Tag Archives: klobuchar

Director Peters, It’s Not Like You Weren’t Warned – Update for September 15, 2023

Leave a comment

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

TOLD YOU SO

shipwreck230915When Bureau of Prisons Director Colette Peters appeared for her first oversight hearing with the Senate Committee on the Judiciary about 51 weeks ago, it was an hour and a half on the Love Boat. But it’s now clear after the beating she suffered at the Committee’s hands two days ago that her ship is taking on water and the pumps can’t keep up.

Last October, I cited the friendly advice Director Peters received from the Committee about questions from legislators. I wrote

Finally, something even Peters acknowledged to be a cautionary tale: Sens Grassley, Cotton and Jon Ossoff (D-GA) all complained to her that various letters and requests for information they have sent to the BOP have gone unanswered, sometimes for years. This was a failing that former BOP Director Carvajal was beaten up with during his tenure. Not answering the mail from pesky Senators and Representatives may seem like a small thing to BOP management – it certainly has gone on for years – but if Peters wants the Judiciary Committee lovefest to go on, she should not let her staff anger Congress over something so easily corrected. Carvajal was regularly lambasted for similar failings. Peters should profit from his example.

Alas, Director Peters does not appear to be a regular reader of this blog, because she chose not to profit. The results were predictable: When she sat in front of the Committee two days ago, Peters was lambasted by friend and foe alike for a continuation of the BOP’s sorry habit of secrecy. Written questions submitted by Committee members a year ago remain unanswered, and all she could offer the senators was a milquetoast explanation that those answers must go through a “review process” and that she was as frustrated as the Committee was.

C’mon, Colette. Who’s “reviewing” these questions, most of which call for a simple factual response? (Examples from Wednesday: How many males-turned-transgender-females have been placed in federal women’s prisons? How many COs are employed by the BOP?) Providing these answers is not rocket surgery. The numbers are the numbers. How much ‘review’ of the numbers is needed?

knifegunB170404The hearing was painful. Many of the senators seemed more concerned with scoring political points on crime and LGBTQ issues than about issues broadly important to the BOP. And Director Peters seemed woefully unprepared, relying on a series of “talking points” unresponsive to the questions she should have expected. It’s as if she brought a knife to a gunfight.

The Associated Press wrote that Peters

was scolded Wednesday by members of the Senate Judiciary Committee who say her lack of transparency is hampering their ability to help fix the agency, which has long been plagued by staffing shortages, chronic violence and other problems. Senators complained that Colette Peters appears to have reneged on promises she made when she took the job last year that she’d be candid and open with lawmakers, and that ‘the buck stops’ with her for turning the troubled agency around.

After an hour and a half of senatorial belly-aching about being ghosted by Director Peters, Sen. Richard Durbin (D-IL), chairman of the Committee and as much a fan of Director Peters as he was a nemesis to former Director Carvajal, admonished her, “Senators take it very personally when you don’t answer their questions. More than almost any other thing that I would recommend I’d make that a high priority.”

Committee questions careened from the sublime to the absurd. Durbin observed that the Committee largely agreed that the BOP “needs significantly more funding” for staffing and infrastructure needs, including a $2 billion maintenance backlog. Peters told the Committee the BOP was studying how to reduce reliance on restrictive housing – read “solitary confinement” – and studying how other prison systems handle the issue.

cotton171204She also reported that the BOP had increased new hires by 60% and reduced quitting by 20%. Nevertheless, the agency still only has 13,000 correctional officers where 20,000 are needed, and it still relies on “augmentation,” using non-COs to fill CO shifts. Sen. Tom Cotton (R-AR), a professional inmate-hater who wants to increase inmate populations while excoriating the BOP for being unable to manage the load with too little money and too few staff, complained that Peters had hired too few COs (the “meat eaters,” he called them) while bringing on too many non-COs (whom he derisively called “leaf eaters”).

Cotton invited Peters to accompany him on an inspection of FCC Forrest City, an invitation she accepted with a pained smile. Spending a day with Tom Cotton, the man who tried to blow up the First Step Act… almost as nice as a root canal without novacaine.

