Pell Grants for Prisoners May Return – Update for February 23, 2018

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


For the first time in over 20 years, Congress is seriously weighing whether to reinstate Pell grants for locked-up students, a move that would restore a federal lifeline to the nation’s cash-strapped prison education system.

education180205Senator Lamar Alexander (R-Tennessee), chairman of the Health, Education, Labor and Pensions Committee, said last week the committee would consider including federal financial aid grants for prisoners in the current reauthorization of the Higher Education Act. This would represent a recognition of education as a centerpiece of prison reform. The grants would be used to cover the cost of college courses taught in prisons, online or both.

Congress banned Pell grants for prisoners in 1994, amid complaints that inmates should not be treated to education aid that could be spent on other programs. Since then, the short-sightedness of not using education to lower recidivism rates became clear to politicians on both sides of the aisle.

In 2015, the Education Department ran an experimental program that allowed 12,000 incarcerated students to be eligible for the financial aid. “Most prisoners, sooner or later, are released from prison, and no one is helped when they do not have the skills to find a job,” Sen. Alexander said in a statement. “Making Pell grants available to them in the right circumstances is a good idea.”

Key conservative leaders who favor prisoner rehabilitation are likely to back the proposal. Betsy DeVos, secretary of education, has called reinstating Pell grants for inmates “a very good and interesting possibility.” In his State of the Union address, President Trump cited overhauling the United States’ prisons to “help former inmates who have served their time get a second chance.” Charles G. and David H. Koch, the billionaire conservative activist brothers, have poured millions into a partnership with the Texas Public Policy Foundation to start a program, to rehabilitate the nearly 700,000 prisoners estimated to be released this year.

recividists160314The national recidivism rate is 43.3% within three years, but higher education has a real impact on reducing that rate. A widely cited study conducted by the Texas Department of Criminal Justice found that higher education reduced recidivism to just 13.7% for formerly incarcerated individuals who earned an associate’s degree, 5.6% for those earning a bachelor’s degree, and less than 1% for those earning a master’s degree.

New York Times, Senate Leaders Reconsider Ban on Pell Grants for Prisoners (Feb. 15, 2018)

Big Island Now, Sen. Schatz Introduces Education Act for Incarcerated (Feb.14, 2018)

– Thomas L. Root


Government May Freeze Money Needed for Lawyer to Satisfy Restitution – Update for February 22, 2018

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


govttheft180223It has long been the case that the Government would freeze a defendant’s criminally-derived assets even before trial, crippling his or her ability to pay for a defense. The theory – not a bad one – is that the assets obtained from bank robbery, drug dealing, and stock frauds never really belonged to the defendant to begin with, because it was illegally obtained. Of course, the theory does not explain why that money suddenly belongs to the government, instead of the people who lost it to theft, fraud or illegal drugs… but that is a question for another day.

Restitution was another matter. Restitution to victims is paid out of a defendant’s assets other than those obtained by crime. Every inmate who has to pony up $25.00 a quarter to IFRP knows that. Many years after release, defendants continue to pay restitution out of paychecks, inheritances and even social security.

But the requirement that restitution be paid never interfered with a defendant’s right to use his or her legally-obtained cash to hire the lawyer of his or her choice – until now.

Last week, the 5th Circuit ruled in a white-collar case that once defendant Bob Scully was convicted, the government held a lien over all of his property to see that restitution was paid, even if the lien prevented him from hiring the appellate attorney of his or her choice.

mine180223The Court said, “precedent strongly suggests that the Government’s lien against the untainted funds outweighs any Sixth Amendment right Scully has to them… The Government’s lien on Scully’s funds is superior to Scully’s alleged Sixth Amendment interest in using them to pay appellate counsel… Scully no longer has any equity interest in the untainted funds he wishes to use for appellate counsel. He has no Sixth Amendment entitlement to use the Government’s money to pay for appellate counsel, ‘even if those funds are the only way that he will be able to retain the attorney of his choice.’ Further, it is established that a defendant is not entitled to ‘representation by an attorney he cannot afford…’ Scully does have a constitutional right to be represented by counsel for his first appeal of right, and court-appointed counsel are readily available if he qualifies as indigent.”

