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Doc Feelgood Feels Better in Wake of Ruan Decision – Update for June 30, 2022

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

WHAT’S UP, DOC?

Almost everyone has heard lurid stories about doctors running pain clinics who operate as nothing more than drug dealers. Busloads of people from out of state unload every day, lining up for five-minute “appointments” that come with prescriptions for powerful opioid painkillers, filthy “clinics” accepting only cash but having hours from 6 a.m. to midnight… The surge in opioid distribution in America is, to use an ironic term, sobering: between 2006 and 2012, 76 billion doses were sold in America, about 230 pills for every person in America.

doritos220630As USA Today once put it

If it sounds like [drug] companies were dispensing dangerous drugs like candy or snack chips, well, they were. In one email exchange from 2009, a former Mallinckrodt national account manager, Victor Borelli, told a customer that 1,200 bottles of oxycodone 30 milligram pills had been shipped. “Keep ’em coming!” the customer responded. “Flyin’ out of here. It’s like people are addicted to these things or something. Oh, wait, people are.” To which Borelli responded: “Just like Doritos keep eating. We’ll make more.”

But there’s always an “on the other hand,” and this issue is not an exception. Finding doctors who have crossed the line by counting the number of opioid prescriptions issued runs the risk of sweeping up physicians who practice responsibly albeit on the cutting edge of pain management. And it can cause a chilling effect, leading “good providers to fear that they will be taken as bad actors even when exercising their best judgment in caring for their patients,” according to a Supreme Court brief filed in the National Pain Advocacy Center.

No one wants to ask, “What’s up, Doc?” only to hear, “I’m afraid to say.”

bugs220701Last Monday, the Supreme Court decided in Ruan v. United States that when a criminal defendant is authorized to dispense controlled substances — such as a doctor who may lawfully prescribe medications — prosecutors can only win a conviction under 21 USC 841 by proving beyond a reasonable doubt that the defendant intended to act or knew he or she was acting in an unauthorized manner.

The Court ruled 9-0 in favor of Xiulu Ruan and Shakeel Kahn, who had argued in appealing their convictions that their trials were unfair because jurors were not required to consider whether the two physicians had “good faith” reasons to believe their numerous opioid prescriptions were medically valid.

Xiulu and Shakeel were physicians who had issued thousands of opioid prescriptions. Both were licensed to do so, but each was charged with a violation of 21 USC 841, which prohibits distribution of controlled substances “except as authorized.” The Government used the accepted standard for such dispensing cases, arguing that the specific prescriptions at issue were issued outside the bounds of the usual course of professional practice and not for a legitimate medical purpose.

quackdoc210707Section 841(a) begins with “[e]xcept as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally… dispense…” The Court ruled that “once a defendant meets the burden of producing evidence that his or her conduct was ‘authorized,’ the Government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner.” The Court ruled that the “knowingly or intentionally” requirement was necessary because a legal authorization to prescribe and distribute controlled substances “plays a ‘crucial’ role in separating innocent conduct — and, in the case of doctors, socially beneficial conduct — from wrongful conduct.” This “strong scienter requirement helps to diminish the risk of ‘overdeterrence,’ i.e., punishing acceptable and beneficial conduct that lies close to, but on the permissible side of, the criminal line.”

Writing about the decision, one physician – who is also a senior fellow at the Cato Institute – said,

There are always robust debates among clinicians regarding the proper and rational treatment of a host of conditions, from high blood pressure to diabetes to acute and chronic pain—and that patients and their clinical contexts vary—that there is no ONE RIGHT WAY to treat a wide range of medical conditions, treatment must be individualized, and clinicians must remain open to modifications and adjustments along the way. In Ruan vs. United States, the government failed to consider this.

