BOP Medicine Has Another ‘Pants On Fire Moment’ in Brooklyn Courtroom – Update for May 16, 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.

LIAR, LIAR

liar151213A judge last week ordered the MDC Brooklyn medical director to appear in court to explain why the BOP didn’t give an inmate all his medication after an emergency appendectomy and then apparently lied to the man’s lawyers that he had gotten all of the required doses (and then for good measure, threw him in the SHU for spurious reasons).

US District Court Judge LaShann DeArcy Hall set a hearing for May 23rd after she grilled a BOP attorney during a status conference last week, repeatedly asking which BOP official “lied” that a detainee was given all five days of his antibiotic regimen. The medicine had been ordered by outside surgeons after the pretrial inmate received an emergency appendectomy that almost didn’t happen.

liar170209The order came after the detainee’s lawyers told the Court that their client’s “appendix may well have ruptured because MDC staff ignored his initial complaints; he was forced to recover from surgery without the aid of painkillers; and he is now being deprived of his antibiotics, which he must finish to avoid potential infection. Further, it appears that [the detainee] was sent to the SHU in retaliation for his reasonable demands for his medication and efforts to get counsel to assist him, and that the MDC revised the SHU ticket after the fact to justify its actions.”

NY Daily News, Judge Demands Answers From Brooklyn Federal Jail Officials Over Inmates Medical Woes (May 6, 2024)

Emergency Motion (Dkt. 330), United States v. Ricketts, Case No 22-cr-106 (EDNY)

– Thomas L. Root

Judge Slaps Additional Reporting Requirements on BOP Dublin Closure – Update for May 14, 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.

‘LOSE WEIGHT AND DRINK WATER’: JUDGE BLASTS BOP OVER FCI DUBLIN CLOSURE

dublinprotest240424U.S. District Judge Yvonne Gonzalez Rogers (N.D. Cal.) last week slammed the Federal Bureau of Prison’s April 15 closure of the FCI Dublin women’s prison in a 15-page order that ripped the agency’s “ill-conceived and, like Swiss cheese, full of holes” action, chronicled BOP violations of inmates’ rights, and ordered close monitoring and care of the incarcerated women who were moved to other facilities.

The Court noted that the Special Master it appointed in March–due to Dublin’s conditions and alleged staff retaliation–arrived at the prison on April 8 only to find that “the extent of FCI Dublin’s internal deterioration” and operational “conditions worse than BOP officials had led the Court to believe.” The BOP decided to close the facility later that week but buried the announced closure in a sealed attachment to an administrative filing provided to the Court on Friday, April 12.

The Judge complained that the BOP “informed the Court of its intention to close the facility over the following week, without specifying when such closure would begin. The BOP’s obfuscation is obvious. Its lack of transparency with the Court resulted in negative consequences. In fact, BOP Regional Director, Western Region Melissa Rios-Marques refused to advise Special Master [Wendy] Still of the impending closure, which would begin the next day, even when asked directly on Sunday, April 14.”

As some inmates could tell the BOP, that kind of lack of candor with government officials can get you locked up.

glasswater240514The Order takes the BOP to task for wantonly destroying inmate personal property, denying prisoners due process in disciplinary hearings, and ignoring administrative remedy and compassionate release requests. The Court gave special attention to inmate medical and mental health care. The Judge, who spent nine hours on an unannounced visit to Dublin in February, observed in March that she “heard a refrain so consistent from so many [inmate]s in different quarters and without prompting to demonstrate its reliability: in response to health concerns, medical staff told them to ‘lose weight and drink water.’” Now, the Court found that

FCI Dublin has repeatedly failed to follow BOP departmental policy related to completing timely health intakes; sick call access was delayed for extended periods; medical needs, including relative to communicable diseases, went untreated or lacked any follow up; and specialty appointments were not timely scheduled. Relatedly, drug treatment programs were not available for the majority of the population that requested treatment, despite drugs being rampant at the facility. Mental health services were also inadequate. By way of illustration, access to psychiatry services was blocked administratively despite repeated requests from the psychology department itself.

The Court ordered the BOP to provide a weekly status update for each transfer to the judge, the special master and attorneys for the incarcerated women who are suing the bureau. Also, the agency must submit a monthly staffing report for each prison where the women ended up, along with details of the mental health and medical health care they are receiving.

