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Senate Unanimously Passes Prison Oversight Bill – Update for July 11, 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.

We thoroughly enjoyed our week off (our first in several years). Now, we’re back at it…

“ACCOUNTABILITY, IF YOU CAN KEEP IT”

adultsupervision240711The Senate passed legislation yesterday to bring adult oversight to what the Associated Press calls “the crisis-plagued” Federal Bureau of Prisons.

The Federal Prison Oversight Act (S. 1401), sponsored by Sens. Jon Ossoff (D.GA), Mike Braun (R-IN), Richard Durbin (D-IL), Shelley Caputo (R-WV), Joe Manchin (D-WV) and Tim Kaine (D-VA), sailed through the Senate on a unanimous vote.

The House of Representatives passed the same legislation as H.R. 3019 last May by a lopsided 392-2 vote. The bill now goes to President Joe Biden for signature.

The bill provides for the appointment of an ombudsman within the Dept of Justice who will investigate the health, safety, welfare, and rights of incarcerated people and staff. The ombudsman would establish a secure hotline and online form for family members, friends, and representatives of incarcerated people to submit complaints and inquiries. The measure prohibits BOP retaliation against those who complain or institute any investigation or inspection under this bill.

inspector240711FPOA also requires the DOJ Inspector General to conduct risk-based inspections of all 122 federal prisons, identify deficiencies, recommend changes to address shortcomings and assign each facility a risk score. Higher-risk facilities would then receive more frequent inspections. The IG must report its findings and recommendations to Congress and the public, and the BOP will be required to respond to inspection reports with a corrective action plan within 60 days.

The Associated Press — whose reporters Michael Balsamo and Michael Sisak deserve kudos for their relentless reporting on BOP peccadillos — said that the bill comes “in the wake of rampant sexual abuse and other criminal misconduct by staff, chronic understaffing, escapes and high-profile [inmate] deaths.”

Ossoff, Durbin, and Braun launched the Senate Bipartisan Prison Policy Working Group in February 2022. That group’s efforts resulted in the bill’s passage in the Senate. Reps Kelly Armstrong (R-ND) and Lucy McBath (D-GA) backed the House version of the bill.

“We applaud today’s actions by the Senate in passing this landmark bill, which paves the way to ensuring conditions in prisons are safer and more humane for staff and incarcerated people alike,” Heather Rice-Minus, president and CEO of Prison Fellowship, said in a statement. Prison Fellowship, a Christian nonprofit serving currently and formerly incarcerated people and their families, blitzed Capitol Hill three weeks ago with a “Day of Action,” during which over 40 Prison Fellowship employees, most of which were formerly incarcerated, visited 29 congressional offices to urge passage of FPOA.

Benjamin Franklin famously answered a question posed to him by Elizabeth Willing Powel – who asked him after the Constitutional Convention in 1789 whether the document delivered a republic or a monarchy – with the response, “A republic, if you can keep it.”

The FPOA establishes within the DOJ a mechanism intended to make the BOP accountable for its management of the custody of 158,646 inmates. True, under Director Colette Peters, we eschew “inmate” for the “woker” term “Adult in Custody.”

BOPsexharassment191209Catchy name (and we all love acronyms). However, those AICs continue to suffer sexual abuse, harassment, gross mistreatment, and denial of their statutory right to release and placement in community programs. It brings to mind a pseudo-Franklin quip (that is actually just a line in the Broadway plan-turned-movie musical “1776”): It “is like calling an ox a bull. He’s thankful for the honor, but he’d much rather have restored what’s rightfully his.”

Calling inmates “AICs” so far has been both the most visible and the most hollow change ordered by Director Peters. It has not moved the needle on the treatment of the AICs (although the female inmates being bussed from FCI Dublin would probably have preferred being called “AICs” to being called “bitches.”

Congress may figure that FPOA solves its federal prison problem, but asking the DOJ – the same folks who have permitted the situation at its component agency BOP to fester and continue to impede judicial efforts to address BOP misconduct – to exercise “oversight” hardly ensures accountability.

