Tag Archives: stimulus

$timulus Bill Is Cash-Rich But Justice-Poor – Update for February 22, 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.

IT’S ALL ABOUT THE BENJAMINS

benjamins210222The House of Representatives finally released the text of the new stimulus package last Thursday, the 591-page American Rescue Plan, which includes billions of dollars for vaccine, unemployment benefits, state coffers, small businesses and stimulus checks, not to mention a grab-bag of special interest goodies like $15.00 an hour for the kid assembling sandwiches at the neighborhood McDonalds.

The American Rescue Plan contains something for almost everyone. Almost. For federal prisoners, the bad news is this: unlike the CARES Act (adopted 11 months ago) and the HEROES Act (a House measure last May that never passed the Senate), the American Rescue Plan contains nothing easing compassionate release, fixing the elderly offender home detention plan, or addressing any other criminal justice program.

The good news: inmates will be eligible for the $1,400 stimulus payment, just as they were eligible for the prior $1,200 and $600 payments.

[How to get stimulus payments, old and new]

The reasons that the ARP left out in a criminal justice measures are complex. Primarily, it is because Congress wanted to move rapidly, and the Democrats are pushing hard for Republican support in the evenly divided Senate. The New York Times reports that the House may pass the ARP this week, and the goal is to have President Biden sign the bill by March 14 (when existing federal unemployment money runs out). ARP is all about money, and sponsors want to keep it that way, because as a money bill, ARP has broad public support.

The Biden administration clearly plans some sort of comprehensive criminal justice reform this year. At a townhall meeting in Milwaukee last week, Biden said, “No one should go to jail for the use of a drug. They should go to drug rehabilitation.” The sentencing system should be changed to one that focuses on making sure that there are rehabilitation plans for inmates more generally, Biden said, adding that prison systems should have access to vocational programs that help those behind bars learn the career skills they need to succeed outside of prison.”

booker210222Meanwhile, Sen. Cory Booker (D-New Jersey) has been picked to chair the Senate Judiciary Committee’s Subcommittee on Criminal Justice and Counterterrorism. The subcommittee’s jurisdiction includes the Dept of Justice Criminal Division; the Drug Enforcement Administration, Bureau of Prisons, Sentencing Commission, and other law enforcement agencies.

This is significant, because a subcommittee chairman controls the subcommittee’s agenda, and can bring substantial pressure – even without writing legislation – on the agencies it oversees. “Our nation’s broken criminal justice system is a stain on the soul of our country, the result of decades of failed policies that have broken apart families and communities and have not made us safer,” Booker said. “I look forward to continuing and strengthening my partnership with Chairman Durbin [Sen Richard Durbin (D-Illinois), chair of the Senate Judiciary Committee] to further advance reforms to our policing and criminal justice system.”

letter161227Finally, interest groups finally have sympathetic ears in Congress and at DOJ. In an open letter to the not-yet-confirmed Attorney General, Merrick Garland, the ACLU urged him “to make clear, on-the-record commitments on five critical issues: mass incarceration; policing; COVID-19 in federal detention; the death penalty; and solitary confinement.” The ACLU asked that the “Trump DOJ’s efforts to thwart Congressional intent behind the FIRST STEP Act of 2018 should also be reversed: DOJ should support application of the Act’s reduced penalties at all sentencings, including resentencings in cases where an illegal sentence was vacated.”

HR -____, American Rescue Plan (reported to the House), Feb 18, 2021

New York Times, Republicans Struggle to Derail Increasingly Popular Stimulus Package (February 19, 2021)

Washington Examiner, Biden: ‘No one should go to jail for the use of a drug’ (February 16, 2021)

NJInsider, Booker to Chair Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism (February 14, 2021)

ACLU, Open Letter to Merrick Garland (February 18, 2021)

– Thomas L. Root

Money and Education… Just No Sentence Relief – Update for December 28, 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.

‘WHAT THE PELL?’ – NO SENTENCE REFORM IN STIMULUS, BUT THERE’S COLLEGE MONEY AND CASH FOR INMATES

Remember all of the sentence reform bennies in last May’s HEROES Act, passed by the House? Forget about them.

