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BOP’s Got Nowhere to Go But Up – Update for January 3, 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.

THE BOP’S NEW YEAR RESOLUTIONS

peters220929Director Colette Peters has been at the Bureau of Prisons now for five months. As she begins her first complete calendar year at the agency, she’s not lacking for material when she compiles a list of new year resolutions.

Starting my ninth year of writing about the BOP – and being an average joe who is happier suggesting resolutions to other people than I am adopting resolutions of my own – I have some suggestions for Director in the unlikely event her list is too short.

(1) Change the Culture: The BOP has nowhere to go but up. Last year, the Partnership for Public Service‘s 2021 rankings of the best places to work in the federal government ranked the BOP in 431st place. This was out of 432 agencies. The BOP ranked dead last in 8 of 15 categories, including “effective leadership,” “innovation” and “teamwork.”

BOPad230103(2) Hire people: Walter Pavlo observed last week that “hiring new staff in this environment is difficult.” National Council of Prison Locals president Shane Fousey called it, “a staffing crisis of epic proportions.” Staffing issues lead to inconsistent and nonexistent programming, poor healthcare, loss of opportunities for sentence credit and community confinement, and institutional safety issues.

Of course, you cannot hire the people you need to work at an agency that is feeding at the bottom of the federal employment hierarchy.  No leadership, no teamwork, no innovation… no employees.

Just last week, Pavlo wrote that an FCI Miami inmate died choking on his own blood while in a COVID quarantine. His cellmate (apparently, quarantine was in the SHU), pounded and screamed for help for 90 minutes before a CO – who was responsible for multiple housing units, came along for count. Kareen Troitino, the local CO union president, said of the incident, “As a cost savings initiative, the Agency is jeopardizing lives by forcing one officer to supervise two units. This loss of life would have never happened if we had one officer in each building as we had in the past.”

(3) Clean Up Internal Investigations: Last month, the Senate Permanent Committee on Investigations found that BOP employees had abused female prisoners in at least 19 of the 29 federal facilities over the past decade. In June 2021, the Dept of Justice revealed that as of 2018, inmates reported 27,826 allegations of sexual victimization, or a 15% increase from 2015. Of the 27,826 allegations, over half were staff-on-inmate sexual abuse. The BOP has over 8,000 internal affairs misconduct allegations that haven’t been investigated.

SIS230103The misconduct ranges from BOP leaks and lies that placed Whitey Bulger in general population at USP Hazelton (where he survived for under 12 hours) to ”corruption at the US Penitentiary Atlanta in Georgia to the Dept of Justice’s failure to count almost 1,000 deaths in custody across the country, to abusive and unnecessary gynecological procedures performed on women in Dept of Homeland Security custody,” according to Sen. Jon Ossoff (D-GA).

(4) Use the Tools Congress Gave You: Stephen Sady, Chief Deputy Federal Public Defender for the District of Oregon, recently wrote in the Federal Sentencing Reporter that the Sentencing Commission should fulfill its statutory obligation to make recommendations regarding correctional resources and programs. He told Walter Pavlo that “the BOP has failed to adequately implement critical legislation to improve the conditions of people in prison” and since the BOP hasn’t acted, the Sentencing Commission should.

The BOP could address staff shortages and morale problems by getting more people to home confinement, halfway house and early release with the need for USSC oversight, Pavlo also suggests the BOP could expand eligibility and availability of RDAP sentence reductions, “eliminate computation rules that create longer sentences… Implement broader statutory and guideline standards to file compassionate release motions any time extraordinary and compelling reasons exist… [and f]ully implement the First Step Act’s earned time credit program.’ Pavlo notes that “[n]o new legislation would be required for any of these reforms.”

nothingtosay230123(5) Practice Openness: There’s an old admonition about not picking a fight with someone who buys ink by the barrel. It’s not so much ink these days, but a blemish on Peters’s honeymoon as director is the BOP’s continued awkward of the Ft. Worth Star-Telegram’s questions about allegations of systemic abuse at the women’s FMC Carswell.

