP had ended with

•     5,634 ill inmates (up 15% from the week before);

•    1,613 sick staff (up 12% from last week);

•    COVID in 128 BOP facilities; and

•    163 dead inmates.

The BOP has tested 57% of all inmates at least once, with the positivity rate climbing from 25% – where it has hovered for months – to over 32%.

To put this in perspective, one out of every five federal inmates who has ever had the virus has it right now.

BOPCOVID201208jpg

Two BOP facilities have more than 300 sick inmates, Loretto and Texarkana, three more with over 200 ill, andand another 16 with over 100 COVID cases. USP Tucson has 75 sick staffers, with Pollock in second place with 60 and Oklahoma FTC with 50.

Last Wednesday, BOP Director Michael Carvajal testified before the House Subcommittee on Crime, Terrorism, and Homeland Security. It wasn’t pretty. After he delivered his prepared statement – a BOP puff piece about how in response to COVID-19, the BOP had “implemented a decisive and comprehensive action plan to protect the health of the inmates in our custody, the staff, and the public, to the greatest extent possible, consistent with sound medical and corrections principles” and how the BOP’s “procedures have proven effective as this is evidenced by the steep decline in our inmate hospitalizations, inmates on ventilators and deaths” – the knives came out.

fired161227Subcommittee Chair Karen Bass (D-California) quoted a Dept of Justice Inspector General report that found up to six days elapsed before FCI Oakdale inmates who had been exposed or tested positive for COVID-19 were isolated, and wondered how that squared with the BOP’s representations. Carvajal insisted that the situation in Oakdale was not representative of BOP policies, and blamed the then-warden. “In a nutshell, we had some leadership issues there,” he said. “Our regional director had some concerns about the procedures not being enforced or followed. In essence, without getting into details, I removed the leadership.”

Carvajal pushed back at Subcommittee demands the BOP institute a blanket staff testing plan (arguably a good idea considering that 43% of all staff who have had COVID since March are sick right now). He argued that the BOP could not compel employee COVID tests. But a written statement filed with the Subcommittee by Shane Fausey, national president of the BOP employees’ unions, disputed that, complaining that despite unions’ urging, the BOP “has repeatedly refused” to offer voluntary coronavirus testing to staff members at the prison facility where they work. Instead, Fausey said, “employees who believe they were exposed or might be infected with the coronavirus must get tested on their own time and in their own communities.” For good measure, Fausey also blasted BOP and Marshals Service for transferring inmates without adequate quarantining, which he said has put “the health and safety of tens of thousands of federal correctional workers, their families, and their communities at risk.”

covidtest200420In a separate exchange with Representative Sheila Jackson Lee (D-Texas), the director said he could not force his employees to get tested for Covid-19, although the BOP waives insurance copays for those tests.

“I understand civil liberties, civil rights the Constitution, but you’re talking about individuals coming into contact with incarcerated persons who can’t walk away, who can’t get out,” Jackson Lee said. “And that means they are endangering themselves, their families at home.”

Rep. Hakeem Jeffries (D-New York) braced Carvajal about underutilization of compassionate releases. Before filing for a compassionate release, an inmate must first ask the BOP to bring the motion for him or her, a vestige of the procedure before the First Step Act broadened the law to let inmates bring their own motions. Jeffries noted that while about 2,000 such motions had been granted by courts, the BOP had approved only 11 requests when inmates first asked to the agency to do so. Jeffries asked Carvajal, “10,929 requests out of 10,940 requests were rejected, does that sound right?”

Carvajal said the BOP has been intentionally careful. Given public safety considerations, Carvajal said, the BOP’s approval rate of 0.1% makes sense: it is “not a process that should be rushed.” This suggests that the courts, with compassionate release approval rates that are 182 times higher than the agency, are profligate.

The day before the hearing, Government Executive magazine published a sobering piece in which BOP employees said that staffing shortages and COVID-19 are creating a crisis. “If not for COVID, we would still have augmentation but it wouldn’t be as crazy,” Joe Rojas, a union official. “It’s already a dangerous workplace with COVID and it’s made worse by understaffing.”

quit201208Several employees said they expect that attrition to accelerate in the coming months. Rojas said he and many others have stuck around in part due to a retention bonus the BOP offered to veteran workers in recent years. That incentive is disappearing next year, he said. A BOP spokesman said the Bureau is providing incentives “where appropriate” and taking other steps to boost recruiting. He noted the agency has hired 3,400 employees in 2020, a sharp uptick over recent years.