United States v. Scully, Case No. 17-50223 (5th Cir., Feb. 14, 2018)

– Thomas L. Root


Supremes Say Guilty Plea Does Not Rule Out Constitutional Challenge – Update for February 21, 2018

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


The Supreme Court handed down four opinions this morning, but the long-awaited Sessions v. Dimaya decision, which will address the broader application of the 2015 Johnson vagueness holding on “crime of violence” was not among them.

class180221Today, SCOTUS held in Class v. United States that pleading guilty to a federal crime does not prevent a defendant from challenging the constitutionality of the statute on appeal. A federal grand jury indicted petitioner, Rodney Class, for possessing guns in his locked jeep on the grounds of the United States Capitol, a violation of 40 USC 5104(e)(1). He signed a plea agreement that set forth several categories of rights that he agreed to waive, but said nothing about his right to challenge the constitutionality of the statute on direct appeal. The D.C. Circuit Court of Appeals held Class could not appeal the statute’s constitutionality under the 2nd Amendment, because by pleading guilty, he had waived all constitutional claims.

The Supreme Court reversed, holding in a 6-3 opinion that a guilty plea, by itself, does not bar a federal criminal defendant from challenging the constitutionality of his statute of conviction on direct appeal. The Court said that “where the claim implicates ‘the very power of the State’ to prosecute the defendant, a guilty plea cannot by itself bar it.” Here, Class neither expressly nor implicitly waived his constitutional claims by pleading guilty. A guilty plea, the Court said, does not bar a direct appeal in these circumstances.

So when will we see Sessions v. Dimaya? No one outside of the Justices themselves know the answer. If the Court has any opinions to issue next week, those will happen on Tuesday or Wednesday.

Class v. United States, Case No. 16-424 (Supreme Court, Feb. 21, 2018)

– Thomas L. Root



Running Out of Prison Industry Workers? – Update for February 21, 2018

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


USA Today reported last week that hundreds of secretaries, teachers, counselors, cooks and medical staffers were tapped last year to fill CO posts across the BOP because of acute officer shortages and overtime limits. The assignments, known as “augmentation,” were made despite warnings that the assignments placed unprepared employees at risk.

harvest180221As recently as last July, a House committee told the agency to “curtail its over-reliance” on augmentation, once reserved only for emergency operations. Instead, the practice has become common at some institutions where even s plumbers, electrical workers, budget analysts and commissary staffers have been patrolling prison yards and filling officer vacancies in maximum-security units. “While BOP reports that there is a higher incidences of serious assaults by inmates on staff at high and medium security institutions than at the lower security facilities, to meet staffing needs the BOP still routinely uses a process called augmentation whereby a non-custody employee is assigned custody responsibilities,” the Senate Appropriations Committee reported last summer.

The BOP told USA Today that all employees are regarded as “correctional workers first.”

Worker shortages abound, and not just at BOP. The Washington Post reported last week that the sudden departure of the Justice Dept’s No. 3 official is adding to the turmoil at an agency already lacking permanent leaders for important divisions.

Help-Wanted180221Associate Attorney General Rachel Brand resigned, reportedly because she did not want to be sucked into the Robert Mueller Russia investigation, to take a position in Walmart’s legal department. Meanwhile, Attorney General Jefferson Beauregard Sessions III is blaming a single Republican senator, Cory Gardner of Colorado, for blocking confirmations of key figures, including the head of DOJ’s criminal divisions, over Session’s memo lifting Obama-era protections for states that have legalized marijuana.

Twelve U.S. Attorney picks still await confirmation, and 36 more have yet to be nominated. That’s a problem for DOJ, because, as an ex-official put it, “if someone is perceived as temporary and doesn’t have the full legitimacy that comes with Senate confirmation, they are less able to successfully advocate the interests and positions of their agency to the rest of the government.”