Although the Star-Telegram rated its reports of Carswell mismanagement and misconduct as one of its most important stories in 2022, the newspaper complained again this week that BOP “administrators have declined interview requests, given blanket statements in answer to questions and failed to provide detailed plans about how the Bureau of Prisons intends to address the problems.”

Associated Press, Biden signs bill forcing the federal Bureau of Prisons to fix outdated cameras (December 27, 2022)

Partnership for Public Service, 2021 Best Places to Work in the Federal Government rankings

Forbes, A Federal Public Defender Challenges U.S. Sentencing Commission To Help Fix The Bureau Of Prisons (December 28, 2022)

Forbes, Federal Inmate Dies Choking On His Own Blood While Locked In Cell At FCI Miami (December 29, 2022)

Amsterdam News, Senate committee finds widespread employee on inmate sex abuse in federal prisons (December 26, 2022)

Business Insider, Inside the federal West Virginia prison where gangster Whitey Bulger was beaten to death (December 31, 2022)

Ft Worth Star-Telegram, Fort Worth’s biggest stories of 2022: What will you remember most about this year? (December 31, 2022)

– Thomas L. Root

A Little Something from Santa – Update for December 17, 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.

STOCKING STUFFERS

Some odds and ends from last week…


free211217Free PACER?: The Senate Judiciary Committee on Thursday advanced a bipartisan bill to overhaul the PACER electronic court record system and make the downloading of filings free for the public. The Open Courts Act of 2021 will now go to the full Senate for its consideration, after the Committee adopted an amendment that provided for additional funding and addressed the judiciary’s concerns on technical issues.

The panel approved the measure on a voice vote without any recorded opposition. Similar legislation has been introduced in the House, which during the last Congress passed a version of the bill despite opposition from the judiciary over its costs. The House Judiciary Committee has yet to take up the latest measure.

S.2614, Open Courts Act of 2021

Reuters, Free PACER? Bill to end fees for online court records advances in Senate (December 9, 2021)

Marshals Detainees to USP Leavenworth: The United States Marshals Service will transfer inmates from CoreCivic’s Leavenworth Detention Center to the USP Leavenworth, according to a USMS spokeswoman.

The Marshals Service has contracted with CoreCivic in the past to house pretrial detainees, but the contract is not being renewed due to President Biden’s ban on use of private prisons. The contract expires at the end of the year.

Leavenworth Times, CoreCivic inmates to be transferred to USP (December  9, 2021)

The Court cares about you... but you still better file within 90 days.
The Court cares about you… but you still better file within 90 days.

Yes, SCOTUS is Back to Normal: A reader last week reported that some filers still are counting on the Supreme Court giving them 150 days to file for certiorari, a temporary measure enacted by COVID orders of March 19, 2020, and April 15, 2020. But on July 19, 2021, the Court announced that for any lower court judgment issued on that date or later, the time for filing would once again be 90 days.

This means that on this past Wednesday, December 15, 2021 – being 150 days from July 18 – is the last extended COVID deadline.

Supreme Court Order (July 19)

Fraud170406RDAP For Fun and Profit: Tony Tuam Pham, former managing partner of Michigan-based RDAP Law Consultants, LLC, was sentenced to 72 months last week for “coaching federal inmates and prospective inmates… how to lie to gain admission” into RDAP.

Tony pled guilty to claims that while he knew that many of his clients did not abuse alcohol or drugs and were ineligible for the RDAP, he coached them how to feign or exaggerate a drug or alcohol disorder anyway in order to lie their way into RDAP.

The US Attorney for Connecticut said Tony’s firm made over $2.6 million in client fees through the scheme.

US Attorney Press Release, Prison Consultant Sentenced to 6 Years for Defrauding BOP Substance Abuse Treatment Program (December 10, 2021)

– Thomas L. Root

“What Is It Exactly That You Want?” Courts Ask Defendants – Update for August 3, 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.