We now may have BOP accountability. If we can keep it.

Associated Press, Congress OKs bill overhauling oversight of troubled federal Bureau of Prisons (July 10, 2024)

Federal Prison Oversight Act (S.1401)

Sen Jon Ossoff, Senate Passes Sens. Ossoff, Braun, & Durbin, Rep. McBath & Armstrong’s Bipartisan Federal Prison Oversight Act (July 10, 2024)

Federal Prison Oversight Act (HR 3019)

Prison Fellowship, Prison Fellowship Applauds U.S. Senate for Passing the Federal Prison Oversight Act (July 10, 2024)

– Thomas L. Root

Now’s Your Chance, Colette – Update for September 18, 2023

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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.

REDEMPTION FOR COLETTE PETERS IS AT HAND

kumbaya221003On Friday, I reported on last week’s furball at the Senate Judiciary Committee oversight committee hearing, at which Bureau of Prisons Director Colette Peters was soundly thrashed by senator after senator about her agency’s poor correspondence record when it comes to responding to Congressional inquiries.

Specifically, after being warned last fall (during an otherwise kumbaya hearing welcoming Peters as the new director after the unlamented departure of Michael Carvajal) that various letters and requests for information the Senate had sent to the BOP over the previous years had gone unanswered, Colette has let another year’s worth of Senate interrogatories pile up. Her excuse that answers to senators’ letters had to go through a “review process” was as lame as it sounded.

Committee chairman Sen Richard Durbin (D-IL) ended the contentious session with some good advice for Peters: “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.” She promised to do better, albeit in a fuzzy way that promised no hard deadlines.

mail210312Lucky for Peters, her chance to turn over a new leaf on responding to Senate concerns has already arrived. Last Tuesday, Sens Durbin, Charles Grassley (R-IA), Joe Manchin (D-WV) and Shelley Moore Capito (R-WV) wrote a letter to Peters “regarding allegations of serious misconduct” occurring at FCC Hazelton. The letter asked that DOJ and the BOP “immediately investigate disturbing whistleblower reports of abusive treatment of incarcerated individuals and other employee misconduct… These reports, combined with public reporting on FCC Hazelton’s dire staffing shortages and proliferation of weapons contraband, paint a grim picture of the institution’s inability to ensure a safe environment for those in BOP custody and employees alike.”

hazelton181106The problems at “Misery  Mountain” are nothing new.  The letter to Peters, however, is quite detailed, alleging that:

  • Hazelton staff released the wrong incarcerated individual from the facility after failing to properly identify the correct individual scheduled for release.
  • A group of inmates escaped from the prison camp and supervisory staff attempted to cover it up.
  • Supervisory Hazelton staff falsified documents, encouraged inmate abuse, and covered up alleged abuse and escapes of incarcerated individuals. The falsified documents include medical assessments, incident reports, duty rosters, and time and attendance sheets, along with requests to tamper with corresponding security cameras to cover up inmate escapes. The employees engaged in these practices have not been disciplined, and, in some cases, received promotions, despite open investigations into their misconduct.
  • A staff member punched a prisoner on camera.
  • Staff members use restrictive housing punitively against prisoners and engage in a pattern of physical abuse of inmates in the SHU.
  • Staff repeatedly use racial slurs against other staff members and prisoners.
  • Staff urinated on prisoner property.
  • Staff has forced prisoners to urinate and defecate on themselves as a condition of being released from restrictive custody.
  • Staff assaulted a prisoner, breaking his ribs.
  • Staff beat a SHU prisoner so severely that he had a seizure and had to be hospitalized.
  • Staff shreds personal inmate mail and failing to provide inmates access to their mail. 
  • The existence of an internally organized group comprised of staff at various levels within FCC Hazelton facilities that are partially responsible for the misconduct at the facility, known as the “Good Ol’ Boys Club”. 