USA Today, As federal prisons run low on guards, nurses and cooks are filling in (Feb. 13, 2018)

Washington Post, Official’s departure adds to strain of vacancies at Justice (Feb. 13, 2018)

– Thomas L. Root


Federal Prisoners are Nuts – Update for February 21, 2018

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


nuts180221A Government Accountability Office report to Congress issued last week found that about two-thirds of BOP inmates with a serious mental were locked up for drug crimes (23%), sex offenses (18%), weapons charges (17%), or robbery (8%). Seriously mentally ill people are about twice as likely to be incarcerated for sex offenses, robbery, or homicide/aggravated assault as people without serious mental illness, and were incarcerated for drug and immigration offenses at about half or less the rate of inmates without serious mental illness.

System-wide, for fiscal year 2016, BOP spent about $72 million on psychology services, $5.6 million on psychotropic drugs and $4.1 million on mental health care in residential reentry centers.

GAO, Information on Inmates with Serious Mental Illness and Strategies to Reduce Recidivism (Feb. 14, 2018)

– Thomas L. Root


A Miss Becomes a Hit: Shooting at House Is Not a Violent Crime – Update for February 20, 2018

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


gunb160201At some point in his reckless past, Daryl Higdon pumped a few rounds into somebody’s house. The somebody was there at the time, but no one was hurt. Maybe Daryl was a lousy shot. Maybe he was just sending a message. Maybe he didn’t know the house was occupied, and was just being stupid.

Well, we can all agree that whatever else, he was being stupid. But – even if we haven’t shot up the neighbor’s place – who among us hasn’t been stupid once or twice our lives? Or even more?

Years later, when Daryl was caught with a gun (which, as a convicted felon, he was not supposed to have), he was sentenced under the Armed Career Criminal Act. The ACCA requires that a defendant have three prior crimes of violence or controlled substance offenses. Daryl’s three priors (we don’t know what the other two were) included the North Carolina conviction for discharging a firearm into an occupied structure.

Regular readers of this blog know that since Mathis v. United States and Johnson v. United States, a lot of crimes that might intuitively seem to us to be violent are nonetheless not “crimes of violence” as the term is used in the ACCA. Whether busting a few caps into somebody’s castle was a crime of violence is what the 6th Circuit took up last week, and while Daryl may have missed what he was shooting at many years ago, he sure hit the target last week.

The North Carolina crime of discharging a firearm into an occupied structure has as its elements (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied, and (5) while having reasonable grounds to believe the property might be occupied. When Daryl got his ACCA sentence, the district court counted the shooting offense as a crime of violence “even if no one was actually struck, [because] the defendant fired a bullet toward a location where he knew or believed another person to be.’”

violent170315The 6th Circuit said that was not good enough. The ACCA requires that a prior be “a crime of violence,” not just a violent crime. For Daryl’s prior to be a COV, he just did not have to be reckless. As well, force had to be used “against the person of another.” As to that requirement, the 6th said, “it matters very much whether the person was actually struck.” Otherwise, the appellate court said, “by the government’s logic, a defendant who intentionally fired a gun at someone would be guilty of murder even if he missed.

No matter how reckless Daryl had been in shooting at the house, the Circuit said, because no one was hit, discharging a firearm into an occupied structure was not a crime of violence under the ACCA.

United States v. Higdon, Case No. 17-5027 (6th Cir., Feb. 13, 2018)

– Thomas L. Root


Sentence Reform is in McConnell’s Timid Hands – Update for February 19, 2018

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


The future of the Sentencing Reform and Corrections Act (S.1917), approved 16-5 by the Senate Judiciary Committee last Thursday, will depend on whether the bipartisan coalition backing it can persuade Senate Majority Leader Mitch McConnell (R- Kentucky) to allow a full Senate vote.

mcconnell180219The New York Times said last Friday those prospects appear dim. “Mr. McConnell, who controls the Senate floor, continues to see the issue as a loser for Republicans, despite a wave of similar overhauls embraced by states across the country,” the Times opined. “He has argued that the issue divides Republicans, many of whom remain averse to lessening criminal penalties of any kind, and could dampen enthusiasm at the polls.”