Already some of the prisons in the Southeast, Rojas said, are operating at 70% or less of their expected workforce level. “You can’t run a prison like that. The seams are going to burst,” he said. “I’m afraid.”

DOJ, Statement of Michael D. Carvajal, Director Federal Bureau Of Prisons (December 2, 2020)

Courthouse News Service, Officials Spar Over Covid Spread Through Prison System (December 2, 2020)

Statement of Shane Fausey, National President, Council of Prison Locals (December 2, 2020)

Government Executive, Federal Prison Employees Fear Staff Shortages and Mass Reassignments as COVID-19 Cases Spike (Dec 1)

– Thomas L. Root

House Subcommittee Holds Oversight Hearing on First Step, and Tales Abound – Update for October 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.

A TALE OF TWO BOPs

twocities191022At a House of Representatives Subcommittee on Crime, Terrorism and Homeland Security oversight hearing last Thursday on implementation of the First Step Act, it seemed at times that legislators were hearing about two different Bureaus of Prisons. One was staffed by dedicated professionals who were rapidly “developing guidance and policies to ensure appropriate implementation” of First Step. The other BOP was cutting halfway house, providing inadequate programs and “acting in ways that result in lengthier and less productive terms of incarceration despite the obvious will of Congress.”

Dr. Kathleen Hawk Sawyer, the veteran BOP hand brought back from retirement to take over the agency 12 weeks ago in the wake of the Jeffrey Epstein suicide fiasco, told the subcommittee that sentence reductions under the newly-retroactive Fair Sentencing Act has resulted in over 2,000 orders for release, with the release thus far of over 1,500 of those inmates. She told the Subcommittee that BOP “staff also immediately began the challenge of re-programming our Good Conduct Time (GCT) sentence computations to reflect the change. As a result, on July 19, 2019, when the GCT change took effect commensurate with the Attorney General’s release of the Risk and Needs Assessment System, the Bureau executed timely releases of over 3,000 inmates.”

This will come as surprising news to the thousands of people whose sentences have not yet had the revised GCT computations applied to their sentences.

She also reported that since First Step was signed into law, 95 inmates have received compassionate release (although she did not specify how many releasees were recommended by the BOP). She said the BOP has approved 328 inmates for the Elderly Offender Home Detention program, with 242 already on home detention and the balance awaiting placement.

wereonit191022Sawyer Hawk urged the Subcommittee to fund and approve expanded UNICOR purchasing approval, authorizing more agencies, nonprofits and governments to buy UNICOR products. She said UNICOR employment has fallen from 20,000 several decades ago to 11,000 now, but that expansion of the pool of eligible buyers in the First Step Act assured that the number of UNICOR inmate employees would increase.

Sawyer Hawk implied that UNICOR, GED, literacy and drug programs would be among the programs for which earned-time credit was given once the PATTERN risk and needs assessment system was implemented. Apparently, the independent review committee that developed PATTERN also “selected programs to designate as evidence-based recidivism-reduction programs and productive activities,” according to Review Committee member John P. Walters, but neither he nor any other government witness identified what the programs would be.

Sawyer Hawk testified that training of BOP staff is underway for application of PATTERN as well as a yet-undefined system of assessing an inmate’s needs for programming. The suggestion is that BOP staff will select the programs that an inmate can take for earned-time credit according to the individual needs of the inmate for such programming. Sawyer-Hawk said, “The Bureau already has in place a robust Needs Assessment system, and we are working with experts in the field and research consultants to further enhance it.”

Walters tried to assuage concerns about PATTERN, telling the Subcommittee that the commission is working on “somewhat substantial” changes aimed in particular at removing possible bias in the tool. He said the contractors who developed the PATTERN system have run 200 additional hours of analysis at the independent review commission’s direction with the hopes of weeding out bias. “Obviously we want the instrument to be valid, but we also want the instrument to capture real differences and not bias,” Walters said.

A much less rosy picture was painted by New York City Federal Defender executive director David E. Patton and Professor Melissa Hamilton. Patton pointed out that current DOJ data show 49% of federal inmates complete no programs, 82% of such inmates receive no technical/vocational courses or UNICOR employment, and 57% of federal inmates needing drug treatment receive none. “Relatedly,” Patton said, “we are deeply troubled that there is still no needs assessment as required under the FSA, and that the BOP does not expect one to even be available for testing until the second quarter of 2020.”