Prescribing medications in an unusual manner, or a manner that falls outside the mainstream, might be a “standard of care” or malpractice issue, but should not be automatically considered a criminal issue. Approximately 20 percent of medications approved by the Food and Drug Administration (FDA) are legally prescribed “off‐label,” i.e., for different purposes than those for which the FDA approved them. The originators of off‐label uses fall outside the mainstream of prescribers, but they are not treated as criminals. And many off‐label uses are later approved by the FDA. This is one of the ways clinical medical science advances.

feelgood160805Even in this 9-0 opinion, there was dissension on the Court. Justice Alito, in a concurring opinion joined by Justice Thomas and partially joined by Justice Barrett, complained that the majority had made things too difficult and thus produced a muddle:

In criminal law, the distinction between the elements of an offense and an affirmative defense is well-known and important. In these cases, however, the Court recognizes a new hybrid that has some characteristics of an element and some characteristics of an affirmative defense. The consequences of this innovation are hard to foresee, but the result may well be confusion and disruption. That risk is entirely unnecessary.

In Alito’s view, the Controlled Substances Act should be interpreted like its predecessor. The Harrison Narcotics Act provided that “[a]registered physician acts ‘in the course of his professional practice’ when the physician writes prescriptions ‘in good faith,’” Alito wrote. “I would hold that this rule applies under the CSA and would therefore vacate the judgment.”

Ruan v. United States, Case No. 20-1410, 21-5261, 2022 U.S. LEXIS 3089 (June 27, 2022)

Cato Institute, Supreme Court Sets Higher Bar for Prosecuting Doctors Who Prescribe Opioids for Pain (June 27, 2022)

Reuters, U.S. Supreme Court sides with doctors challenging opioid convictions (June 27, 2022)

– Thomas L. Root

Concepcion’s Concept: Discretion on Resentencing is Presumed – Update for June 29, 2022

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

DOES CONCEPCION HOLD LESSONS FOR COMPASSIONATE RELEASE?

The Supreme Court ruled on the final two criminal cases of the term on Monday (although there are six more October Term 2021 cases yet to be decided before the end of the week).

crack-coke200804Back in 2009, Carlos Concepcion pled guilty to distributing at least five grams of crack cocaine, and was sentenced to 228 months in prison. The following year, Congress passed the Fair Sentencing Act, which brought crack sentences more in line with powder cocaine sentences, down from a 100:1 ratio to an 18:1 ratio.

But the Fair Sentencing Act was not retroactive, so people sentenced before it was passed – like Carlos – could not benefit from it. Only when the First Step Act (FSA) passed in 2018 were the benefits of the Fair Sentencing Act extended to the Carlos Concepcions of the world.

Under FSA § 404, Carlos was entitled to apply to his sentencing court for resentencing at a lower level. Like most inmates – whose resources are only sufficient to pay for some telephone calls home and a few items in the commissary – Carlos could not afford a lawyer, so he filed pro se.

careeroffender22062Complicating Carlos’s case was the fact that under the advisory Sentencing Guidelines, he was deemed to be a career offender. Career offender status, a label that is easily applied to people who have hardly spent their lives as a criminal, sends a defendant’s minimum sentencing range guideline into low earth orbit. Carlos’s range was no exception. Under the statute, Carlos faced a minimum 5-year sentence, but his advisory sentencing range as a Guidelines career offender started at 17½ years.

The government argued that Carlos’s Guidelines sentencing range did not change despite the fact that the Fair Sentencing Act lowered his minimum sentence to zero, because the career offender guidelines were not based on drug amount or statutory minimum sentences. Carlos responded that he should no longer be considered a career offender because one of his prior convictions was vacated and his prison record showed evidence of rehabilitation through his participation in drug and vocational programs, spiritual growth, and a solid reentry plan.

Carlos’s sentencing judge sided with the government, holding that because Carlos’s sentencing range remained the same, Carlos could not rely on the Fair Sentencing Act for a lower sentence.

Last Monday, the Supreme Court ruled in favor of Carlos. Justice Sonia Sotomayor, writing for a 5-4 majority, said that “Federal courts historically have exercised… broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”

discretion220629Congress did nothing in the First Step Act to “contravene this well-established sentencing practice,” Sotomayor said. “Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, argues that the Concepcion ruling has an impact well outside the seemingly limited FSA Sec. 404 resentencing. “Specifically,” he wrote, “I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.

Berman noted:

There is a deep circuit split about whether non-retroactive changes in sentencing law may constitute “extraordinary and compelling reasons” for compassionate release. Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute ‘extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise. And yet, this language from the Supreme Court’s opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained…

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution….