Pat Nolan, who helped draft the Prison Rape Elimination Act and served as a commissioner on the National Prison Rape Elimination Commission, wrote last week in The Hill:

The closure of FCI Dublin is just one more devious attempt by the BOP to make it harder for the inmates to get justice for the assaults they endured. The Bureau of Prisons just cannot be trusted to police itself. Congress is finally moving to impose outside oversight on the runaway agency. The Federal Prison Oversight Act (H.R. 3019) recently passed the Oversight Committee 41-1 and is expected to reach the House floor for a vote by the end of June. Until now the BOP has been able “grade its own papers.” Congress needs to end the cover-ups and pass H.R. 3019 right away.

Noting the timing of the special master appointment and the prison’s closure, Rep. Mark DeSaulnier (D-CA) asked, “So why was this decision made? And was it retaliation in some form or fashion?”

BOPbus240429DeSaulnier and Rep. Bobby Scott (D-VA) wrote to Attorney General Merrick Garland on April 25, criticizing the fact that “incarcerated people and staff are being transferred away from Dublin with almost no notice, no opportunity to prepare, and no opportunity to debrief or receive support. This is particularly concerning in its implications on the ability of Special Master Wendy Still to complete her investigation into the abuses perpetrated at FCI Dublin. Special Master Still requires full access to identify and speak to all victims, witnesses, and perpetrators in these matters in order to properly deliver justice. Without the ability of a proper staff review to be held, potential abusers are now simply returning back into the system with no accountability.”

Order, California Coalition for Women Prisoners v. BOP (Dkt. 300, May 8, 2024), Case No 4:23-cv-4155 (N.D. Cal.)

Associated Press, Closure of California federal prison was poorly planned, judge says in ordering further monitoring (May 9, 2024)

The Hill, Feds close prison dubbed the ‘Rape Club,’ but accountability is needed (May 7, 2024)

Rep Bobby Scott, Letter to Merrick Garland (April 25, 2024)

HR 3019, Federal Prison Oversight Act

– Thomas L. Root

Ninth Circuit Says 922(g)(1) Unconstitutional for Nonviolent Felons – Update for May 13, 2024

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9th CIRCUIT HOLDS NONVIOLENT FELONS MAY POSSESS GUNS

A 9th Circuit panel held 2-1 last week that a defendant with five prior nonviolent felony convictions was not subject to 18 USC § 922(g)(1)’s prohibition on possessing guns or ammo under the Second Amendment.

In what may be the biggest Second Amendment ruling since the 3rd Circuit’s Range v. Attorney General decision last June, the 9th found that the Supreme Court’s New York State Rifle & Pistol Ass’n v. Bruen decision of 2022 means that § 922(g)(1)’s application to people with nonviolent felony convictions violates the Constitution.

throwgun240513Steve Duarte had five prior felony convictions for fleeing and eluding, possession of a controlled substance, and California’s own  felon-in-possession law when the police pulled him over for erratic driving. Naturally, Steve fled (it had worked so well for him before), and just as naturally, the police caught him. But before he was finally pulled over, Steve tossed a handgun from the car window.

The police recovered both the gun and Steve. The Feds picked up the case, with Steve being charged federally with § 922(g)(1) felon-in-possession. 

Steve went to trial and lost. But after Bruen was decided while his appeal was pending, Steve argued that his conviction was unconstitutional. He maintained that under Bruen, § 922(g)(1) “violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society.”

The 9th Circuit rejected its 2010 United States v. Vongxay holding that the Second Amendment doesn’t invalidate laws prohibiting convicted felons from possessing guns: “Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform. Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history….”

kidgun240125Applying Bruen, the 9th held that the handgun was an “arm” and Steve’s reason for carrying it–self-defense–“falls within the Second Amendment’s plain language.” The Circuit rejected the Government’s contention that the Second Amendment’s term “the people” excluded convicted felons “because they are not members of the ‘virtuous’ citizenry… Bruen and District of Columbia v. Heller foreclose that argument because both recognized the ‘strong presumption’ that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to ‘all Americans,’ not an ‘unspecified subset’.”