HR133-201228The 5,593-page stimulus package passed by Congress and signed last night by President Trump had none of the changes to compassionate release, CARES Act home confinement or elderly offender home confinement included in HEROES. However, the bill does resume federal college financial aid to prison inmates – Pell grants – that was banned in the 1994 crime bill championed by then-Senator Joseph R. Biden Jr.

The measure was part of a bipartisan deal struck by House and Senate education leaders to address affordability and equity in higher education. Two years ago, leaders in both houses, as well as the education secretary, Betsy DeVos, agreed that the 1994 ban should be revisited. In 2015, President Barack Obama’s Education Department piloted an experimental program called “Second Chance Pell” that allowed 12,000 incarcerated students to be eligible for the financial aid for distance learning and other programs that required tuition. Secretary DeVos expanded the program and urged Congress to make it permanent.

takethemoney191015The other curious feature – omission, perhaps – in the new stimulus package is this: after the uproar over inmates being eligible to receive the $1,200 stimulus payment in the CARES Act, there was no doubt that inmates would be cut out of any stimulus payment in the bill signed last night. But the legislation contains not a whisper that incarcerated people are exempt. Rather, it merely adopts the CARES Act eligibility requirement without change, meaning that inmates remain eligible for the stimulus payment, just like they were last spring.

The New York Times, Financial Aid Is Restored for Prisoners as Part of the Stimulus Bill (December 23, 2020)

Rules Committee Print, Consolidated Appropriations Act, 2021 (Senate Amendment to HR 133) (December 21, 2020)

– Thomas L. Root

Something My Wife Never Says… – Update for October 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.

IRS WAS WRONG, I WAS RIGHT

b1fI think I will savor those few words. “I was right.” It is something my bride of 41 years has never told me. Really, it happens as often as this month’s blue moon. But I can crow about this: When I advised federal inmates last April that the CARES Act had been so shoddily and quickly written that it qualified them for the $1,200 stimulus payment, I was right. Right. Right. Bloody well right.

There were plenty of doubters. In early May, the IRS posted guidance that inmates were not eligible for stimulus payments. Arguments went back and forth about this all summer.  The Senate even proposed a change in the law that would deny prisoners stimulus checks, and making it retroactive to March’s CARES Act. (It’s a shame the Senate isn’t as handy with the “retroactive” bit when it comes to criminal justice legislation, but that’s another story).

The problem was this: Nothing in the CARES Act authorized the IRS to write inmates out of the stimulus payment. The best excuse the IRS could come up with was that prisoners cannot get social security benefits Out in California, a couple of incarcerated people did something about it. They sued the IRS, and a few weeks ago, U.S. District Judge Phyllis Hamilton issued a 45-page preliminary injunction against the IRS, preventing it from deny stimulus payments to people because they were locked up.

nothing170127A preliminary injunction does not mean the plaintiffs won, but it does mean that the Court believes that the plaintiffs are likely to prevail on the merits. Although much of the Order relates to procedural and collateral issues, such as standing, ripeness and sovereign immunity, the meat of the holding – the strength of the IRS’s position – was pretty straightforward:

The… inquiry is whether incarcerated persons are eligible individuals.  On this question, the statute is brief and to the point.  Section 6428(d) states:

For purposes of this section, the term “eligible individual” means any individual other than (1) any nonresident alien individual, (2) any individual with respect to whom a deduction under section 151 is allowable to another taxpayer for a taxable year beginning in the calendar year in which the individual’s taxable year begins, and (3) an estate or trust.

§ 6428(d).  There is no indication that Congress left the definition of “eligible individual” open-ended or otherwise up to the Secretary’s discretion to change.  See Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (“It is well established that, when the statutory language is plain, we must enforce it according to its terms.”).

