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Courts Chipping Away at Gun Statute in Wake of Bruen – Update for October 18, 2022

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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.

ANOTHER WEEK, ANOTHER ATTACK ON 18 USC § 922

iloveguns221018I reported a few weeks ago on a Western District of Texas ruling holding that the ban on people under indictment having guns or ammo (18 USC § 922(n)) was unconstitutional in the wake of last June’s Supreme Court decision in New York State Rifle & Pistol Ass’n v Bruen. Last week, a Southern District of West Virginia district court joined the fracas, holding that 18 USC 922(k) – which prohibits possession of guns with obliterated serial numbers – “implicate conduct that is protected by the Second Amendment… [making] the statute is presumptively unconstitutional” under Bruen.

The West Virginia defendant was caught with a gun that had serial numbers filed off. He was charged with being a felon-in-possession under 18 USC § 922(g)(1) and with violating § 922(k). The district court held that the felon-in-possession statute was constitutional, but that § 922(k) was not. The government could not show that the obliterated serial number statute was “consistent with the Nation’s historical tradition of firearm regulation.”

gunserialfiled221018Firearms were not required to carry serial numbers until the Gun Control Act of 1968. The “societal problem[s]” addressed by § 922(k) appear to be crime, the Court wrote, “including crime involving stolen firearms, and assisting law enforcement in solving crime. It is difficult to imagine that this societal problem did not exist at the founding. While firearms then were not the same as firearms today, there certainly were gun crimes that might have been more easily investigated if firearms had to be identifiable by a serial number or other mark. The Government has presented no evidence, and the court is not aware of any, that any such requirement existed in 1791.”manyguns190423

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said that “the rejection of Bruen-based attacks on felon-in-possession prohibition is already become quite common. As the Price opinion notes “Relying on the same [‘law-abiding’] dicta in the wake of Bruen, at least nine federal district courts have rejected constitutional challenges to Section 922(g)(1)… [But] based on my first quick read of this opinion, I am not sure I am wholly convinced by the analysis driving either part of the ruling.”

United States v. Price, Case No 2:22-cr-00097, 2022 U.S.Dist. LEXIS 186571 (S.D.W.Va., Oct. 12, 2022)

Sentencing Law and Policy, Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen (October 13, 2022)

– Thomas L. Root

Has the BOP Just Had Its ‘George Floyd’ Moment? – Update for October 17, 2022

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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.

BOP MISTREATMENT OF DYING INMATE DYING OF CANCER SPARKS OUTRAGE

The murder of George Floyd by Minneapolis police officer Derek Chavin captured the nation’s attention and fury like no event in the recent history of policing and race. With an angry opinion from U.S. District Judge Roy Dalton (Middle District of Florida), the late Frederick Mervin Bardell’s tragic mistreatment may do the same for the Federal Bureau of Prisons.

Fred was housed at FCI Seagoville, finishing a 151-month sentence for possession of child pornography, when he developed an intestinal mass that turned into metastatic colon cancer.  As Judge Dalton put it, “Frederick Marvin Bardell was a convicted child pornographer. He was also a human being.”

In November 2020, Fred filed a motion for compassionate release, complaining that he suffered from “unspecified bleeding,” “metastatic liver lesions (suspected cancer),” and “malignancy in his colon.” His medical expert averred that Fred “ha[d] a high likelihood of having cancer of the colon with likely metastasis to the liver.”

medical told you I was sick221017The BOP admitted that Fred has “liver lesions highly suspicious for metastatic disease” but argued that “to date, no one has determined that [his] condition is terminal.” The Government also maintained that there was no indication that Fred could not receive adequate care in custody. Based on the Government’s assurance, the Court denied his November compassionate release motion.

You have to love the construction of the argument. It is not that the BOP is saying it CAN and WILL provide Fred with adequate medical care. Instead, it’s just that Fred can’t prove the BOP is unable to do so. But, as Judge Dalton wrote just two weeks ago, “As we now know, it was not true that Mr. Bardell could receive adequate care in custody, and, regrettably, his condition was indeed terminal.”

Fred filed a second compassionate release motion in February 2021, three months later. The Court granted this motion, which was supported by an affidavit from an oncologist that Fred was likely dying of metastatic colon cancer. The Court ordered Fred released as soon as the Probation Office and Fred’s attorney worked out a release plan appropriate for someone in Fred’s condition.

