Tag Archives: myth

November 1st Promises to be a Quiet Day – Update For August 16, 2024

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

MYTHBUSTERS

I might fairly be accused of trotting out the old “Mythbusters” trope every few months or so when I have nothing else to write about. But it’s not so.

mythbusters240816A loyal reader, himself a skilled jailhouse lawyer, urged me several months ago to revisit some of inmates’ most cherished rumors and myths. He was feeling a little beaten down by well-intended questions about how the Loper Bright Enterprises v. Raimondo decision invalidating the Chevron deference doctrine must mean that people with medium and high recidivism scores will now be able to earn First Step Act credits. (Hint: Loper Bright will affect FSA credits not at all).

Others are demanding to know how President Joe Biden’s signing of H.R. 3019 into law would do the same.

It has been a busy summer, however, and although I am getting the usual number of emails asking why the BOP won’t renew the elderly offender home detention program and when the new meth law takes effect, it took this email yesterday to force my hand:

PATRICIA PRISONER on 8/15/2024 at 10:32:58 AM wrote

i have a question concerning the FSA..IN NOVEMBER WHEN THE LAWS COME INTO EFFECT..WILL THE PPL WITH HIGH OR MEDIUM RECIDIVISM BE ABLE TO USE THEIR TIME CREDITS??DO ANYTHING CHANGE FOR THOSE WHO HAVE PROGRAMED BUT WONT BE ABLE TO CHANGE THEIR STATUS TO A LOW???

Aarrgh! Another FSA credit question.

So here we go, by the numbers:

(1)    What will happen on November 1st?

On November 1st, two things will happen. First, Sentencing Guidelines amendments proposed last spring will go into effect, unless Congress blocks them (which it will not).

nothinghere190906The second is that BOP Director Colette Peters will ride up to the front gate of every BOP institution and give one lucky inmate a ride home on the back of her BOP Central Office unicorn.

Only one of the foregoing is true. And it ain’t the unicorn.

Unfortunately, the traditional November 1st date for the effectiveness of sentencing guidelines amendments has attained an almost mythical status on the inmate grapevine commonly known as “inmate.com.” But let’s remember this (covered in high school government class, probably on a day you skipped): The sentencing guidelines, like all government regulations, are NOT laws. Guidelines are written by the Sentencing Commission pursuant to authority granted by Congress. They are advisory only. A judge does not have to follow them. And this year, not a single Guidelines amendment will retroactively apply to people already sentenced. So, the amendments going into effect on November 1 have absolutely no effect on federal prisoners.

Congress has not passed any changes to the federal criminal laws this year. With only about 35 more days of legislative sessions this year for the House and 39 for the Senate (and with elections for all representatives and one-third of the senators), there is no chance that Congress will do anything to benefit federal prisoners.

The misperception that crime is rising is one of the bogeymen of this election cycle. No legislator’s going to vote for something that may benefit maybe 50,000 federal prisoners but gives his or her opponent an opening to argue that the incumbent voted to let dangerous criminals go free. As the politicians say, it’s bad optics.

(2) The BOP is not arbitrarily denying FSA credits to high and medium recidivism inmates.

Under 18 USC 3624(g)(1), in order to use FSA credits, a prisoner must have a “minimum” or “low” recidivism risk or “ha[ve] shown through the periodic risk reassessments a demonstrated recidivism risk reduction.” It is possible for a medium or high recidivism inmate to earn the right to spend FSA credits, but the statute (18 USC 3624(g)(1)(D)(ii)) is very specific about how difficult earning such a right would be.

recidivism240408The important point is that any changes to the FSA credit program – that lets prisoners earn credits to shorten sentences and permit more halfway house/home confinement – that would permit people with high and medium recidivism scores to use their credits, both the House and the Senate would have to pass an amended First Step Act law and the President would have to sign it. It simply is not going to happen this year.

And while we’re on it, why won’t the BOP let people with 18 USC § 924(c) gun charges have FSA credits? Simply enough, it’s because Congress deliberately excluded § 924(c) convictions from eligibility. The BOP’s got no power to change that.

(3) H.R. 3019 was indeed signed by the President, but it is the Federal Prison Oversight Act and has nothing to do with FSA credits.

In the 5½ years since the First Step Act was passed, no one has mounted any serious effort to change the FSA credits. Congress seems content that 63 different categories of offenses (comprising about half of all federal inmates) remain ineligible for FSA credits.