Other senators complained that the Mexican cartels might be obtaining blueprints for BOP facilities, that transgender females were being placed in BOP female facilities and sexually terrorizing female inmates (with very little said about BOP staff sexually terrorizing female inmates), and that the BOP decided that people on CARES Act home confinement were allowed to stay home (a decision made by the Dept of Justice, not the BOP).

Sen. Sheldon Whitehouse (D-RI) invented a new word: “recidivation.” Sen. Ted Cruz (R-TX) chastised Peters for not having the facts he wanted to hear at her fingertips. Sen. Lindsey Graham (R-SC) led a Republican charge against BOP transgender policy, with more than one senator suggesting that transgender inmates number in the thousands. He also became testy when Peters failed to provide specifics about how the BOP is combatting the use of contraband phones by inmates.

Sens. Amy Klobuchar (D-MN), Thom Tillis (R-NC) and Jon Ossoff (D-GA) asked pointed but thoughtful questions. Ossoff suggested what many have long believed, that the institution audits required by the Prison Rape Elimination Act are meaningless paper exercises. As for BOP staffing, Tillis candidly observed that hiring more COs “is our job as well as yours.”

Ossoff perhaps best summarized the flavor of the hearing when he warned Peters: “You’ve now been in the post for about a year and Congress expects results.”

Senate Committee on the Judiciary, Oversight of the Federal Bureau of Prisons (September 13, 2023)

Associated Press, Senators clash with US prisons chief over transparency, seek fixes for problem-plagued agency (September 13, 2023)

– Thomas L. Root

Trick or Treat – Update for October 28, 2022

Leave a comment

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

Today, a little early Halloween…

TREAT: SENATE BILL AIMED AT HELPING PREGNANT PRISONERS

treat221028Not that introduction of a bill this late in the Congressional season is much more than symbolism, but legislation introduced a few weeks ago by Sens Amy Klobuchar (D-MN) and Susan Collins R-ME) aims to improve care in federal prisons for pregnant and postpartum women and their babies.

The Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act (S.5027) would establish care standards for federal facilities across the country, requiring access to medical and mental health services, as well as education about parental rights and lactation.

The act would restrict when pregnant women can be placed in restrictive housing, ban the Bureau of Prisons and U.S. Marshal Service from placing pregnant women in solitary confinement during the third trimester, and require the BOP to evaluate pregnant women to determine if their pregnancy is high-risk.

Companion legislation in the House was introduced by Reps Karen Bass (D-CA) and Guy Reschenthaler (R-PA).

Sadly, the likelihood that this bill will be considered before the 117th Congress expires on January 2, 2023, is remote.

Gov’t Executive, Senate Bill Aims to Improve Care for Pregnant Women and Babies in Federal Prisons (October 18, 2022)

S. 5027, Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act

TRICK: IF AT FIRST YOU DON’T SUCCEED…

trick221028After Dan Kordash got caught at the airport by Customs and Border Protection officers after declaring he was carrying $12,000 in currency that turned out to be more like $33,000 (money which he forfeited), he was detained and questioned by CBP on at least two subsequent occasions. What’s worse, CBP officers told Dan that because of the money incident, he could count on always getting the third degree when he passed through the airport.

Dan filed Bivens claims against the CBP officers who detained him. The district court found that the officers had qualified immunity and dismissed the complaint. Not to be deterred, Dan then filed a Federal Tort Claims Act complaint for false imprisonment, battery, assault, intentional infliction of emotional distress, and negligence. The district court dismissed the new complaint as well for failure to state a claim, and Kordash appealed.

Last week, the 11th Circuit upheld the FTCA dismissal, holding that the doctrine of collateral estoppel meant that the Bivens suit determination that the officers acted lawfully in furtherance of federal policy should apply to the FTCA suit as well.

The 11th held that the issue in the FTCA case – whether the officers’ acts had a “nexus” with furthering federal policy and complied with federal law – was identical to the issue in the Bivens action. “In the Bivens action,” the Circuit said, “the district court determined for each incident when Kordash or Nilsen were stopped whether the officers acted within their discretionary authority and whether the detentions complied with federal law. Here, the same legal inquiries govern the application of the Supremacy Clause as a bar to liability for claims arising out of these incidents under the Federal Tort Claims Act.”