The BOP didn’t wait for any release plan. In fact, the BOP staff at Seagoville didn’t read the details in the release order at all. Instead, the BOP contacted Fred’s parents and demanded that they fork over $500 for a plane ticket for Fred. As soon as they did, Seagoville sent its inmate driver – who said he was told not to get out of the car – to Dallas-Fort Worth Airport, where Fred – who was “skin and bones, wheelchair dependent, and bladder and bowel incontinent” – was unceremoniously dumped on the curb without help or even a wheelchair.

With the aid of strangers, Fred was able to get loaded into a wheelchair, get on the plane, suffer through a change of planes in Atlanta, and finally arrive in Jacksonville. Fred, “who had a tumor protruding from his stomach and was visibly weak and bleeding, unsurprisingly soiled himself during this not so bon voyage,” the judge wrote.

bardell221017Fred’s lawyer and parents met him at the airport. Fred’s father had to take off his shirt and place it under his son to keep the blood and feces off the car seat. They took Fred directly to a hospital, where he died nine days later. His specialist said that if he had gotten prompt treatment when was first found, he would have had a 71% chance of recovery.

Two weeks ago, Judge Roy Dalton held the BOP in civil contempt for ignoring his release order. The judge was clearly frustrated that he could not do more. In what Reason called “a scathing opinion,” the Judge expressed dismay that “while the sanctions imposed are remedial in nature and restricted by law, the Court admonishes the BOP and [FCI Seagoville] Warden Zook for their blatant violation of a Court Order and sheer disregard for human dignity.” Judge Dalton wrote, “The BOP as an institution and Warden Zook as an individual should be deeply ashamed of the circumstances surrounding the last stages of Mr. Bardell’s incarceration and indeed his life. No individual who is incarcerated by order of the Court should be stripped of his right to simple human dignity as a consequence.”

investigate170724The Court recommended that the Attorney General investigate “the circumstances of Mr. Bardell’s confinement and treatment, the failure of the BOP to respond to his medical needs, and the BOP’s misrepresentations in connection with the compassionate release briefing regarding the seriousness of his condition,” the opinion states. “On a parallel track, the Court retains jurisdiction to continue investigating the circumstances surrounding the truthfulness of the assertions in the Government’s filings as well as Mr. Bardell’s incarceration and release.”

The Judge’s October 4 opinion appears to have gained national attention through an article in Reason, which also published accounts several years ago about three deaths from alleged medical neglect at FCI Aliceville.  At the time, Reason noted

The Bureau of Prisons listed the cause of death in all three cases as “natural causes,” according to public records obtained by Reason. That classification, while technically correct, erases the culpability of the agency. It’s like claiming a man accidentally drowned after you refused to throw him a life preserver.

But the agency doesn’t want to talk about what happened. When asked for more information, the BOP public affairs office said the agency “does not disclose the details of an inmate’s death.” The FCI Aliceville public information officer did not return multiple requests for comment. Reason has been waiting for more than a year for additional Freedom of Information Act records concerning these incidents.

sorry190124But in Fred’s case, the BOP’s response was different. BOP Director Colette Peters released a statement offering her condolences to the Bardell family but declining to comment on the specifics of the case because it was the subject of continuing litigation. She promised to cooperate with any investigations into the matter. “My heart goes out to Mr. Bardell’s family, to whom I send my deepest condolences,” Ms. Peters (who was not Director when Mr. Bardell’s mistreatment occurred) said. “Humane treatment of the men and women in Bureau of Prisons custody is a paramount priority. In instances where we have failed at upholding our mission, we are taking steps to find out what happened, how it happened, and how we can prevent it from happening in the future.”

Meanwhile, official attention is being paid to the matter. Senate Judiciary Chairman Richard J. Durbin (D-IL) wrote on Twitter that “the details unveiled in this case are appalling, and may not be isolated.” He called on the Justice Department’s inspector general “to investigate B.O.P.’s treatment of medically vulnerable individuals both while incarcerated and upon their release.”

On Friday, the Justice Department inspector general’s office announced it was opening an investigation into the case.

United States v. Bardell, Case No 6:11-cr-401, 2022 U.S.Dist. LEXIS 181785 (M.D. Fla., October 4, 2022)

Reason, Judge Holds Federal Bureau of Prisons in Contempt for Allowing Man To Waste Away From Untreated Cancer (October 10, 2022)

Washington Post, Judge blasts Bureau of Prisons’ treatment of dying prisoner (October 14, 2022)

New York Times, Judge Holds Prison Officials in Contempt for Treatment of Terminally Ill Inmate (October 13, 2022)

– Thomas L. Root

Clock Running Out on Drug Reform – Update for October 14, 2022

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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.