Once the right is established, Bruen holds, the Government must prove that § 922(g)(1)’s prohibition as applied to the defendant in question “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. The Government could not show that disarming nonviolent felons had a “well-established and representative historical analogue” that “imposed a comparable burden on the right of armed self-defense” that was “comparably justified” as compared to § 922(g)(1)’s “sweeping, no-exception, lifelong ban.”

“We do not base our decision on the notion that felons should not be prohibited from possessing firearms,” the decision noted. “As a matter of policy, 922(g)(1) may make a great deal of sense. But ‘the very enumeration of the Second Amendment right’ in our Constitution ‘takes out of our hands… the power to decide’ for which Americans ‘that right is really worth insisting upon.”

The impact of Duarte may be attenuated, however, because the Supreme Court is expected to issue its decision in United States v. Rahimi sometime in the next six weeks. Rahimi, which focuses on whether §922(g)(8)’s prohibition on people subject to a domestic relations protection order possessing guns is constitutional after Bruen, is widely expected to further define the Second Amendment limits of § 922(g).

gunfreezone170330Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman observed that “[t]he location and timing of this ruling is almost as interesting as its substance. Many hundreds of § 922(g)(1) cases are prosecuted in this big circuit each year, so the echo effects of this ruling could prove profound (though I would guess not that many involve persons with only nonviolent priors). And, we are likely only weeks away from the Supreme Court finally handing down an opinion in the Rahimi case to address the application of Bruen to a different section of § 922(g).

Berman observes:

Most folks reasonably expect the Rahimi ruling to provide more guidance on how the Bruen Second Amendment test is to be applied to broad federal criminal gun control laws. I would expect the coming Rahimi opinion will lead to the 9th Circuit reviewing this important Duarte ruling in some way, though whether that is in the form of en banc review or panel reconsideration might turn on what Rahimi actually says.

United States v. Duarte, Case No 22-50048, 2024 U.S. App. LEXIS 11323 (9th Cir, May 9, 2024)

New York State Rifle & Pistol Assn v. Bruen, 597 US 1 (2022)

District of Columbia v. Heller, 554 US 570 (2008)

Sentencing Law and Policy, Split 9th Circuit panel declares federal felon-in-possession criminal law unconstitutional as applied to non-violent offenders after Bruen (May 10, 2024)

– Thomas L. Root

No Second Chance for Federal Elderly Offender Home Detention? – Update for May 9, 2024

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SECOND CHANCE ACT REAUTHORIZATION BILL INTRODUCED, BUT NOTHING’S IN IT FOR FEDERAL PRISONERS

second170119Republican Carol Miller (WV) and 10 co-sponsors have introduced a bill to reauthorize the Second Chance Act of 2007 by extending a number of its grants and programs intended to benefit states and counties for prisoner reentry after serving their sentences. All of which is good.

Only two provisions in the 2007 Act are of interest to federal prisoners–the provision authorizing (but not requiring) the Federal Bureau of Prisons to grant up to 12 months of halfway house and the Elderly Offender Home Detention pilot program.

The right to grant up to 12 months of home confinement–enshrined in 18 USC § 3624(c)–remains unaffected by the proposed bill.

Parenthetically, prisoners complain all the time that the BOP is denying them their Second Chance Act rights to 12 months of halfway house, but the Act only lets the BOP grant up to 12 months of halfway house (it was a max of 6 months before that): the BOP is not obligated to grant as much as a single day of halfway house time if it deems it unnecessary or undesirable to do so.

elderly190109Given that the SCA of 2007 introduced the elderly offender pilot home detention program, which let the BOP send nonviolent offenders age 60+ home for the last third of their sentences, I hoped the reauthorization bill would extend the date of that program. It expired September 30, 2023. Unfortunately, the reauthorization bill does not mention the EOHD program at all.

EOHD is a favorite of Senate Judiciary Committee chairman Richard Durbin (D-IL) and Sen Charles Grassley (R-IA). If the bill passes the House and goes to the Senate, there is a decent chance the EOHD will be added before the bill gets to the Senate floor. However, the bill would have to make it to a vote in the House first, a tall order given that chamber’s dysfunction this year.