Because the issue met the test for issue preclusion, “Kordash is barred from relitigating these issues under the doctrine of collateral estoppel.”

Kordash v. United States, Case No. 21-12151, 2022 U.S.App. LEXIS 29420 (11th Cir., Oct. 21, 2022)

TREAT: MINNESOTA DRUG SALE STATUTES OVERBROAD

treatB221028The 8th Circuit ruled last week that because Minnesota’s definitions of “narcotic drug” and cocaine“ include drugs that the federal controlled-substance schedules do not, convictions under those statutes are not predicate “serious drug offense” under the Armed Career Criminal Act.

While the defendant was still convicted of a felon-in-possession count under 18 U.S.C. § 922(g)(1), his sentence exposure fell from 15 years to life all the way down to zero to 10 years.

United States v. Owen, Case No. 21-3870, 2022 U.S.App. LEXIS 28979 (8th Cir., Oct. 19, 2022)

– Thomas L. Root

Senate Judiciary Committee: A Win, A Tie and A Rain Delay – Update for May 28, 2021

Leave a comment

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

AN ONLY PARTLY SATISFYING DAY AT THE JUDICIARY COMMITTEE

The Senate Judiciary Committee considered three criminal justice reform bills yesterday, with results that were a little heartening, a little disheartening.
heartening210528The Committee approved the COVID-19 Safer Detention Act, S.312, 14-8. The bill now goes to the full Senate. The vote came despite the strenuous objections of Sen. Tom Cotton (R-Arkansas), who claimed that the bill would let dangerous criminals out on the street to violently accost fair maidens (or that’s how he sounded). Cotton didn’t cotton to approving something with “COVID-19” in the title, when BOP Director Michael Carvajal assured the Committee last month that by May 15th, every BOP inmate that wanted the vaccine would have received it.

That the BOP did not meet its deadline two weeks ago had little meaning. In fact, at 23 facilities – including some camps – fewer than 300 inmates had gotten the vaccine as of May 14. FPC Alderson, according to BOP records, had only 57 inmates vaccinated. While it’s possible that fewer than 10% of Alderson’s 622 inmates (all female) agreed to take the vaccine, but that’s pretty unlikely.

cotton171226Cotton tried to amend the bill so that it would apply only to inmates who had not been vaccinated for medical reasons approved by the BOP. That amendment failed.

An amendment that was approved, however, struck the bill’s proposed age reduction from 60 to 50. As amended, an elderly offender still must be 60, but he or she need only serve two-thirds of the statutory sentence (the total sentence minus good conduct time). It also adds judicial review for denial of elderly offender home detention, cuts the period for administrative exhaustion for compassionate release. Finally, during the pandemic, any defendant considered to be at a higher risk for severe illness from COVID–19, including because the defendant is 60 years of age or older or has an underlying medical condition, would by definition “an extraordinary and compelling reason” under 18 USC 3582(c)(1)(A)(i) for compassionate release.

Committee Chair Sen. Richard Durbin, D-Ill., who sponsored the proposed legislation, told the committee before the bill’s passage that the pandemic has shown that the BOP can’t be trusted to identify and release prisoners who are vulnerable to the coronavirus.

fail200526“The Bureau of Prisons failed,” Durbin said, noting that nearly 31,000 inmates requested compassionate release during the pandemic and the Bureau of Prisons approved only 36, fewer requests than it approved in 2019, before the pandemic. Durbin said that 35 federal inmates died while waiting for the BOP to rule on their requests.

The Committee began debating the Prohibiting Punishment of Acquitted Conduct Act of 2021 (S. 601). That bill would prohibit judges from considering conduct underlying an acquitted count in sentencing. Predictably, Cotton opposed that as well, but concerns were also expressed by Sen. John Cornyn (R-Texas) and Sheldon Whitehouse (D-Rhode Island).

Cornyn said that judges should be allowed to consider acquitted offenses in some cases, giving the example of a sexual offender who has repeatedly abused a victim and has some charges dropped because they are based on abuse that happened too long ago to be prosecuted. He apparently did not distinguish between dropped charges and charges a jury refused to convict on.