EXPERTS PESSIMISTIC ABOUT MORE ACT, EQUAL ACT

clock160620Even as a record 68% of the country favors marijuana legalization, according to a recent Gallup poll, a cannabis industry reporter last week said passage of the MORE Act or something else that decriminalizes marijuana is a long way off. “Five experts on politics in the weed industry I spoke with mostly agreed,” Sean Teehan wrote, saying the largest hurdles are a gridlocked Congress, a lack of political incentives for lawmakers to support legislation – or significant pro-cannabis reform – and an absence of consensus on what legislation should look like in practice.”

According to John Hudak, deputy director of the Center for Effective Public Management and the senior fellow in governance studies at the Brookings Institution, the main reason legislation is extremely unlikely to pass in the current congressional session ending on Jan 6, 2023, is that the issue simply doesn’t have enough support in the Senate.

“The votes just aren’t there – they’re barely there in the House. Democrats don’t even have the 50 votes in the Senate for it, and they need 60,” Hudak said.

The situation doesn’t look brighter following the November elections, said Jay Wright, a partner at an Alabama law firm and editor of the National Law Review. “I think if you see Republicans take the House in this upcoming midterm I think it’s going to be a gridlocked government and I don’t know if this is going to be the kind of issue that’s going to be on the front burner,” Wright said.

The EQUAL Act has been attached to the House version of the National Defense Authorization Act by Rep Mikie Sherrill (D-NJ). The amendment is one of a large number of riders attached to the NDAA, few of which ever survive passage of the annual appropriations bill.

marijuana160818“Whether senators will go along with enacting any of these reforms in the final bill remains to be seen,” Marijuana Moment reported last week, “but they would not be included under Senate leaders’ proposed amendment to entirely substitute the language of the House bill with the chamber’s own approach that will be considered when lawmakers return to Capitol Hill after the midterm elections.”

In fact, some suggest that the President’s administrative review of the scheduling of marijuana may be a trap. “Legalizing via Congress is (relatively) quick and easy,” Bruce Barcott wrote this week in Leafly. “The MORE Act, which would end the federal prohibition of marijuana, has now passed the House twice, but does not currently have enough support in the Senate.”

However, the Biden review is fraught with peril, Barcott says:

This order will be slow-walked by the FDA and DEA. They will run out the clock on the first Biden Administration.

If Biden is defeated in 2024, his Republican successor will kill the initiative. Even if the FDA and DEA come in with a shocking report advocating the removal of cannabis from the federal drug schedule, the new president will simply round file it. This has, sadly, happened before. If you don’t know the notorious story of President Nixon and the Shafer Commission, I invite you to wallow in that infamous chapter of American history.

If President Biden wins a second term in 2024, the outcome could be even worse.

If Biden presses DEA and FDA to act, his “fresh look” at marijuana’s status could result in a decision to keep it as Schedule I or re-schedule cannabis as a Schedule II substance. Both would be disastrous for pot decriminalization.

This is not likely to end well.

NY Cannabis Insider,  An honest take on the likelihood of federal marijuana legalization (October 3, 2022)

Marijuana Moment, Senators File NDAA Amendments To Legalize Medical Marijuana For Military Veterans And Protect VA Home Loan Benefits (October 3, 2022)

Leafly, President Biden’s marijuana ‘review’ could be a deadly trap (October 13, 2022)

– Thomas L. Root

Stranger in a Strange Land – Update for October 13, 2022

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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.

3RD CIRCUIT HOLDS THAT COLORABLE 2255 CLAIMS DEMAND A HEARING

burr221013Venue isn’t a very big deal in federal civil cases. But venue in a criminal trial – the right to be tried “in the state and district wherein the crime shall have been committed” – is a 6th Amendment requirement so basic that it has its own jargon: vicinage.

And that makes sense. Just ask Aaron Burr. He got hauled all the way from Louisiana to stand trial in Richmond, Virginia, far from where the offense occurred and witnesses were located.  

Even now, criminal venue can get short shrift.  I once had a Philadelphia lawyer – who had just left the U.S. Attorney’s office – tell me over coffee that lack of venue in an indictment was no big deal because the issue was easily waived and hardly mattered anyway.  

He was wrong.

Dave and Judy Haisten ran a diversified business, selling misbranded pesticides and animal drugs, as well as a variety of counterfeit goods (which included DVDs). They sold some of the pesticides in the Eastern District of Pennsylvania. The DVDs, however, were seized by customs officials in Cincinnati en route to the Haistens’ South Carolina home.