The FPOA is legislation that holds great promise for increasing BOP accountability, but it has nothing to do with the First Step Act in general or FSA credits in particular.

(4) Elderly Offender Home Detention Program has come and gone.

I still get complaints that the BOP is denying people who are 60 years old home confinement at their two-thirds date.

Of course it is. The two-thirds home confinement for 60+ people was the Elderly Offender Home Detention Program, authorized by the First Step Act. It was a pilot program, and was authorized to run until September 30, 2023. When it expired, I wrote about it.

The important point is that Congress set the expiration date. The BOP has no right to waive the expiration date or to extend it. It’s up to Congress, and Congress hasn’t done a thing about it.

(5) When does the new meth law go into effect?

meth240618What new meth law? About 18 months ago, a single district court in Mississippi ruled that the Guidelines enhancement for methamphetamine purity should not be applied because these days, just about all meth is high purity. The judge in question, however, was Carleton Reeves, who happens to be chairman of the Sentencing Commission, making the holding kind of a big deal.

The Guidelines enhancement is based on 21 USC § 841(b)(1)(A)(viii), which sets differing levels for pure meth and a “mixture… containing a detectable amount” of meth. Last June, the Commission released a study showing that meth purity is no longer a reasonable metric for enhancement. The Commission may yet take up the enhancement, although it has not yet committed to do so. However, no real change can be effected until Congress changes the law. Congress has given no indication it is interested in doing so.

(6)    A Basic Government lesson

We should all understand that a “congress” runs for two years. We are in the 118th Congress right now. It ends on January 2, 2025, The 119th Congress begins on January 3, 2025, and ends on January 3, 2027.

When a Congress ends, any bill that is pending but not passed disappears. The 119th Congress starts with a clean slate. This means that any bill currently pending (like marijuana reform, the EQUAL Act, First Step Act changes) will die.

Whether any criminal justice reform legislation makes it through the 119th Congress has a lot to do with who controls the House and Senate and who will be sitting in the White House. If one party ends up controlling all of it (especially the Democrats), some of what has been stalled – such as the Cannabis Administration and Opportunity Act and EQUAL Act — may have a real shot.

– Thomas L. Root

Will Biden and the Easter Bunny Let Everyone Go Home? – Update for November 29, 2021

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

MYTHBUSTERS

Cake201130Today, the LISA Newsletter began its 7th year of weekly publishing for federal inmates. Our first newsletter – sent on Sunday, November 29, 2015 – went to 13 inmates. Readership has grown a little since then: this week’s newsletter was sent last night to over 8,000 subscribers, both in and out of prison.

At the same time, we have made over 1,125 posts, all of which – thanks to the miracle of the Internet – are available on this site.

To celebrate, I’m going to take today to bust some of the best inmate myths coming into my e-mailbag:

questionmark211129

Question: Have you heard this 65% rumor that’s going around that Biden has supposedly signed into law and goes into effect at the beginning of next year? ~ JH

Answer: No, JH, not true. The “65% law” rumor has been around for as long as there have been sentencing guidelines. Before 1988, courts sentenced defendants to very general terms of years, often five years or 10 years. How long you actually served was up to the parole board. Under the parole board guidelines, you would do at least 1/3 but not more than 2/3 of your sentence. The exact point at which you would be paroled depended on the parole board guidelines, which were sort of like the current sentencing guidelines, although not nearly as detailed.

easterbunny210916The 65% rumor may be based on the maximum amount of time (2/3) one would serve under an “old law” sentence. Starting in 2003, Congresswoman Sheila Jackson Lee (D-Texas) introduced a bill at the beginning of each Congress to release certain federal inmates at 2/3 of their sentence. The bill would always be referred to the House Judiciary Committee, where it would die without ever being considered.