“There are circumstances that would endure to the benefit of a guilty criminal defendant and violate the rights of crime victims to be heard as provided by law,” Cornyn said.

Whitehouse, a former prosecutor, argued that judges should not have their hands tied at sentencing because some technical reason prevented conviction for conduct that clearly occurred. Sen. Amy Klobuchar (D-Minnesota), another former prosecutor, supported the measure.

Durbin decided to hold further consideration on S.601 to incorporate amendments.

disheartening210528The Committee adjourned for a Senate roll-call vote, and thus did not start discussing the First Step Implementation Act of 2021 (S. 1014), the star of the day’s hearing. This is the most consequential of pending bills, one which would grant judges the option to apply the 18 USC 3553(f) safety valve to a larger number of drug offenders and – most significant – make the reductions in mandatory minimums for drug and gun offenses granted in § 401 and 403 of the First Step Act retroactive.

The Committee should be taking up the First Step Implementation Act of 2021 soon. That is heartening.

Senate Committee on the Judiciary, Executive Business Meeting (May 27)

– Thomas L. Root

Good, Bad… But Not Indifferent – Update for May 27, 2021

Leave a comment

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

EITHER GOOD OR BAD

Maybe you’ve noticed our good-and-bad theme this week. Here are some shorts:

thumbsup210526Good: The DC Circuit last week joined seven other circuits in holding that Guideline 1B1.13 does not limit compassionate release motions when those motions are brought by prisoners instead of the BOP.

The Circuit just joins seven other circuits since last September to so hold.  Only the 11th Circuit disagrees.

United States v. Long, Case No 20-3064, 2021 U.S. App. LEXIS 14682 (DC Cir., May 18, 2021)

thumbsdown210526Bad: The two Federal Bureau of Prisons Correctional Officerss who were supposed to be watching Jeffrey Epstein, later charged for lying to investigators and phonying up records to hide the fact they were cruising the Web instead, last week entered guilty pleas in the U.S. District Court for the Southern District of New York under deferred prosecution deals that will cost them 100 hours of community service but no prison time.

Forbes, Federal Prison Guards Admit To Filing False Records During Jeffrey Epstein’s Suicide (May 21, 2021)

thumbsup210526Good: Senators Amy Klobuchar (D-Minnesota and John Cornyn (R-Texas), and House Reps. Karen Bass (D-California) and Guy Reschenthaler (R-Pennsylvania) introduced the One Stop Shop Community Reentry Program Act last week, a bill that would set up reentry centers to help coordinate access to job training, medical and mental health services, and financial counseling. The centers would also help individuals land jobs, gain job-skill training, obtain driver’s licenses, fill out college and student loan applications and receive financial counseling.

The bill passed the House in the last session of Congress, but never came to a vote in the Senate.

NPR, Congress Wants To Set Up One-Stop Shops To Help Ex-Inmates Stay Out Of Prison (May 20, 2021)

thumbsdown210526Bad:  Dr. Homer Venters, an epidemiologist tasked by a federal court with inspecting FCC Lompoc reported last week that the facility has “an alarmingly low vaccination acceptance rate among the inmate population,” due to prison staff neglecting to address inmates’ “very valid and predictable concerns” about the effects the vaccine might have on their underlying health conditions.

Rather than address inmate fears, Venters said, prison staff dismissively told the inmates to either “take the vaccine or sign a refusal form.” He reported to the Court that “many of the people who reported refusing the vaccine told me they were willing to take it but simply had questions about their own health status.”

“The approach of BOP Lompoc not only fails to engage with patients; it has a paradoxical effect of creating a pool of extremely high-risk unvaccinated patients,” he wrote. “In other detention settings I have worked in, a COVID-19 refusal by a high-risk patient would result in a prompt session with a physician or mid-level provider because the consequences of infection are so grave.”

Santa Barbara Independent, Doctor ‘Extremely Concerned’ About Low Vaccination Rate Among Lompoc Prisoners (May 20)

– Thomas L. Root