The court also finds persuasive the fact that the IRS has asserted three different interpretations of the term “eligible individual” since the enactment of the Act, barely six months ago. Initially, the IRS disbursed nearly 85,000 EIPs to incarcerated persons and, when the Treasury Inspector General for Tax Administration (“TIGTA”) questioned IRS management about this decision, the IRS “noted that payments to these populations were allowed because the CARES Act does not prohibit them from receiving a payment.” Then, as reflected in the FAQ, the IRS’s internal procedure manual, and the TIGTA report, the IRS decided that incarcerated individuals are not eligible. Now, the IRS takes the position in this litigation that, subject to generally applicable administrative and judicial rules, the IRS plans to allow otherwise eligible individuals who were only incarcerated for a portion of tax year 2020 to claim a CARES Act tax credit. The shifting interpretation demonstrates that the IRS “went well beyond the ‘bounds of its statutory authority.’”

shocked180619What? The IRS just made stuff up to stick it to inmates? I’m sure we’re all shocked.

The biggest immediate problem facing the Court was to get all of the eligible inmates who were either denied, had payments returned by prison staff who believed the IRS malarkey, or were deterred from filing by the claptrap on the IRS website, signed up. The deadline for filing the IRS non-filer statement – which can be done from the website or on a Form 1040 – had been October 15. The Court concluded it lacked the power to force the agency to move the date, but it strongly urged the parties to agree to something later.

Yesterday, the agency caved, and announced that the deadline for filing non-filer statements is now November 21, 2020.

It appears that the non-filer tool on the Web does nothing more than complete a Form 1040 reporting filing status and lack of income. For inmates without Internet access (which would be close to 100%), the standard 1040 can be completed and mailed.

money160818Meanwhile, the IRS has filed a “protective appeal” to the Ninth Circuit — which appears to be a placeholder of sorts designed to give officials time to decide if the agency will fight the ruling. “The decision whether to proceed with the appeal will be made by the acting solicitor general, who has not yet made a decision,” the IRS said in a court filing on Monday.

Order Granting Motion for Prliminary Injunction and Motion for Class Certification, Scholl v. Mnuchin, Case No. 20-cv-05309, 2020 U.S. Dist. LEXIS 176870 (N.D.Cal. September 24, 2020)

IRS.gov, Economic Impact Payment Information Center — Topic A: EIP Eligibility and General Information (June 5, 2020)

KPIX-TV, IRS Tries To Claw Back COVID-19 Stimulus Checks Sent To Prison Inmates (June 24, 2020)

Forbes, IRS Must Pay $100 Million Worth Of $1,200 Stimulus Checks, Judge Orders In Prisoners’ Lawsuit (October 6, 2020)

CBS News, IRS extends deadline for 9 million people to register to get a stimulus check (October 7, 2020)

The Independent, US judge: IRS can’t keep coronavirus money from inmates (October 7, 2020)

– Thomas L. Root

HEALS Act Proposes Financial Pain For Inmates – Update for August 5, 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.

SENATE STIMULUS PROPOSAL EXCLUDES PAYMENTS TO MOST INMATES

I reported back in April that the CARES Act did not exclude inmates from collecting the $1,200 stimulus check. Since then, the IRS has tried to say otherwise, but it has met a lot of pushback.

nothing170125The House and Senate are still far apart on a second stimulus bill, which everyone hoped would be in place by last Friday. One provision in the Senate version tacitly admits that nothing in the CARES Act kept inmates from collecting stimulus checks. The House version has no such limitation.

Newsweek reported last Friday that the Senate’s outline for stimulus checks, contained in the so-called HEALS Act, revises the eligibility to exclude prisoners in this round. Forbes reported that “under the Senate proposal, any decedent who died before January 1, 2020, any person in jail at the time Treasury processes the check or any individual in prison for all of 2020, may not receive a check. This language is also retroactive to the CARES Act checks.”

At this time, no one knows what provisions – the House’s or the Senate’s – will be included in the final package (or even whether there will be a final package).

Any interesting thought, however: The very fact that the Senate version specifically excludes those in jail or prison permits the reasonable inference that – contrary to what the IRS has argued – the CARES Act as written last March did not do so.

Newsweek, Should Prisoners Get Stimulus Checks? Their Innocent Families Suffer If Not (July 31)

Forbes, Senate CARES Act 2.0 Includes More Stimulus Checks, Unemployment Benefits (July 27)

Kiplinger, Second Stimulus Check Update: HEALS Act vs. CARES Act (July 29)

– Thomas L. Root