Hamilton complained that PATTERN was being developed in an opaque process, one in which routine requests for release of the underlying data – something the U.S. Sentencing Commission does as a matter of course – and Freedom of Information Act requests have been ignored. The Brennan Center for Justice “requested release of information on the BRAVO/BRAVO-R tools that the DOJ Report indicates are foundations for PATTERN,” Hamilton testified, “yet were rebuffed because of proprietary claims. This initial assertion of secrecy is deeply concerning.”

casemanagers191022Patton also questioned the BOP’s commitment to halfway house placement. The BOP said in a 2017 memorandum that “due to fiscal constraints,” the average length of halfway house stay was “likely to decline to about 120-125 days.” However, Patton asserted, “anecdotal information from prisons indicates that counsellors have been told to limit the amount of prerelease time in reentry centers to even less than 120 days. At one prison, individuals reported seeing a printed sign on the counsellor’s wall reading: ‘We will put you in for a maximum of 90 days of RRC time, but it will most likely be less. Yes we know what the Second Chance Act says’.”

Rep. David Cicilline (D-Rhode Island), pointedly asked Sawyer-Hawk why people close to release whose dates were advanced by the additional 7 days-a-year good time were not having halfway house dates changed accordingly. Sawyer Hawk expressed surprise, saying that this was not happening throughout the system, and she would look into whether it was happening in New England.

Subcommittee’s questions focused primarily on the heating crisis at MDC Brooklyn, the Epstein suicide at MDC New York, BOP staffing levels nationwide and the PATTERN programming. One noteworthy moment came at the beginning of questions from Rep. Hakeem Jeffries (D-New York). He read a statement from the family of Troy Pine, the man Noel Francisco allegedly murdered in Providence, Rhode Island, several weeks ago. Francisco was released early because of the retroactive Fair Sentencing Act, creating a firestorm of criticism over the First Step Act.

Pine’s nephew urged people not to blame Trump or the First Step Act. “Anyone who speaks my uncle’s name, please speak it in a way that will draw people together, and bring help to people in these communities, including human beings who have been locked up for too long,” Jeffries read from the statement.

A Washington Times column on Saturday agreed: “The First Step Act is working. According to the FBI, the violent crime rate is at its second-lowest point since 1991. As previously stated, thousands of people have returned home as a result of First Step, more than 1,700 releases as a result of the crack cocaine/powdered cocaine disparity provision alone. And this case is the first reported incident of a First Step Act recipient re-committing a serious crime.

“But even one tragedy is one too many, and we still have much work to do. Our system is still broken, and we should focus on reforms that offer second chances, but more importantly, keep us safe.”

House of Representatives Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, Oversight Hearing on the Federal Bureau of Prisons and Implementation of the First Step Act (Oct. 17)

Washington Times, First Step Act is working, but the criminal justice system is still broken (Oct. 19)

Providence Journal, Nephew of Providence murder victim: Don’t blame First Step Act (Oct 18)

– Thomas L. Root

First Step 2.0 Already Being Planned – Update for January 30, 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.

NEXT STEP ACT ALREADY IN WORKS

The bipartisan team that rallied House support for the First Step Act is drafting new legislation to clean up the existing criminal records of nonviolent drug offenders, a centerpiece of their efforts to pass further reforms.

Reps. Hakeem Jeffries (D-New York) and Douglas Collins (R-Georgia) are looking at how to expunge the criminal records of people convicted of drug crimes before minimum sentencing requirements were reduced, to restore their eligibility to apply for certain jobs. Nationally, one out of five jobs requires some kind of license, which excludes just about everyone with a prior felony. “’What is being contemplated is removing the stain that has been put on their life’s journey as a result of a nonviolent drug offense, often occurring at a very adolescent stage of their life,” Jeffries said.

jeffries-collinsA190130The bipartisan legislation could form the basis for what Collins said might be called a ”Next Step Act,” to follow up on the pair’s successful efforts to pass a First Step last year. Both lawmakers hope to continue their established partnership with President Donald Trump’s son in law and senior adviser Jared Kushner, with whom they worked on last year’s criminal justice reforms.

Jeffries said he also hopes to address marijuana as part of any future criminal justice package. “There’s a growing number of conservatives, libertarians and Republicans who are in agreement with Democrats, who believe that we should at least take a hard look at descheduling marijuana,” he said. “[It] shouldn’t actually be that controversial, and it’s consistent with Republican principles of states’ rights and federalism.”

Washington Post, Next step in criminal justice reform could target jobs for ex-convicts, marijuana law (Jan. 17, 2019)

Chicago Tribune, Bipartisan authors of federal sentencing reform have new goal (Jan. 23)

– Thomas L. Root