FUTILITY

futility180705Two decisions last week should serve as cautionary tales for people seeking a sentence break from the courts, without really being able to explain to the courts why they are seeking the break they want.

In the 7th Circuit, Mike Millis filed a 28 USC § 2241 petition for writ of habeas corpus, arguing that his career-offender Guidelines enhancement (USSG § 4B1.1) should not have been applied in his case. As a result of his 1994 crime spree, Mike was convicted of several robbery counts, which included two 18 USC § 924(c) counts for using a gun. The § 924(c) counts, of course, were stacked. When the dust settled, Mike’s sentencing range began at 562 months.

That was too much for his judge, who departed downward to a still-shocking 410 months.

In the intervening 26 years, Mike filed and lost a 28 USC § 2255 motion in his Eastern District of Kentucky home. But well after that, the 6th Circuit held in a different case that one of the prior convictions relied on to make Mike a Guidelines career offender – an Ohio aggravated assault conviction – could not be used as a basis for career offender. Because the change in the law did not open the door to a new § 2255 motion. But Mike relied on the § 2255(e) “saving clause,” which lets prisoners use a § 2241 motion where the § 2255 would be “inadequate or ineffective to test the legality of his detention.”

Last week, the 7th Circuit shot him down. One of the standards for being able to use the 28 USC § 2255(e) saving clause, the Circuit said, is that the prior conviction or sentence has to constitute a miscarriage of justice. Here, Mike’s sentence range had started at 567 months. But if he had not been a career offender, the Circuit said, his 410-month sentence would still have fallen within what his non-career sentencing range would have been.

miscarriage-of-justiceBecause of that, the sentence – although the career offender status was wrong – was not a miscarriage of justice. This made the § 2255(e) saving clause unavailable to Mike.

So what was Mike’s point? I am guessing that he was looking to get rid of the career-offender label, because he is or will soon seek to get his second § 924(c) conviction cut from 300 months to 60 months, which is all he could have gotten under the law since passage of the First Step Act made clear that the 300-month mandatory sentence only applies after a prior conviction for a § 924(c) offense. Knocking 240 months off his sentence would let Mike out after having only served 260-some months (21 years) in prison.

Talk about soft on crime!

Meanwhile, over in the 8th Circuit, Brett Corrigan got a mandatory-minimum sentence of 60 months in prison, based on quantity of drugs involved in his case. At sentencing, his district court gave him a 2-level enhancement under USSG § 2D1.1(b)(1) for possessing a dangerous weapon, which gave him an advisory sentencing range of 60 to 71 months in prison. The judge gave him 60 months, the bottom of the range, (which, incidentally, was his mandatory minimum sentence).

softoncrime190307That did not stop Brett, who appealed the 2-level enhancement to the Court of Appeals. Last week the 8th Circuit denied him any relief. “Nothing we do here will affect Corrigan’s sentence, meaning that we lack the ability to provide any effectual relief.,” the Circuit said. “Win or lose, it makes no difference—his sentence will remain 60 months because of the mandatory minimum. In jurisdictional terms, Corrigan lacks a cognizable interest in the outcome, which means that there is no longer a live case or controversy under Article III.”

So why bother appealing? I suspect what Brett was fighting for was to get the 2-level gun enhancement lifted, because the enhancement made him ineligible to take the Bureau of Prison’s Residential Drug Abuse Program. The RDAP would entitle him to another 12 months off his sentence under 18 USC § 3621(e)(2)(B), meaning that Brett very much had something at stake here. It’s just that the courts generally seem not to appreciate the adverse effects that enhancements like that – which often get added on the flimsiest of evidence – have on a defendant’s prison term.

Millis v. Segal, Case No. 20-1520, 2021 U.S. App. LEXIS 22349 (7th Cir., July 28, 2021)

United States v. Corrigan, Case No. 20-1682, 2021 U.S. App. LEXIS 22166 (8th Cir., July 27, 2021)

– Thomas L. Root

Playing the BOP for “Dopes” – Update for March 19, 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.