It will be up to Sen. Charles E. Grassley (R-Iowa), the influential chairman of the Judiciary Committee and the lead author of the bill, to change McConnell’s mind. Grassley thinks President Trump’s desire for legislative accomplishments could sway McConnell.

Majority Whip John Cornyn (R-Texas), who supported SRCA two years ago, opposed this year’s bill. Cornyn unsuccessfully urged his Judiciary Committee colleagues last week to focus on the alternate bill “that we can actually get a presidential signature [on] and pass it into law.” Four other Republicans voted against the bill as well. One conservative pundit, no fan of SRCA, said last Friday, “With committee Republicans this divided and the administration opposed to the bill, it seems certain that Majority Leader McConnell will not bring up the leniency legislation. I think it is dead this year…”

Grassley admits SRCA faces resistance McConnell, who “doesn’t want to bring it up.” During the last Congress, McConnell refused to give floor time to the criminal justice bill because of the number of Republican senators in tough reelection races. “He doesn’t have that problem now,” Grassley said. “We only have 10 Republican senators up [for reelection in November]. This bill can easily get 60 votes.”

sessions180215Attorney General Jefferson Beauregard Sessions III’s opposition to the bill may actually help its chances. may help the bill’s chances. Sessions has angered many senators with what they see as broken promises and personal attacks. Last week, as we reported, he infuriated Grassley, a long-time friend, with a letter opposing SRCA that Grassley found insulting. The Wall Street Journal reported, “Some experts said these fights could cost Mr. Sessions allies in the Senate at a time when he has few friends in the administration.” Being able to stick the Senatorial thumb in Sessions’ eye may spur McConnell to call the bill for a vote.

NY Times, Senate’s Renewed Push for Sentencing Overhaul Hits a Familiar Roadblock (Feb. 15, 2018)

Politico, Criminal justice overhaul advances amid Grassley-Sessions spat (Feb. 15, 2018)

Wall Street Journal, Attorney General Jeff Sessions Is Battling His Own GOP on Multiple Fronts (Feb. 15, 2018)

– Thomas L. Root


Dropped Calls: FCC, Wireless Carriers Seek to Block Prison Cellphones – Update for February 16, 2018

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


Just this week, two officers at South Mississippi Correctional Institution in Greene County were arrested after they were caught with contraband during the first major shakedown of the year under Operation Zero Tolerance. And in California, Federal officials using a task force of 750 officers rounded up dozens of suspects early Wednesday to disrupt what they described as a massive street and prison gang conspiracy to distribute methamphetamine, cocaine and heroin using social media, coordinated between street gangs and prison gang leaders who used cellphones smuggled into prisons to coordinate their activities.

cellphone180216All of this points to the serious problem prison officials have combatting the infiltration of cellphones into facilities. But BOP officials and members of Congress say they’re hopeful that a meeting last week with wireless industry representatives will lead to a solution that combats security issues posed by cellphones in prison. The Federal Communications Commission hosted the meeting, making good on a promise last year by FCC Chairman Ajit Pai to help facilitate conversation among law enforcement, prisons officials and wireless providers to address the issue that corrections officers say is their chief safety threat behind bars.

Prisons officials say cellphones — smuggled into institutions by the thousands, by visitors, employees, and even delivered by drone — are dangerous because inmates use them to carry out crimes and plot violence both inside and outside prison. The FCC has said it can’t permit jamming in state prisons, but it has permitted a test of signal blocking at FCI Frostburg in January. Wireless industry groups oppose jamming. In a letter filed with the FCC last month, a trade group wrote that court orders should be required to shut down devices in prison.

cellsandwich180216“I am encouraged by how seriously the FCC is taking the issue of contraband cell phones in prisons,” Congressman David Kustoff (R-Tennessee) told The Associated Press. “I look forward to the telecommunications industry working with state corrections officials to put a stop to this concerning public safety threat.” Kustoff has been among those pushing for a fix to the phone problem. He spoke with AP after being briefed by his state prisons director, who was one of several attending the meeting.