Dave and Judy were convicted in the Eastern District of Pennsylvania on 14 charges, including two counts of trafficking in counterfeit DVDs. They each got 12 months’ concurrent imprisonment on the first twelve counts (relating to pesticides and animal drugs). However, Dave got 78 months on the two DVD counts, concurrent with the other 12 counts (for a total sentence of 78 months). Judy got 60 months on her DVD counts, all running concurrently.

The Haistens believed that where the DVDs were concerned, they were strangers to the Eastern District of Pennsylvania.  They argued that venue for the DVD counts only existed in Ohio – where the shipment was intercepted – or South Carolina, where they kept their stash of counterfeit DVDs. But their trial attorney did not request a jury instruction on improper venue or move for acquittal on the DVD counts for lack of proper venue in the Eastern District of Pennsylvania.

bartsimpson221013The Haistens ultimately filed a joint § 2255 motion, arguing that their lawyer had been ineffective for failing to challenge venue on the DVD counts. The U.S. Attorney’s opposition to their § 2255 motion followed the typical government script: (1) the lawyer did not screw up; (2) the lawyer’s screw-up was done for strategic reasons; and (3) the lawyer’s screw-up did not prejudice the defendants.

The District Court denied Dave and Judy’s § 2255 motion, holding that any venue argument by their lawyer would have been futile because the government had proved venue for the DVD counts, based on a spreadsheet offered by the government that showed the Haistens had sent five DVDs to customers in the Eastern District of Pennsylvania. Neither the government nor the district court obtained a declaration from the Haistens’ lawyer as to why he did not argue venue.

Last week, the 3rd Circuit reversed the denial, and sent the case back to the district court for an evidentiary hearing. In so doing, the Court of Appeals provided a refreshing reminder that the standard for entitlement to an evidentiary hearing is to be kept low. 

On appeal, the government finally admitted that there was no venue for the DVD counts, because the seized DVDs at issue in those counts were not actually involved in sales to Eastern District of Pennsylvania customers. It argued nevertheless that their lawyer had a strategic reason for not raising venue, and anyway, Dave and Judy could not prove that their sentences would have changed.

The Circuit admitted that an attorney’s performance is not deficient if it is the product of a strategic litigation choice. But, it noted, “a district court must hold a hearing unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief… If a claim, when taken as true and evaluated in light of the existing record, states a colorable claim for relief… then further factual development in the form of a hearing is required.”

strategy221013The 3rd ruled that “colorable legal merit is distinct from actual merit. The threshold for a habeas petitioner’s claim to be colorable is low. The bottom line is, given the lack of evidence in the record about trial counsel’s strategic reasons for failing to object to improper venue on [the DVD counts], it is inconclusive whether the Haistens’ trial counsel performed deficiently. And while we take no definitive position on the merits of the Haistens’ arguments on the prejudice prong, their theory that they are prejudiced by having additional, improperly imposed felony convictions on their record is not so conclusively meritless as to have justified denying them a hearing.”

United States v. Haisten, Case No 21-1421, 2022 U.S.App.LEXIS 27771 (3d Cir., Oct. 5, 2022)

– Thomas L. Root

Biden Marijuana Clemency Brings Forth a Mouse – Update for October 11, 2022

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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.

BIDEN’S PENURIOUS POT PARDONS

mountainmouse221011President Biden last Thursday pardoned thousands of people convicted of simple possession of marijuana (a 21 USC § 844 offense) and said his administration would review whether marijuana should still be a Schedule I drug like heroin and LSD.

The pardons will clear everyone convicted on federal charges of simple possession in the last thirty years. They will help remove obstacles for people trying to get a job, find housing, apply to college or get federal benefits. Announced a month before the midterm elections, the pardons could help fire up the Democratic supporters.

But they won’t free a single federal inmate.

Officials said full data was not available but noted that about 6,500 people were convicted of simple possession between 1992 and 2021. Only 92 people were sentenced on federal marijuana possession charges in 2017, out of nearly 20,000 drug convictions, according to the U.S. Sentencing Commission. And not a one of them is currently in prison.

You may recall a Biden spokeswoman said in May 2021 that the Administration anticipated starting granting clemency under a new, improved process just before the midterm elections. There’s no sign of a better commutation process anywhere, and as for the clemency list, Aesop would have said, “The mountain has labored and brought forth a mouse.”

Administration officials said there are no people now serving time in federal prisons solely for marijuana possession. The pardon does not cover convictions for possession of other drugs, or for 21 USC § 841 or § 960 charges relating to growing or possessing marijuana with an intent to distribute. Biden also is not pardoning non-citizens who were in the U.S. without legal status at the time of their arrest.