People who talk about how Congress should “bring back parole” suffer from a dangerous form of amnesia. The parole board was arbitrary and mean-spirited, providing minimal due process protections that make Guidelines sentencing look fair and loving by comparison. Currently, there is no “65% law” bill pending in Congress. Such a bill is unlikely ever to get serious consideration unless the guidelines are abandoned, and parole is reinstituted.

questionmark211129

Question: We have heard the Federal Bureau of Prison Nonviolence Reform Act of 2021 passed both House and Senate about 5 days ago; is this true? This says you must have attained age 45, no violent charges, and no discipline at the institution. I hope it has passed both as my Mother said but nobody else’s family can find where it has passed. Did Mother “jump the gun”? ~ NP

Answer: Sorry, NP, Mom “jumped the gun.” This rumor blends some provisions of a couple of old bills introduced five years ago that never went anywhere and died at the end of the two-year Congress in which they were proposed. There are no such bills pending now, let alone being reported by House or Senate committees. And nothing is named the “Federal Bureau of Prison Nonviolence Reform Act of 2021″ or anything close to it.

questionmark211129

Question: I heard that an inmate was granted compassionate release but the prison somehow canceled it. I do not have the case number, however, I can give you the particulars of the case. The case was in 2003, in Central Islip, New York, and the defendant, Samuel Torres, was sentenced to 30 years in prison for drugs, weapons, and arson. If you could see why the motion was granted but then from what I hear, canceled… ~ RM

compassionaterelease190517Answer: “Compassionate release” is the popular but misleading term for a sentence reduction under 18 USC § 3582(c)(1)(A)(i). It is a resentencing by the court. The BOP has no authority to “cancel” a sentence reduction by the court. The sentence is what the court says it is – not what the BOP may want it to be.

(By the way, the case you referred me to does not exist).

questionmark211129Questions: I’ve been hearing that Biden is talking about giving us inmates up to a year off for Covid. Is there any truth to that at all? ~ MS

Is there any truth to this gossip about people locked up during covid will get 10-18 months off their sentence?? ~ ML

Hello, have you heard anything about non-violent offenders getting an 18-month time cut for the pandemic? ~ AC

Answer: Biden has said nothing of the such. No one else has said anything of the such. The COVID-19 Safer Detention Act (S.312 and H.R. 3669), pending in both the House and Senate, have been favorably reported by the respective Judiciary Committees, but neither has come to a floor vote. Skopos Labs – which handicaps legislation – gives the bills only a 3% chance of passing.

elderly180517The bills change the Elderly Offender Home Detention (EOHD) program to make people 60 or older eligible when they have served 2/3 of their good-time adjusted sentence, not their total sentence. The bills also give people turned down for EOHD placement the right to ask a court for that placement instead, much like compassionate release works now, and requires during the pandemic that any inmate with a COVID risk factor be deemed to have an extraordinary and compelling reason for a sentence reduction under 18 USC 3582(c)(1)(A)(i). Finally, the bills cut the exhaustion waiting period from 30 to 10 days as long as the pandemic emergency lasts.

No one proposes cutting sentences across the board because of COVID.

questionmark211129Question: I have heard about a reform bill that is supposed to have a 2-point reduction for federal inmates and/or mandatory minimums going down. Please tell me there is truth to this.

Answer: Only sort of.  S.1014 – the First Step Implementation Act of 2021 – has been reported to the Senate floor by the Judiciary Committee. The bill would make the reductions in mandatory minimums for drug and gun offenses granted in § 401 and 403 of the First Step Act retroactive. This would let people with life or 20-year mandatory sentences under 21 USC § 841(b)(1)(A) move for a reduction of sentence, as well as people with stacked 18 USC § 924(c) sentences, seek reductions from their sentencing judges using the same mechanism as the crack defendants used under First Step Section 404.

Remember that a 2-point reduction in the Guidelines is made by the Sentencing Commission, not by statute, so such a change would come from the Sentencing Commission. The Sentencing Commission, now down to a single member, has not had a quorum to enable it to meet since First Step passed in 2018.

questionmark211129Question: When will the Senate vote on the EQUAL Act?

crackpowder160606Answer: The EQUAL Act, which reduces crack cocaine penalties to be the same as powder cocaine penalties, passed the House of Representatives on Sept 28. However, there is no requirement that the Senate act on a bill passed by the House at any certain time, or even at all.

The Senate only has 10 more work days left this year. With the battle over Biden’s $2 trillion Build Back Better bill, just passed by the House, now looming in the Senate, the chance any criminal justice bill will be voted on this year is highly remote.

S. 312 – COVID-19 Safer Detention Act
H.R. 3669 – COVID-19 Safer Detention Act
S.1014 – First Step Implementation Act of 2021
H.R. 1693 – EQUAL Act

– Thomas L. Root