Representatives from the U.S. Department of Justice and BOP attended the meeting, as did Congressman Mark Sanford (R-South Carolina), who has spoken out about the issue of cellphones in prison since his time as South Carolina’s governor from 2002 to 2010.

The FCC has been softening on the jamming issue, thanks to persistent pleas from state and federal officials. The BOP test in January, is said to have been successful. Previously, the problem has been how to jam the illegal cell phone signals inside the prison but not interfere with legitimate cell signals just outside the prison walls, such as those from first responders. Proponents of the latest tests say the technology has advanced and the range is now more predictable. Assistant U.S. Attorney General Beth Williams told AP that the test represented “a big step” and could lead to the broader use of such technologies.

AP, FCC schedules meeting to address prison cellphone issues (Jan. 25, 2018)

Inside Towers, Pai Calls on Carriers to Help Block Illegal Prison Cell Phone Signals (Feb. 6, 2018)

Wireless Week, Corrections, Congress ‘Encouraged’ by Prison Phones Meeting (Feb. 10, 2018)

– Thomas L. Root



AG Sessions is a Chess-Playing Pigeon – Update for February 15, 2018

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





The Senate Judiciary Committee’s consideration of the Sentencing Reform and Corrections Act (S.1917), a bill which injects some sanity into both sentencing and rehabilitation policies, comes to a head with a mark-up and vote today. And unsurprisingly, the Attorney General – who never met an inmate he didn’t think should be serving multiple life sentences – weighed in on the widely-supported measure yesterday.

argueidiot180215In a letter to the Committee, Attorney General Jefferson Beauregard Sessions III warned that S.1917 “would reduce sentences for a highly dangerous cohorts of criminals, including repeat dangerous drug traffickers and those who use firearms and would apply retroactively to many dangerous felons, regardless of citizenship or immigration status,” Sessions wrote.

Of course, the bill would only entitle persons convicted and sentenced in ways unintended by Congress when it wrote 18 USC 924(c) and some other recidivist statutes to ask their sentencing judges for a reduction under 18 USC 3582(c)(2). The judge is entitled under that statute to grant the request in full, deny it in full or grant it only in part. But the AG hardly trusts federal judges – the people who impose sentences to begin with – to make a reasoned decision about the risk that sentence reduction will create when “a highly dangerous cohorts of criminals” is involved .

sessions180215The Attorney General’s scolding was not well received by Sen. Charles Grassley (R-Iowa), chairman of the Committee. The Washington Post reported Sen. Grassley was “incensed” at Sessions “for trying to derail a bipartisan bill that would reduce mandatory prison terms for drug offenders on the eve of its first procedural vote.” Sessions and Grassley have long been at odds over the measure, which reduces the length of mandatory minimum sentences for repeat nonviolent drug offenses, eliminates the “three strike” provision of 18 USC 3559(c)(1) that requires a life sentence, and gives judges greater leeway to impose sentences under the mandatory statutory minimum sentences for some offenses, when certain conditions were met. The reforms embraced by the bill fly in the face of Sessions’ bid to wage a new war on drugs, leading him to label the bill a “grave error.”

Grassley wasted no time publicly blasting Sessions, giving the AG what the Post called “a short reminder about who in the government makes the federal laws — and who is supposed to follow them.”

tweet180215In October 2015, the panel passed an identical measure, sending it on to the full Senate by a 15-5 vote.

Committee members anticipated Sessions’ outcry. Last week, the Committee spent most of its hearing time debating how best to get favorable action in the Senate. John Cornyn (R-Texas), one of the bill’s sponsors, said, “Given the opposition of the Attorney General and given the vocal opposition of some law enforcement groups, I honestly don’t see a path forward for that bill…”

Cornyn, who serves as Senate majority whip, said Senate Majority Leader Mitch McConnell (R-Kentucky) would be more likely to bring a prison reform bill to the floor than a sentencing reform package that might be a wedge within the Republican caucus. Cornyn said the committee’s best opportunity to move a criminal justice bill would be his legislation, proposed along with Sen. Mike Lee (R-Utah) and Sheldon Whitehouse D- Rhode Island), which contains only provisions aimed at easing re-entry for prisoners — “and then building on that as we can” with a sentencing amendment process on the floor.