Biden stopped short of calling for the complete decriminalization of marijuana, which is something that Congress would have to do (and could do if the Senate passes the MORE Act). In fact, he largely seems skeptical of marijuana, despite his announcement. He warned that “[e]ven as federal and local regulations of marijuana change, important limitations on trafficking, marketing, and under-age sales should stay in place.”

marijuanahell190918However, he directed his Administration to review how marijuana is legally categorized, which drives the level of sentence. “The federal government currently classifies marijuana as a Schedule 1 substance,” he said, “the same as heroin and LSD and more serious than fentanyl. It makes no sense.”

The Dept of Justice stated, “In coming days, the Office of the Pardon Attorney will begin implementing a process to provide impacted individuals with certificates of pardon. Also, in accordance with the President’s directive, Justice Department officials will work with our colleagues at the Department of Health and Human Services as they launch a scientific review of how marijuana is scheduled under federal law.”

The Washington Post said, “The Biden administration review of marijuana’s classification level, to be led by Health and Human Services Secretary Xavier Becerra and Attorney General Merrick Garland, could address long-standing questions over whether the possession of marijuana should ultimately be decriminalized at the federal level.”

Vox reported that Nishant Reddy, a former advisor to Sen. Cory Booker (D-NJ) on cannabis policy, said, “We’re just a few weeks away from midterm elections, so I do think there’s a little bit of strategic political play with this… That being said, it’s an exciting step in the right direction for those who are facing the negative consequences of unfair policing regarding cannabis.”

Attorney David Holland, executive director of Empire State NORML, sees it as Biden working toward cementing his progressive legacy rather than attempting to gain voter support.

“Biden doesn’t stand to gain anything by it, per se. This is only the midterm; he’s got another couple years to go. I think he’s trying to align himself with progressive politics that undo at least some of the harms of the drug war, and to set up a platform for two years from now that shows him to be a leader in causes relating to equity, justice, economic development, and so on.”

marijuana-dc211104Holland believes the more meaningful part of Biden’s announcement is the review and possible change in the federal status of cannabis as a controlled substance. “He’s setting the stage for future action,” says Holland. “There is definitely a paradigm shift coming over the next two years going into the 2024 election.”

Forbes last Friday quoted Andrew Freedman, executive director of the nonprofit Coalition for Cannabis Policy, Education and Regulation, as saying, “This could lead to a full descheduling, but I highly doubt that’s where it would end up. It’s more likely that the process ends up reclassifying marijuana as Schedule II, along with fentanyl, cocaine and methamphetamine, or perhaps Schedule III. If Congress decides to act, it could remove cannabis from the Controlled Substances Act and regulate it like alcohol and tobacco.”

“It’s a good sign that the Biden Administration is acknowledging that the current status quo is nonsensical,” says Freedman. “But I don’t think they’ve laid out a complete vision of where we go from here. There are current state markets that are operating; how do we catch up to that?”

While on the campaign trail, Biden said that marijuana should be decriminalized and that records should be expunged. Earlier this year, Biden granted nine people with federal marijuana offenses clemency.

Maritza Perez, director of the Drug Policy Alliance’s Office of Federal Affairs, said there should be fuller relief for people, including resentencing, expungement and removing immigration consequences. “It’s a step in the right direction, but definitely does not do enough to really help repair the harms of the drug war,” she said.

clemency170206Some federal inmates were harsher: “Federal marijuana inmates say they’re shocked that President Biden’s mass-pardon for pot offenders doesn’t actually help them — telling The Post that the historic clemency amounts to a “rancid” pre-midterm elections stunt and a “slap in the face” that fails to do what Biden promised as a candidate.

There are about 2,700 federal pot inmates, according to a recent congressional estimate, but none will get out because Biden’s pardon applies only to the roughly 6,500 people convicted federally of simple possession, of whom none are in prison, and to unknown thousands more convicted under local DC law.

One inmate told the Post that inmates at FMC Fort Worth “started cheering for us in here for weed” until “the initial glee turned into yet another let-down.”

“Biden fed us rancid hamburger and the media is celebrating as if he served up filet mignon,” an FCI Fort Dix inmate, whose 16-1/2 year marijuana conspiracy sentence ends in 2031, told the Post.