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much…. Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

Berman argues that the Supreme Court’s language about a sentencing judge’s broad discretion “when considering a sentence modification is directly relevant to federal judges’ consideration of so-called compassionate release motions.”

compassion160124There is nothing in 18 USC § 3582(c)(1)(A)(i) (the statute on sentence reductions, generally if inaccurately known as “compassionate releases”) that in any way limits a judge in what he or she may consider in fashioning a lower sentence, or for that matter, in deciding whether to impose a lower sentence at all. That should be game, set and match for the issue of the limits of a court’s discretion on deciding a compassionate release motion.

One interesting twist: the Sentencing Commission will soon be reconstituted, and it seems clear that the new commissioners consider rewriting U.S.S.G. § 1B1.13 – the Guidelines policy statement on compassionate releases – as job one. If a rewritten § 1B1.13 limits a sentencing court’s discretion in granting or denying a compassionate release motion, would such a limitation be one “set forth by Congress in a statute or by the Constitution?” Sentencing Guidelines must be submitted to Congress, but go into effect unless the Senate otherwise directs. And the compassionate release statute requires a sentencing judge to ensure that any sentence reduction “is consistent with applicable policy statements issued by the Sentencing Commission.”

But that’s a question for another time (specifically, after a new § 1B1.13 goes into effect, which probably will not be before November 2023. For now, movants for compassionate release would do well to apply Prof. Berman’s broad interpretation of Concepcion’s holding.

Concepcion v. United States, Case No 20-1650, 2022 U.S. LEXIS 3070 (June 27, 2022)

ABA Journal, In unusual lineup, SCOTUS rules for pro se prisoner who sought lower sentence under First Step Act (June 27, 2022)

Sentencing Law and Policy, SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors (June 27, 2022)

– Thomas L. Root

DOJ’s Post-CARES Act Rule Proposal Leaves Out The Important Stuff – Update for June 27, 2022

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

DOJ PROPOSES RULE TO GIVE BOP DISCRETION ON ORDERING CARES ACT HOME CONFINEES TO RETURN TO PRISON

nogoingback210208Almost everyone was relieved last December when the Dept of Justice’s Office of Legal Counsel rescinded its Trump-era opinion that people on CARES Act home confinement would not have to return to prison when the COVID-19 emergency ends.

Unfortunately, there was an “easter egg” in that opinion. In a statement that accompanied release of the opinion, Attorney General Merrick Garland said DOJ would issue rules to ensure that those “who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”

At the time, Ohio State Univ law professor Doug Berman said in his Sentencing Law and Policy blog, “I am not sure how that rulemaking process will work, but I am sure the AG statement is hinting (or flat-out saying) that there will still be some in the ‘home confinement cohort’ who may need to worry about eventually heading back to federal prison.”

Last week, the chickens started coming home, but not precisely as the AG suggested. In a Notice Of Proposed Rulemaking (NPRM), the DOJ proposed that after the COVID-19 national emergency ends, the BOP Director would have delegated authority to let “any prisoner placed in home confinement under the CARES Act who is not yet otherwise eligible for home confinement under separate statutory authority to remain in home confinement under the CARES Act for the remainder of her sentence, as the Director determines appropriate.”

arbitrary220627So far, so good. The problem, however, is that the NPRM does not propose the criteria the BOP should use to decide who stays home and who returns. Instead, the NPRM promises that “following the issuance of a final rule, the Bureau will develop, in consultation with the Department, guidance to explain criteria that it will use to make individualized determinations as to whether any inmate placed in home confinement under the CARES Act should be returned to secure custody.”

The devil’s in the details; here, DOJ has apparently decided that the criteria for keeping folks at home will remain opaque to public comment and judicial review. For anyone who lived through the moving targets that were the original CARES Act home confinement criteria in the early days of COVID, this suggests a continuation of an arbitrary and confusing system for returning home confinement people to prison.