The letter asks for information regarding the investigation of abuse by no later than October 3rd, including a list of abuse allegations at FCC Hazelton since 2013, a list of FCC Hazelton staff members who have been promoted or transferred while under investigation for inmate abuse, copies of all documents regarding crimes and transfers of BOP staff who have been charged with a crime at FCC since 2013, and the number of employees who continued to work with inmates while under investigation for inmate abuse

WBOY-TV in Fairmont reported that it asked the BOP for a statement and got this:

The Federal Bureau of Prisons responds directly to Members of Congress and their staff.  Out of respect and deference to Members, we do not share our Congressional correspondence with the media. 

Unbelievable220811That’s rich. According to the Judiciary Committee, the BOP doesn’t even share its Congressional correspondence with Congress.

One would think that the BOP cannot ignore this letter.  But then, no one’s lost money yet betting against Bureau of Prisons transparency.

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)

Letter to Merrick Garland and Colette Peters from Sen Richard Durbin et al. (September 12, 2023)

WBOY-TV, Whistleblower alleges staff are covering up abuse, escapes at FCC Hazelton (September 13, 2023)

– Thomas L. Root

A Tale of Two Bills (Part 2 – Up in Smoke) – Update for April 12, 2022

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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.

… MARIJUANA REFORM IS SUFFERING FROM TOO MUCH INTEREST

Politico was just one of several news outlets last week admitting that the MORE Act – far-reaching marijuana legalization bill passed two weeks ago by the House – still has “no real path to President Joe Biden’s desk.”

MORE’s passage marks the second time in less than two years that the House passed legislation to decriminalize pot, but the Democrats have “passed a party-line bill that has little chance of getting the necessary Republican support to pass the Senate.”

senatemarijuana220412“You’re not going to be able to get Republicans on board… the way that the MORE Act is done,” said Rep Nancy Mace (R-SC), who introduced a bill last year that decriminalizes marijuana and expunges some records but does not create federal grant programs. “You’ve got to have Republicans on board if we’re going to have any chance of getting it done in the Senate.”

Ironically, Republican complaints about MORE relate to federal funding of pot programs. No one is critical of the expungement and retroactive sentencing reforms.

The Senate — where Senate Majority Leader Chuck Schumer (D-NY), Sen. Cory Booker (D-NJ) and Sen. Ron Wyden (D-OR), are working on the Cannabis Administration and Opportunity Act — is even tougher ground for weed.

Booker and Schumer have refused to even hold a hearing on a cannabis banking bill the House has approved six times because it does not address criminal justice reform. But Democrats’ pursuit of a perfect comprehensive pot bill worries some lawmakers and advocates, who do not see a clear path forward for sweeping drug policy changes under Republican leadership in either chamber — especially the Senate. Given that Democrats may not control both houses of Congress next year, the window for federal cannabis policy port reform may not be open much longer.

MORE faces significant hurdles in the Senate. First, not all Democrats are in favor of marijuana legalization; conservative Democrats, represented by a few senators such as Sen Joseph Manchin (WV), stand in the way of reform. In order to pass the Senate, the bill needs to secure 60 votes to be safe from a Republican filibuster. Because not all Democrats are expected to vote in favor of the MORE Act, ensuring its success would require more than 10 Republicans voting in favor of it.

marijuana220412But the future of marijuana legalization does not rely solely on the success of the MORE Act. Schumer intends to introduce  CAOA later this month. If CAOA gets a vote in the Senate, it will be the first time in 50 years that the Senate voted on cannabis reform. The downside, according to the National Law Review, is that “the competing interests of these two bills could create an unnecessary deadlock, potentially leaving the cannabis industry with another year of failed reforms.”

MORE Act (H.R. 3617)

Politico, House passes marijuana legalization bill (again), but with no clear path forward (April 1, 2022)

Shepherd’s, Marijuana Legalization Act Passes the House, Likely to Die in the Senate (April 7, 2022)

National Law Review, The House Does It Again: MORE Act Ready for Senate Action (April 4, 2022)

Cannabis Administration and Opportunity Act (not yet introduced)

– Thomas L. Root

House Passes Marijuana Decriminalization – Update for April 4, 2022

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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 APPROVES MARIJUANA REFORM
Who needs "March Madness" when you have "reefer madness."
Who needs “March Madness” when you have “reefer madness?”