Amy Povah, founder of the CAN-DO Foundation, which advocates for clemency for non-violent offenders, told The Post, “I’m elated for [Biden’s] pardon recipients,” but “I can’t wait for those who are currently incarcerated and have survived a historic pandemic under tortuous conditions to get the relief they were promised, as well.”

mario170628Michael Pelletier, a 66-year-old wheelchair-bound paraplegic who got clemency from Trump, told The Post, “It breaks my heart knowing there are still people serving life without parole for cannabis. I hope Biden will free all pot prisoners because I personally know several people who voted for him based on that campaign promise alone.”

New York Times, Biden Pardons Thousands Convicted of Marijuana Possession Under Federal Law (October 6, 2022)

Associated Press, Biden pardons thousands for ‘simple possession’ of marijuana (October 7, 2022)

LISA, Biden To Ask Fox To Advise On Emptying Henhouse (May 26, 2021)

Washington Post, Your questions answered about Biden’s marijuana pardon announcement (October 7, 2022)\

Dept of Justice, Justice Department Statement on President’s Announcements Regarding Simple Possession of Marijuana (October 6, 2022)

Vox, The most important part of Biden’s surprise marijuana announcement (October 8, 2022)

USA Today, Many Americans arrested for marijuana won’t find relief under Biden’s pardon plan (October 7, 2022)

Forbes, President Biden Says It’s Time To Change America’s Cannabis Laws (October 7, 2022)

New York Post, ‘Slap in the face’: Pot inmates call Biden mass-pardon ‘rancid’ election ruse (October 7, 2022)

– Thomas L. Root

Sentencing Commission’s Back, And It Has Its Priorities – Update for October 4, 2022

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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.

SENTENCING COMMISSION PRIORITIES TO FOCUS ON COMPASSIONATE RELEASE, ACQUITTED CONDUCT GUIDELINE CHANGES

USSC170511Last week, the newly-reconstituted U.S. Sentencing Commission issued tentative policy priorities for the 2022-2023 amendment year. Unsurprisingly, amending the compassionate release Guideline is at the top of the list.

Most circuits have held that USSG § 1B1.13, the policy statement that once controlled compassionate releases, does not apply to inmate-filed motions. Just as the First Step Act – which first permitted inmates to file their own compassionate release motions – was passed, the Sentencing Commission lost its quorum and could not amend anything.

The announcement last week only proposes that the USSC should examine 1B1.13 and the other priorities. It does not propose what changes, if any, will be made. The Commission will issue detailed tentative amendments for public comment early next year. Final amendments will issue by May 1. Any amendment that is not voted down by the Senate (and a down-vote hardly ever happens) becomes effecting November 1, 2013, about 13 months from now.

guns200304The USSC also proposed to focus on changing firearms penalties under USSG § 2K2.1 in light of a new gun control law that created higher penalties for straw purchasers, felon-in-possession and other gun crimes; changing criminal history guidelines in light of studies on recidivism and difficulties applying the career offender provision, considering prohibiting the use of acquitted conduct in sentencing, changing the guidelines to permit more non-prison sentences for non-violent first offenders, and studying simplifying the guidelines while promoting the statutory purposes of sentencing.

Sentencing Commission, Notice of Proposed 2022-2023 Priorities (September 29, 2022)

– Thomas L. Root

COVID Emergency Too Good To End? – Update for September 30, 2022

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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.

WHO CARES ABOUT THE END OF THE PANDEMIC?

President Biden, a man who always carefully weighs his words, told CBS last week that “the pandemic is over. We still have a problem with Covid. We’re still doing a lot of work on it. It’s — but the pandemic is over.”

deadcovid210914Last week, Sen Roger Marshall (R-KS), who is an obstetrician/ gynecologist, introduced a resolution that would end the national emergency first declared by President Donald J. Trump in March 2020. President Biden extended the national emergency in February 2021 and again in February 2022. The resolution has virtually no chance of passing both houses of Congress.

And at yesterday’s Senate Judiciary Committee oversight hearing, Bureau of Prisons Director Colette S. Peters was braced by Sen Tom Cotton (R-AR), a bomb-thrower entranced by the sound of his own voice, who took time out from his off-topic argument with Sen Cory Booker (D-NJ) about who hated fentanyl more to demand that Peters admit that the pandemic was over. Director Peters wisely demurred.

So is the pandemic over? And does that really matter?

cotton171226Under the National Emergencies Act, a national emergency continues until (1) the president does not issue an annual continuation notice, (2) the president terminates it, or (3) a joint resolution of Congress terminates it. Because Biden most recently issued an annual continuation notice as of March 1, 2022, the national emergency will end on February 28, 2023 (absent additional action to extend it further or terminate it early).