THREE CONSULTANTS INDICTED FOR ADVISING CLIENTS TO SCAM RDAP

Nothing new here: cheating to get into the Bureau of Prison’s Residential Drug Abuse Program and qualifying for 12 months off one’s federal prison sentence is as old as… well, as old as the RDAP program itself.

RhHqJ3fIt used to be easy. I knew a guy who had friends pose as substance abuse counselors in letters to the BOP in order to get him in to RDAP, back a decade ago.

A year ago, Queens, New York, lawyer Scott “Mighty Whitey” Brettschneider was charged federally with ginning up fake letters to get a client into RDAP (and later, with more serious offenses).  Now, three Michigan residents from an outfit called RDAP Consultants have been accused of telling clients over the past six years to falsely inform BOP officials that they had drug and alcohol problems, of showing them how to fake withdrawal symptoms, and of teaching them how to fraudulently obtain medication to treat withdrawal symptoms in order to show prescriptions to qualify for the program. The defendants allegedly advised clients to begin drinking alcohol daily before going to prison and to show up drunk.

The indictments were handed up at the end of January, but the story only broke last week.

The case has put a spotlight on the world of prison consulting, in which some ex-convicts and former prison employees charge thousands of dollars for their inside knowledge to help people prepare for life behind bars. Some consultants say there has been wrongdoing in the industry for decades, including encouraging clients to scam their way into the rehab program.

“It’s an unregulated industry, so something like this hopefully brings some attention to it,” said Dan Wise, a former inmate who completed the RDAP program and now runs Federal Prison Time Consulting in Spokane, Washington.

cheating190319The small industry now is “totally the Wild West,” Jack Donson, a retired BOP employee and president of My Federal Prison Consultants told AP.

Ohio State University law professor Doug Berman argued last week in his Sentencing Law and Policy blog that the indictments are a symptom of a larger problem:

“Federal prisoners have historically had precious few means to seek to earn reductions in their sentences. Thankfully, the First Step Act is a significant step toward treating this disease, as it provides an elaborate set of mechanisms for allow some prisoners to earn reductions through other rehabilitative efforts. But, critically, the First Step Act has a number of problematic exclusions and restrictions on which prisoners can earn reductions AND there is reason to worry that poor implementation of the First Step could lead to privileged prisoners again being better able to access programming and reduction that should be made properly available to as many prisoners as possible.”

Mr. Monopoly“Poor implementation” may be right. When the White House released budget priorities for 2020 last week, only $14 million was explicitly listed to finance First Step’s programs. It’s unclear if additional funding could come from savings that could result from the early release of eligible prisoners under the measure or from reducing expenses elsewhere within the Dept. of Justice, as some advocates for the programs hope. The White House did not respond to questions.

A.M. New York, Queens defense lawyer Scott Brettschneider charged with making false statements (Mar. 26. 2018)

Associated Press, Show up drunk: Indictments spotlight prison rehab scams
(Mar. 11, 2019)

Sentencing Law and Policy, New indictment exposes underbelly of federal RDAP program … and provides still more reason to be thankful for passage of FIRST STEP Act (Mar. 15)

The Marshall Project, First Step Act Comes Up Short in Trump’s 2020 Budget (Mar. 12)

– Thomas L. Root

We’ve Got the Shorts – Update for April 4, 2018

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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. Today, we’re posting some short features from Monday’s inmate newsletter.

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JUDGE POSNER OPENS LEGAL CENTER FOR PRO SE ASSISTANCE

Retired Judge Richard Posner of the 7th Circuit Court of Appeals last week announced the opening of the Posner Center of Justice for Pro Se’s, a continuation of his prior pro bono project. The Center’s vision is to assist pro se litigants  – which constitute up to 50% of federal courts’ workload – behind the scenes to help them to successfully represent themselves.

prose161209“Representing oneself in court is often the best way for a pro se to obtain justice,” Posner said in news release. “Unlike judges, juries tend to be impressed by a lone litigant standing up against a gaggle of lawyers.”