HR 8020, Second Chance Reauthorization Act of 2024

– Thomas L. Root

District Court Sends Prisoner Home From Home Confinement – Update for May 7, 2024

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DISTRICT COURT GRANTS COMPASSIONATE RELEASE FROM HOME CONFINEMENT

It can be challenging to explain to prisoners that what one district judge may decide on a compassionate release motion has almost no relevance to (and provides no precedential authority for) what another judge may decide in identical circumstances. What’s more, there are 677 district judge positions in the country (not including all of the district judges on senior status, who still carry a 25% caseload or better). That means there are well over 700 different opinions on how discretion should be exercised in considering a compassionate release motion.

odouls240507Still, it has almost been an article of faith that a prisoner already on home confinement is not going to get a district court to grant her compassionate release motion. Home confinement, after all, is to freedom what O’Douls is to beer. Not the real thing, but it sure beats having nothing to drink at all. Compassionate release (actually “sentence reduction” under 18 USC § 3582(c)(1)(A)(i)) requires that you show “extraordinary and compelling reasons” why your sentence should be reduced. When you’re already at home, your circumstances have to be truly extraordinary and compelling in order to get your sentence terminated early.

However, a Montana district court last week handed down what Ohio State University law professor Doug Berman called “an interesting new federal court order granting a § 3582(c)(1)(A)(i) sentence reduction motion based in part on the difficulties associated with extended home confinement.” In so doing, the judge turned the article of faith on its head.

Linda Reynolds, a 75-year-old career offender, had been doing her 262-month sentence for methamphetamine distribution since 2012 (and had served 53% of it). She was sent home on CARES Act home confinement two years ago after serving 114 months of her sentence. A few months ago, she filed a compassionate release motion arguing that her rehabilitation, age, medical conditions, unusually long sentence, and difficulties of extended home confinement together warrant termination of her sentence.

Last week, the district court granted her motion. The court found that Linda had completed several courses and certificates while in prison, maintained employment “throughout most of her time on home confinement,” and has stayed sober (no mean feat for someone who has battled addiction her whole adult life).

JSIN240507Two of the court’s analyses stood out. First, the district court resorted to the Sentencing Commission’s JSIN (Judiciary Sentencing Information) platform that compares sentences nationwide for people with the same guideline, offense level, and criminal history category. JSIN (available for free on the Sentencing Commission website) reported that courts imposed an average term of 188 months and median of 180 months, “nearly seven years shorter than Reynolds’s term.” In fact, the government had recommended a sentence of 188 – 235 months back in 2012. The district court found that Linda’s sentence – despite being what Guidelines Chapter 4B called for – “appears to be unusually long compared to her co-defendants, similarly situated defendants, and the sentence recommended by the government.”

Second, the court found that the terms and conditions of Linda’s home confinement had prevented her “from receiving needed medical care and have increased [her] out-of-pocket medical expenses.” Her status of still being in BOP custody although on home confinement prevented her from enrolling in Medicare and obtaining low-income housing, which would have put her in town and cut her transportation costs for getting to her work training program, meeting her counselor twice a week, and mak[ing] her four monthly UAs [urinalyses for drug use]. Reynolds’s status on home confinement also has prevented Reynolds from obtaining a checking account, from engaging in work that would produce supplemental income, and from being able to fully interact with her family members and support system.”

home190109While Linda’s “age, medical conditions, home confinement status, and long sentence would not rise to the level of extraordinary and compelling when viewed individually,” the Court held, “[t]hese factors appear, however, to rise to that level when viewed together… The Court finds that these factors interact with each other to create extraordinary and compelling reasons to reduce Linda’s sentence.”

Sentencing Policy and the Law, Notable new compassionate release ruling finding home confinement difficulties justified sentence reduction (April 30, 2024)

United States v. Reynolds, Case No 4:12-cr-0084 (D.Mont, April 30, 2024)

U.S. Sentencing Commission, Judiciary Sentencing Information (JSIN)

– Thomas L. Root

USSC Amendments Going Retro? Your Opinion is Wanted – Update for May 6, 2024

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GUIDELINE AMENDMENT RETROACTIVITY COMMENTS OPEN

retro160110The Sentencing Commission published the 2024 proposed Guideline amendments in the Federal Register last Friday, opening up a public comment period on whether certain proposals should be made retroactive.