All of this matters because CARES Act authority granted to the Bureau of Prisons to place prisoners on home confinement ends 30 days after the pandemic national emergency expires.

(Note: There are two emergencies out there.  One is the national emergency declared under the National Emergencies Act.  The other is the Covid-19 public health emergency, declared in January 2020 by the Health and Human Services Secretary and last extended in July 2022 for another 90 days. With all due respect to the coronavirus, the one we care about is the National Emergencies Act emergency. The Covid-19 public health emergency has no effect on Sec 12003 of the CARES Act).

The inmate rumor du jour for months has been that CARES Act placement has ended, will end imminently, or will end in February 2023. None of this is right, unless Biden declares the national emergency to be at an end. As of March 2020, 60 national emergencies had been declared since the National Emergencies Act was enacted in 1976. Over half of those have been renewed annually. The longest continuing national emergency dates back to Iran hostage crisis, 43 years ago.

But will the national emergency end in February 2023? The Wall Street Journal  last week suggested it would not:

moneyhum170419The reason is almost certainly money. [The CARES Act] enables the government to hand out billions of dollars in welfare benefits to millions of people as long as the emergency is in effect. This includes more generous food stamps and a restriction on state work requirements. It also limits states from removing from their Medicaid rolls individuals who are otherwise no longer financially eligible… Only weeks ago the Administration used a separate national emergency declaration related to the pandemic to legally justify canceling some $500 billion in student debt… Mr. Biden seems to want it both ways. He wants to reassure Americans tired of restrictions on their way of life that the pandemic is over and they can get on with their lives. But he wants to retain the official emergency so he can continue to expand the welfare state and force states to comply.

A final note.  Sen Richard Durbin, chairman of the Judiciary Committee, opened yesterday’s BOP oversight hearing by complaining, among other things, that the BOP had underused CARES Act and compassionate release authority.  Notwithstanding Sen. Cotton’s wacky views that the CARES Act has murderers and rapists again roaming our streets, there does not seem to be a lot of sentiment that CARES Act home confinement should end too soon.

CNN, Biden: ‘The pandemic is over’ (September 18, 2022)

Medical Economics, Senator moves to end COVID-19 pandemic national emergency (September 23, 2022)

Morgan Lewis, Preparing for the End of Covid-19 Emergency Periods: To-Dos for Plan Sponsors and Administrator (July 20, 2022)

Wall Street Journal, Is the Pandemic ‘Over,’ or Not? (September 19, 2022)

– Thomas L. Root

BOP Director to Be Grilled By Senate Judiciary Committee Today – Update for September 29, 2022

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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.

DURBIN TO GRILL BOP DIRECTOR AT THURSDAY JUDICIARY HEARING

peters220929When Colette Peters was sworn in last month as BOP director, her honeymoon with Sen Richard Durbin (D-IL), chairman of the Judiciary Committee, lasted all of three days.

Durbin’s dislike of prior Director Michael Carvajal was well known, and publicly, the Senator was elated at Peters’ appointment. But when Durbin learned the BOP had given Carvajal a 30-day consulting contract to assist the new director with the transition, he was much less enthused.

At the time, Durbin threatened to hold another oversight hearing on the BOP. He is about to make good on that threat.

The Judiciary Committee will conduct a BOP oversight hearing today. Peters is the primary witness, but other witnesses include Shane Fausey, President of the Council of Prison Locals national union; John Wetzel, a prison consultant and former head of the Pennsylvania Dept. of Corrections; and Cecilia Cardenas of Davenport, Iowa.

It is not clear who Ms. Cardenas is, but a person of that name and from that area was released by the BOP last January.

understaffed220929

Fausey is probably on the witness list because of his outspoken criticism of BOP staffing levels. Fausey told a reporter last week that much of the BOP staffing decline is due to declining morale as general environmental conditions are declining. He said BOP staff is “exhausted” as mandatory overtime has “skyrocketed” at high-security institutions across the country.

Last week, BOP employees at FCI Raybrook in upstate New York posted a sign along a highway there saying the federal prison is “dangerously understaffed” and asks the community if it feels safe.

I expect that a major topic of discussion will be the Federal Prison Oversight Act, introduced yesterday by Sens Jon Ossoff (D-GA), Mike Braun (R-IN), and  Durbin. The Federal Prison Oversight Act, according to a Durbin press release, will require the Dept of Justice’s Inspector General to

conduct comprehensive, risk-based inspections of the [BOP’s] 122 facilities to identify problems that affect incarcerated people and staff and to provide recommendations to address them.  It will require the IG to assign each facility a risk score, with higher-risk facilities required to be inspected more often.  Under the bill, the IG must also report its findings and recommendations to Congress and the public, and the BOP must respond to all inspection reports within 60 days with a corrective action plan.