Sen. Dick Durbin (D-Illinois), a prominent co-sponsor of the bill, disagreed, saying the Senate should not abandon bipartisan legislation just because the administration does not fully support it. “It’s a sad day if we are saying that we will not consider a measure in the halls here of the Senate Judiciary Committee if the attorney general of the United States opposes it,” Durbin said at the committee meeting. “For goodness sakes, have we reached that point? I hope not.”

“I’m worried that if we just revisit the Sentencing Reform and Corrections Act, which failed during the Obama administration, given this change in the new administration and its views on the sentencing reform component of it, we’re going to have nothing to show for our efforts,” said Cornyn, using the bill’s formal title. “I know we all tried to work together on this and it just didn’t work out.”

bipart160307Sen. Grassley said at the time the compromise SRCA bill would be the best way to get the sentencing and prison provisions into law. “It’s a matter of process and around here — nothing gets done unless it’s bipartisan. And I don’t often agree with Sen. Durbin, but we put together a bill that we worked really hard and we think it’s the only way of advancing both bills… There’s some people around here [who] are just a little bit afraid of what you call an Assistant U.S. Attorneys Association and they’re stopping everything from being done that is so successful in the other states. And when some people are willing to stand up to those leaders of the Senate, we’ll get something done in both areas.”

Congress is expected to remain focused on immigration-related debates for the foreseeable future, as the March 5th deadline for the expiration of the Deferred Action for Childhood Arrivals program approaches.

One political observer, who writes under the pen name “root” (and has nothing to do with the author of this blog), said he has spoken to Grassley, and that the Senator “plans to use his substantial political clout to press Trump to change his mind.” The commentator said,

Trump bends over backwards to keep Grassley happy. He knows that as Judiciary Chairman, Grassley played a crucial role in delivering two of Trump’s biggest successes so far: the confirmation of Supreme Court Justice Neil Gorsuch and a modern record for circuit court judges in a president’s first year. ‘I’ve carried a lot of water for the White House,’ Grassley told me. ‘They ought to give some consideration for the close working relationship we’ve had on issues we agree on… I think people at the White House have not wanted to go against Gen. Sessions,’ he added, before closing with a sentence crafted perfectly to appeal to Trump’s ego. ‘This is an opportunity for a bipartisan victory by the President of the United States’.

Washington Post, Grassley ‘incensed’ by attorney general’s attempt to stymie sentencing reform (Feb. 14, 2018), root, Grassley twists Trump’s arm for criminal justice reform (Feb. 11, 2018)

Reuters, U.S. attorney general opposes plan to reform prison sentencing (Feb. 14, 2018)

District Sentinel, Senate Committee to Advance Criminal Justice Reform Once Opposed by Jeff Sessions (Feb. 8, 2018)

Roll Call, Senators Ponder How to Break Criminal Justice Logjam (Feb. 9, 2018)

Courthouse News Service, Cornyn Sees No Way Forward for Sweeping Criminal-Justice Reform (Feb. 8, 2018)

– Thomas L. Root


A Kinder, Gentler Robbery – Update for February 14, 2018

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



violence160110The 9th Circuit threw out Donnie Lee Walton’s conviction under the Armed Career Criminal Act last week, holding that Alabama first-degree robbery under Criminal Code § 13A-8-41 was not a violent felony under the ACCA, because the force required to support a conviction for 3rd-degree robbery (in the same statute) is not sufficiently violent to render that crime a violent felony under the ACCA, and the Government waived any argument that the statute is divisible.

At the same time, Donnie’s panel held that United States v. Dixon, a 9th Circuit case holding that California robbery is not a violent felony under the ACCA’s force clause because it can be committed where force is only negligently used and because the statute is indivisible), requires a holding that California 2nd-degree robbery under Penal Code § 211 is not violent, either.

United States v. Walton, Case No. 15-50358 (9th Cir., Feb. 1, 2018)

– Thomas L. Root