The center already has about 80 lawyers and non-lawyer advisors spread across 27 states, and expects eventually to have representatives in all 50 states as well as U.S. territories. All staff are currently unpaid—though the center says that could change.

“There are reliably believed to be at least a million pro se’s in the United States,” Posner said. “Many of those pro se’s, however, don’t realize they can obtain legal assistance. Therefore, I will continue to work to get the message out that our organization exists, and then try to assist as many deserving pro se’s as possible.”

Posner resigned from the 7th Circuit last fall after more than three decades on the bench. He said he left in part because of disagreements with colleagues over how the court handles pro se litigants, many of whom are prison inmates.

The Posner initiative does not yet have an Internet presence, and no contact information is available. But we’re looking…

Litigation Daily, Introducing The Posner Center of Justice for Pro Se’s (Mar. 28, 2018)

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HEY, KIDS, DON’T TRY THIS RDAP HACK AT HOME

Who wouldn’t like a year off his federal sentence? The Bureau of Prisons operates an intensive Residential Drug Abuse Program, as directed by Congress, which consists of nine months of classes and treatment while incarcerated and further treatment during the prisoner’s transition through halfway house. Inmates lucky enough to get into the program and to complete it may receive up to one year off their sentences.

lawyer15170317When RDAP started, every defense lawyer quickly learned that he or she should ask the judge to recommend RDAP for a defendant being sentenced. The judges were compliant, because, after all, the recommendation didn’t cost them anything. But the BOP wised up, and began requiring substantial evidence that the inmate had a substance abuse issue in the year prior to his or her arrest.

So getting into RDAP (and getting that year-off carrot the BOP dangles to encourage successful completion) can be tough. But, federal prosecutors say, not if you’re lawyer is hard-charging Brooklyn attorney Scott Brettschneider.

whitey180405As alleged in a criminal case filed last week in the Eastern District of New York, Scott – known to denizens of the EDNY courts as “Mighty Whitey” – drafted a letter to the BOP for one of his clients, falsely recounting the client’s history of substance and alcohol dependence.  The letter was signed by Mighty’s non-lawyer assistant, who said he was the inmate’s treatment provider. Mighty Whitey sent the letter to the BOP to win his client’s admission into RDAP.

The Feds tumbled to the scheme somehow, and wiretapped Mighty Whitey talking to the inmate on a smuggled cell phone in prison, discussing the letter. One of Mighty’s sidekicks allegedly said on a call that he doubted the BOP would be “scrutinizing it that much.”

He appears to have been mistaken. Quite mistaken.

U.S. Attorney E.D.N.Y. News Release, Queens Criminal Defense Attorney and Three Other Individuals Indicted for Conspiracy and Making False Statements (Mar. 26, 2018)

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WITHER DIMAYA?

The most common question we get from readers is ‘how do I get up out of prison?’ The second most common question we hear is ‘when is the Supreme Court going to decide Lynch v. Dimaya (now known as Sessions v. Dimaya)?’

violence160110Dimaya, which relates in part to whether the Johnson v. United States declaration that part of the “crime of violence” definition was unconstitutional, was argued on the first day of the current Supreme Court term (last October 2nd). This was after the case was held over from the prior term for reargument (suggesting the Court was split 4-4 after the prior argument, which occurred before Justice Gorsuch was confirmed). Of the nine cases argued in October 2017, four of them (including Dimaya) remain undecided. Only Dimaya has any criminal law impact.

Last week, Supreme Court observer Amy Howe predicted that either Justice Kagan or Gorsuch would be writing Dimaya. She did not guess as to when that opinion would issue.

SCOTUSBlog, Reading the Tea Leaves (Mar. 26, 2018)

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– Thomas L. Root