The publication of the proposed amendments, a required step in their adoption, provides that the proposed changes are intended to become effective November 1, 2024. The statute authorizing the Sentencing Commission (28 USC § 994) gives Congress the right to override some or all of the changes, a power that has almost never been used in the Guidelines’ 28 years of existence.

The proposed retroactivity would apply to the

• the acquitted conduct amendment (USSG § 1B1.3);

• a change to juvenile sentences that eliminates adding 2 points for prior juvenile incarcerations of more than 60 days;

•  a change to §2K2.1(b)(4)(B)(i) to provide that the 4-level enhancement gun serial number obliteration applies only if the serial number has been modified such the original number “is rendered illegible or unrecognizable to the unaided eye;” and

• a change to Commentary in USSG § 2K2.4 to permit grouping of a § 922(g) gun count with a drug-trafficking count where the defendant has a separate 18 USC § 924(c) conviction based on drug trafficking.

retro240506Comments on retroactivity should be filed by June 21, 2024. Written reply comments, which may only respond to issues raised during the original comment period, should be received not later than July 22, 2024.

Comments may be submitted electronically to the Commission or mailed to

US Sentencing Commission
One Columbus Circle NE, Suite 2-500
Washington, DC 20002-8002
Attn: Public Affairs—Issue for Comment on Retroactivity.

Sentencing Guidelines, 89 FR 36853 (May 3)

– Thomas L. Root

Feds To Reschedule Marijuana As Prescription Drug – Update for May 3, 2024

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MARIJUANA BECOMING OFFICIALLY ‘COOL’

mrnatural240503The Justice Department last Tuesday said that it had recommended easing restrictions on marijuana in what could amount to a major change in federal policy.

A DOJ spokeswoman said the proposed rule, which hasn’t yet been made public, would downgrade marijuana from Schedule I to Schedule III, making it obtainable with a prescription.

The change does not end the criminalization of the drug. However, it is a significant shift in the government’s view of the safety and use of marijuana for medical purposes and reflects President Biden’s effort to liberalize marijuana policy in a way that puts it more in line with the public as increasingly more Americans favor legalizing the drug. The proposal would recognize the medical uses of marijuana and acknowledge it has less potential for abuse than some of the nation’s more dangerous drugs.

Rescheduling would not legalize marijuana outright for recreational use. But there can be little doubt that such a change–recreational cannabis (the politically popular term for marijuana) is now legal in 24 states–is coming.

The change may also lead to beneficial changes in Section 2D1.1 of the U.S. Sentencing Guidelines, where the base offense level for marijuana could drop in response to its falling from Schedule I to III.

In October 2022, Biden pardoned thousands of people convicted of simple marijuana possession under federal law and called upon regulators to review whether the drug should be reclassified, saying “it doesn’t make sense” that the government controls pot more tightly than cocaine or fentanyl.

marijuanahell190918Once the Office of Management and Budget signs off, the DEA will take public comment on the plan to move marijuana from its Schedule I–alongside heroin and LSD–to Schedule III, alongside ketamine and some anabolic steroids. After public comment and review by an administrative judge, the agency will publish the final rule.

“Today, the Attorney General circulated a proposal to reclassify marijuana from Schedule I to Schedule III,” DOJ Director of Public Affairs Xochitl Hinojosa said in a statement. “Once published by the Federal Register, it will initiate a formal rulemaking process as prescribed by Congress in the Controlled Substances Act.”

The Los Angeles Times said, “Late last year, Biden pardoned people who were convicted of using marijuana on federal land. That tiny step was merely a down payment on his promise of decriminalization. So is the Justice Department’s most recent move. The federal government should pick up the pace.”

Some in the government may have done so. Last Wednesday, Senate Majority Leader Charles Schumer, (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR), and Sen Cory Booker (D-NJ) reintroduced the Cannabis Administration and Opportunity Act, legislation to end federal marijuana prohibition by removing it totally from the Controlled Substances Act.