The House of Representatives on Friday passed the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act (H.R. 3617) – sponsored by House Judiciary Chairman Jerrold Nadler (D-NY) — by a 220-204 margin. The vote fell largely along party lines with only three Republicans supporting the measure and two Democrats opposing it.

H.R. 3617 decriminalizes marijuana, expunges the records of people convicted of federal cannabis offenses, and requires resentencing in some cases. It provides that any marijuana conviction will be vacated, and existing sentences modified to eliminate marijuana amounts from drug calculations. The only catch is that any sentence including a Guidelines § 3B1.1 aggravating role will be ineligible.

The Congressional Budget Office estimates that thousands of current inmates would be released early. In the future, decriminalization also would reduce the number of people in federal prisons and the amount of time they serve. CBO estimates that over the 2022-2031 period, H.R. 3617 would reduce time served by current and future inmates by 37,000 person-years.

CBO’s analysis accounts for time served by offenders convicted of marijuana-only crimes and time served by people convicted of offenses in addition to a pot offense. The analysis says the MORE Act would reduce the Federal Bureau of Prisons’ costs by reducing both the number of prisoners and the amount of time they serve. CBO estimates that the provision would result in net savings of about $800 million over the 2022-2031 period.

marijuana160818Passage of MORE is one of several pieces of legislation that underlines the shift in Congress’s attitude — a change that has come about in part because of the way past drug laws have disproportionately hit minority communities. “This Congress represents a sea change,” said Rep. Earl Blumenauer (D-Oregon), a co-chair of the Congressional Cannabis Caucus.

The House passed the EQUAL Act last fall by a margin of 361-66. EQUAL eliminates the federal disparity in prison sentences for crack and powder cocaine offenses. A majority of the House GOP overall joined all Democrats in support.

Recently, Sen Richard Burr (North Carolina) became the 10th Senate Republican to back EQUAL, paving the way for likely passage in the upper chamber. House Majority Leader Chuck Schumer (D-NY) and Sen Joe Manchin (D-WV), a frequent centrist swing vote, also signed on to the bill in recent days.

“I think they understand we’ve got to take a more innovative path. We need to understand addiction. We can’t just incarcerate our way out of these problems. And we sure can’t continue to turn a blind eye to an egregious injustice, like this crack-powder disparity,” said Holly Harris, president of the Justice Action Network.

The lower price of crack cocaine means that historically it has been more easily accessible to people in marginalized lower-income communities, compared to powder cocaine more prevalent in the suburbs.

marijuana-dc211104A nearly identical version of the MORE Act passed in 2020, but it stalled in the Senate. It passed through the sponsor’s panel again this session in September. Now the action moves to the Senate, where leadership is separately preparing to introduce a legalization bill. It remains unclear whether MORE will receive a Senate vote. The White House has not yet issued a statement on whether President Biden supports the legislation. A group of Senate Democrats, including Majority Leader Charles E. Schumer (N.Y.), Sen Cory Booker (N.J.) and Sen Ron Wyden (Oregon), is expected to release draft marijuana legislation later this month.

“We’ve been here before,” Nadler said during a press briefing following the vote on Friday. “Unfortunately, the Senate failed to act. Sometimes I think we’d be better off if we didn’t have a Senate.”

Marijuana Moment, House Approves Federal Marijuana Legalization Bill For Second Time In History (April 1, 2022)

Congressional Budget Office, Estimated Changes in Direct Spending and Revenues Under H.R. 3617, the MORE Act (March 28, 2022)

The Hill, House poised to pass bill legalizing marijuana (March 28, 2022)

H.R. 3617, MORE Act

Marijuana Moment, Lawmakers And Organizations React To Federal Marijuana Legalization Bill’s House Passage (April 1, 2022)

Washington Post, House passes bill decriminalizing marijuana; Senate fortunes unclear (April 1, 2022)

– Thomas L. Root