The bill will also establish an Ombudsman within DOJ to investigate issues that adversely affect the health, safety, welfare, or rights of incarcerated people or staff, and who would report dangerous findings directly to the Attorney General and Congress.  The Ombudsman would also be tasked with creating a secure hotline and online form to be made available for family members, friends, and representatives of incarcerated people to submit complaints and inquiries regarding issues within BOP. 

forcedsex161202No doubt Peters will be asked pointed questions about sexual assault of female prisoners. Last week, she issued a statement saying she was “firm in my commitment to work with the BOP team, Department of Justice (DOJ) leadership, the Office of Inspector General (OIG), Congress, and others as I begin to assess and address issues and concerns pertaining to the BOP and the Federal Correctional Institution (FCI) Dublin.”

The former warden and four other FCI Dublin employees face criminal charges for sexually assaulting female inmates.

Peters may as well be asked about the sexual assault scandal at FMC Carswell, the only medical center for women in the BOP system. The Ft Worth Star-Telegram last week reported that a former federal Bureau of Prisons staff member who pleaded guilty to raping two women at a prison in Fort Worth was sentenced to 18 months in prison — half the time one of his victims is serving for drug possession.

Luis Curiel pleaded guilty to two counts of sexual abuse of a ward while he was a lieutenant at Carswell. He was sentenced to concurrent 18 months for each charge. According to court documents, Curiel admitted to meeting three women at separate times near a staff elevator and forcing them into sexual acts.

If the Committee runs short of topics for Director Peters, it may inquire about an Oklahoma City TV report last week that a widow is still seeking answers about her husband’s death at FTC Oklahoma City.

missingcorpse220929Nearly two weeks after Jonathan Patterson Days died suddenly at the FTC, his wife told reporters says she still doesn’t know what happened to him and the facility hasn’t returned his body.

Abbie Alvarado-Patterson said she asked the chaplain, “when do I get his body back? He said, ‘you want his body back?’” She said the BOP chaplain couldn’t give her any additional information about what happened, including a timeline for returning the body

Associated Press, Senate to hold hearing on crisis-plagued federal prisons (August 5, 2022)

Senate Judiciary Committee, Hearing Notice (September 29, 2022)

Associated Press, Senators push new oversight to combat federal prison crises (September 28, 2022)

Press Release, Durbin, Ossoff, Braun Introduce Bipartisan Bill To Overhaul Federal Prison Oversight (September 28, 2022)

News Nation, Experts warn prison staff shortage put lives at risk (September 23, 2022)

KTVU-TV, Prison director vows to ‘change the culture’ at FCI Dublin (September 23, 2022)

Ft Worth Star-Telegram, Fort Worth prison officer gets lighter sentence for assault than victim’s drug sentence (September 20, 2022)

KFOR-TV, ‘This man was loved’: Wife demands answers after husband dies in federal custody (September 21, 2022)

– Thomas L. Root

Nine Justices Get Back to Work – Update for September 27, 2022

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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.

SCOTUS ‘ENDLESS SUMMER’ ENDS

The Supreme Court brings its three-month recess to an end tomorrow, when the Justices will hold the Court’s annual “long conference.”

vacationSCOTUS180924Throughout the year, the Justices meet on a nearly weekly basis to consider pending petitions for certiorari. But that practice ends in late June when the Court breaks for the summer. Then, petitions pile up over the summer.

At the annual “long conference,” held the week before the Court begins its next term, the Justices will typically dispose of about 2,000 pending petitions. A research paper published seven years ago in the Law and Society Review found that the petitions arriving over the summer had a 16% worse chance of being accepted by the Court.

Gregory Garre, Solicitor General during the George W. Bush administration, told The New York Times, “Given the numbers, as counsel, you really have to try your best to avoid the summer list, though sometimes it is unavoidable,” Garre said. “Fortunately, as tough as the odds are, the cream can still rise to the top.”

The Court convenes to begin October Term 2022 (the name of the nine-month term ending June 30, 2023) next Monday.

49 Law and Society Review, Seasonal Affective Disorder: Clerk Training and the Success of Supreme Court Certiorari Petitions (August 27, 2015)

New York Times, Supreme Court’s End-of-Summer Conference: Where Appeals ‘Go to Die’ (August 31, 2015)

– Thomas L. Root