The bill also aims to empower states to create their own cannabis laws; ensure federal regulations protect public health and safety; and prioritize restorative and economic justice, according to the sponsors.

marijuana221111While the DEA’s move to reclassify marijuana is a “necessary step” that’s “long overdue,” Schumer said, it’s not the end of the story. “It’s not all we need to do,” he said. “It’s time for Congress to wake up to the times and do its part by passing the cannabis reform that most Americans have wished for. It’s past time for Congress to catch up with public opinion and to catch up with the science.”

New York Times, Justice Dept. Recommends Easing Restrictions on Marijuana (April 30, 2024)

Wall Street Journal, Biden Administration Aims to Reclassify Marijuana as Less Dangerous Drug (April 30, 2024)

Associated Press, US poised to ease restrictions on marijuana in historic shift, but it’ll remain controlled substance (April 30, 2024)

Los Angeles Times, Editorial: Reclassifying marijuana is not decriminalization, but is a welcome step in that direction (May 1, 2024)

Cannabis Business Times, Senate Democrats Introduce Bill to Federally Legalize Cannabis (May 1, 2024)

S.4226, A bill to decriminalize and deschedule cannabis, to provide for reinvestment in certain persons adversely impacted by the War on Drugs, to provide for expungement of certain cannabis offenses, and for other purposes (May 1, 2024)

– Thomas L. Root

“And” Really Does Mean “Or” – Update for April 30, 2024

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CLARITY 1, DEFENDANTS 0

When I reported last week on the Sentencing Commission’s amendment proposals for 2024, I failed to mention its proposed change to the new USSG § 4C1.1, the criminal history guideline for the zero-point reduction.

virgin171201Under § 4C1.1, someone with no criminal history points is still Criminal History Category I but gets a 2-level reduction in his or her offense category. The Guideline has a list of conditions: no guns, no sex crime, no violence, and more. Condition 4C1.1(a)(10) requires that “the defendant did not receive an adjustment under 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC § 848.”

If you stayed awake in high school English, you will read this as excluding people from the beneficial reduction if they both got a § 3B1.1 aggravating role and were convicted of an 848 continuing criminal enterprise (shorthand for a drug-based racketeering enterprise). That universe would be populated by a pretty small number of people.

The government naturally has argued to courts that the condition doesn’t mean that at all.  Instead, the government says “and” really means “or.”  That is, if you got a 2-level, 3-level or 4-level enhancement for being either a leader or an organizer or a supervisor or a manager of the criminal activity–the so-called aggravating role adjustment–you could not benefit from the zero-point reduction. Likewise, if you were convicted of a § 848 continuing criminal enterprise–regardless of how you might have been scored for a § 3B1.1 leadership enhancement–you were disqualified.

vanishingpt240430The district courts have largely agreed with the government. We should hardly be surprised. About 18,700 people were sentenced for federal drug offenses in Fiscal Year 2023, but a vanishingly few of those (seven defendants) were convicted under the drug kingpin statute (21 USC § 848).  About 6.3% of the 18,700 sentenced prisoners received a § 3B1.1 aggravating role adjustment (just under 1,200 defendants).   As you can imagine, the intersection of the 1,200 people who got aggravating role adjustments and the seven with § 848 convictions amounts to no more than a rounding error.

What’s more, the Supreme Court just interpreted an “‘and’ means ‘or'” case a month ago, and concluded that in the 18 USC 3553(f) drug “safety valve,” similar stilted language to that employed in Condition 4C1.1(a)(10) should be read so that “and” really is disjunctive, meaning “or.”  See Pulsifer v. United States.

Admitting that the current 4C1.1 condition 10 has created “confusion,” the USSC has now proposed breaking condition 10 into two conditions, so it will read:

(10) the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and;

(11) the defendant was not engaged in a continuing criminal enterprise, as defined in 21 USC 848.

and-or240319Like the other proposed amendments, this change is intended to be effective in November.

I apologize for not mentioning this last week. I was too hasty and inattentive.  In this case,  my “and” probably means “or.”

USSC, Amendments to the Sentencing Guidelines (Preliminary) (April 17, 2024)

USSC, FY 2023 Sourcebook of Federal Sentencing Statistics

Pulsifer v. United States, 144 S.Ct. 718, 218 L,Ed,2d 77, 2024 U.S. LEXIS 1215 (March 15, 2024)

– Thomas L. Root

The Wheels On The Bus – Update for April 29, 2024

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PUNISHING THE VICTIMS, DISSING THE JUDGE

wheelsonbus240429Nearly all inmates had been transferred out of the beleaguered Bureau of Prisons women’s facility FCI Dublin by last Tuesday, according to a BOP spokesman, with only about 23-40 prisoners–all of whom have pending releases or halfway house/home confinement transfers scheduled–remaining at the facility.

Several news outlets last week reported that the hasty transfers bore more than a passing resemblance to the Bataan Death March. Inmates reported they went without water or sanitary products, and some ended up sitting in their own excrement. A prisoner’s parent told KTVU-TV in Oakland that when the inmates asked where they were going, 

“They were told ‘none of your business,’ or ‘SFTU, see, this is why Dublin is closing, you all need to learn to keep your mouths shut. I gave up my Saturday off to move you girls.’ The other CO said, ‘I came out of retirement to help move you bitches.’

“The bus driver played a children’s recording of the Wheels on the Bus over and over again at full volume, and then played loud rap music with sexually explicit language about sex acts.

“He told them the more they fussed, the louder it was going to be,” [the parent wrote to the TV station]. “All thru the 12 hours they were called bitches. They were told they were the reason for the closing of Dublin. They should have kept their mouths shut.”

BOPbus240429The San Jose Mercury News reported that one source said of the closure and transfer, “I have witnessed people fighting. I have witnessed people crying. I have witnessed people drinking pills because they just want to pass out and not think about it. I have witnessed people vomiting. Another lady over here next to me, she was cutting herself. We have witnessed all of that. And even officers over here are crying because that’s how crazy it is.”

Members of the Senate Judiciary Committee sent a letter to BOP Director Colette S. Peters expressing concern over claims of a chaotic transfer. The letter, signed by Committee Chairman Richard Durbin (D-IL) and four others, alleged that

“concerned stakeholders and advocates have made alarming reports about the ensuing chaos. These reports include: unavailability of medical staff; inadequate-to-no medical attention, including for individuals expressing suicidal ideation; improper medical clearance prior to transport; lack of food and water for those remaining in the facility awaiting transfer; mistreatment, harassment, neglect, and abuse while in transit; and confiscation of personal property. This reporting is appalling and even more concerning in light of the well-documented abuses that have taken place previously at FCI Dublin…”

The letter demanded that the BOP director provide the Committee with information on how the agency has prepared to close FCI Dublin, including its written plans on the “safe and humane release from custody.”

On that same day that the BOP announced Dublin would close, U.S. District Judge Yvonne Gonzalez Rogers, the Oakland, California, judge overseeing the class action suit against Dublin officials, ordered a halt in the transfers so that the special master she had appointed to oversee Dublin could review the process. A review of each prisoner’s status would “ensure inmates are transferred to the correct location,” the judge wrote in her April 15 order. “This includes whether an inmate should be released to a BOP facility, home confinement, or halfway house, or granted a compassionate release.”

bird240429The BOP pushed back, filing a motion for relief from the Judge’s order, questioning the authority of the special master and complaining that the judge’s order amounts to “a de facto requirement” that the BOP keep the prison open. “The Court not only lacks jurisdiction to impose such a requirement, but it is also antithetical to the overall objective of safeguarding inmate safety and welfare,” the motion complains. “Extensive resources and employee hours have already been invested in the move.”

As of yesterday, the motion has not been ruled on. Given that the BOP has already transferred up to 96% of the Dublin inmates–many in horrific conditions–the BOP appears to have presented Judge Gonzalez Rogers with a fait accompli that the Court is unlikely to be able to undo,

goodjobhomer240429In a case of the BOP really not getting it, KTVU reported that in an interoffice memo sent last week, Director Peters “commended her staff for their ‘tireless efforts in facilitating the successful transition’ of women from FCI Dublin… Peters said that the transfer involved ‘careful planning and coordination to ensure the safe transfer of women to other facilities, with special attention given to their unique programming, medical, and mental health requirements’.”

It is perhaps unsurprising that the Federal Prison Oversight Act (H.R. 3019), introduced a year ago, was approved earlier this month by the House Committee on Oversight and Accountability.

Under the bill, which still must be approved by the full House and Senate before becoming law, the Dept of Justice’s Inspector General would conduct periodic prison inspections of BOP facilities. The bill would require the attorney general to ensure the inspectors have “access to any covered facility, including the incarcerated people, detainees, staff, bargaining unit representative organization, and any other information” needed. The assessments “may include” incarceration conditions; staff adequacy and working conditions; availability of FSA programs; SHU practices; prison medical and mental health services; and violence, sexual abuse and excessive-force allegations.” The bill would establish an ombudsman to whom prisoners and loved ones could complain.

Associated Press, Senators demand accounting of rapid closure plan for California prison where women were abused (April 24, 2024)

KTVU, FCI Dublin prison closure: Women describe horrific journey across US (April 22, 2024)

KTVU-TV, U.S. Senators call FCI Dublin transfer of women ‘appalling’ (April 25, 2024)

Senators Richard Durbin, Cory Booker et al., Letter to Colette S Peters (April 24, 2024)

San Jose Mercury News, Chaotic Dublin prison closure leads to fighting, crying, cutting, inmates say (April 24, 2024)

Associated Press, Feds push back against judge and say troubled California prison should be shut down without delay (April 18, 2024)

KTVU, BOP director commends FCI Dublin staff, despite accounts of abusive behavior (April 24, 2024)

HR 3019, Federal Prison Oversight Act

– Thomas L. Root

4th Says District Court Must Consider All Grounds for Sentence Reduction – Update for April 26, 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.

4TH ISSUES EXPANSIVE COMPASSIONATE RELEASE DECISION

compassion240426Antonio Davis was in the 8th year of a 210-month sentence drug conspiracy sentence when COVID hit. He filed for an 18 USC § 3582(c)(1)(A) sentence reduction (compassionate release) for medical reasons and because he should no longer be a career offender inasmuch as one of his predicate offenses was no longer considered a crime of violence.

The district court denied Antonio’s motion because his medical condition wasn’t that bad and he had gotten vaccinated. The district court rejected Antonio’s career offender argument, finding that the issue should be raised in a 28 USC § 2255 motion. And even if Antonio had shown extraordinary and compelling reasons for relief, the court held that his release would not be justified under the 18 USC § 3553(a) sentencing factors because he had only done half of his sentence and 210 months was needed to address the seriousness of his crimes and the risk of recidivism.

Last week, the 4th Circuit reversed, holding that the district court wrongly failed to consider whether Antonio’s career-offender status claim was an extraordinary and compelling reason for release. “Years after Davis was sentenced,” the 4th said, “this Court held that a 21 USC § 846 [drug] conspiracy conviction… is not categorically a “controlled substance offense” for purposes of the career offender guidelines… If Davis were sentenced after that decision, he would no longer be designated a career offender…”

compassion160124In addition, the Circuit said, Antonio presented a second intervening change in law that would further reduce his sentence. Guidelines Amendment 782, added in 2014, retroactively lowered the base offense level for Antonio’s § 846 conviction by two points, but because he was a career offender, he was not eligible for the reduction. “Today,” the 4th said, “Davis would not be sentenced as a career offender [and he would be] eligible for the retroactive two-point reduction…”

If Antonio “were sentenced today,” the Circuit said, “his guidelines range would be 92 to 115 months—about half of his 210-month sentence.” Citing the Supreme Court’s 2022 Concepcion v. United States decision, the 4th said, “Concepcion’s broad reasoning permits federal judges to think expansively about what constitute ‘extraordinary and compelling reasons’ for release, absent specific congressional limitations. And the Sentencing Commission’s latest guidance goes a long way to resolve any remaining questions of congressional intent not answered by the Supreme Court’s decision.”

The 4th concluded that “the district court abused its discretion by declining to address Davis’s change-in-law and rehabilitation arguments in its “extraordinary and compelling reasons” analysis. We also find that, given the mitigation evidence Davis supplied, the substantial changes in law between the original sentencing and today, and the potentially gross sentencing disparity created by those changes, the district court’s explanation of the § 3553(a) factors is insufficient.”

United States v. Davis, Case No. 21-7325, 2024 U.S. App. LEXIS 9399 (4th Cir, Apr 18, 2024)