The good news is that DOJ – noting that over 4,900 inmates had been placed in home confinement under the CARES Act, with 2,826 of them having release dates over 12 months away – said it intended that CARES Act placement will “for the duration of the covered emergency period.”

covidneverend220627When will the COVID-19 emergency end? Walter Pavlo said last week that while no one knows for sure, “one can bet that it will not be before the mid-term elections in November and could likely extend through another COVID-19/flu season of 2023.” Given that 55% of all national emergencies declared in the last century are still in effect (including six over 25 years old), the end of the COVID-19 emergency probably will not come soon.

Meanwhile, a bit of irony: We reported on May 11th about a lawsuit in Connecticut challenging the removal of an inmate from CARES Act home confinement without a hearing. The government has moved to dismiss the habeas corpus action. A hearing on the dismissal motion set for June 15 was postponed because the government’s attorney was too ill with COVID to attend.

DOJ, Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency (December 21, 2021)

Sentencing Law and Policy, New OLC opinion memo concluding CARES Act “grants BOP discretion to permit prisoners in extended home confinement to remain there” (December 21, 2021)

DOJ, Statement by Attorney General Merrick B. Garland (December 21, 2021)

DOJ, Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 87 FR 36787 (June 21, 2022)

Forbes, Department of Justice Proposes Final Rule to End CARES Act for Home Confinement for Federal Prisoners (June 25, 2022)

Order (ECF 27), Tompkins v. Pullen, Case No 3:22cv339 (D.Conn)

– Thomas L. Root

USSC Channels Captain Obvious on Recidivism – Update for June 24, 2022

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

FUN WITH NUMBERS

funwithnumbers170511While it awaits the approval of the slate of new members, the United States Sentencing Commission remains busy. With a staff of lawyers, actuaries and policy wonks, the USSC continues to crank out studies that provide some pretty useful data for those seeking to make a point with their sentencing judges.

This week, the USSC issued a seventh recidivism study, this one an examination of the relationship between the length of incarceration and recidivism. Two years ago, the USSC issued a report on federal offenders released in 2005, finding that people receiving sentences of more than 60 months were less likely to recidivate compared to people receiving shorter sentences.

The new study replicates the previous study, which in itself is useful as a check on the accuracy of the prior results. Focused on over 32,000 people released in 2010, the USSC studied whether incarceration has a deterrent effect, a criminogenic effect, or no effect at all.

A “criminogenic” effect would mean that incarceration is likely to cause recidivism rather than deter it.

obvious191031The findings may seem self-evident to many, but in the real world, even Captain Obvious sometimes needs validation. The study found that people sentenced to less than 60 months were neither more nor less likely to be recidivists as a result of their incarceration. But folks sentenced to more than 60 months but less than 120 months were 18% less likely to commit a new offense after release than similar people receiving shorter sentences. For people who served more than 120 months, the likelihood of recidivism was even less, 29% lower compared to offenders receiving shorter sentences.

The National Institute for Justice has previously noted that “policymakers and practitioners believe that increasing the severity of the prison experience enhances the ‘chastening’ effect, thereby making individuals convicted of an offense less likely to commit crimes in the future.” Only nine years ago, criminologist Daniel S. Nagin wrote, “Scientists have found no evidence for the chastening effect… Studies show that for most individuals convicted of a crime, short to moderate prison sentences may be a deterrent but longer prison terms produce only a limited deterrent effect…”

recividists160314The two USSC studies, however, suggest the opposite. To be sure, the difference in recidivism reduction begins to flatten – a 60-120 month sentence gets you an 18% reduction while 120-plus only adds 11 points more. Still, the gain from 18%to 29% could be convincing to a court deciding that someone – especially with a prior record – would benefit from over a decade on ice to cure him or her of criminal predispositions.

U.S. Sentencing Commission, Length of Incarceration And Recidivism (June 20, 2022)

Sentencing Law and Policy, US Sentencing Commission releases another report on “Length of Incarceration and Recidivism” (June 21, 2022)

National Institute for Justice, Five Things About Deterrence (June 5, 2016)

Nagin, Daniel S., Deterrence in the Twenty-First Century (Crime and Justice in America: 1975-2025), M. Tonry, ed, Chicago, Ilinois: University of Chicago Press (2013)

– Thomas L. Root

A 924(c) Conviction in 9th Circuit Ends Not With a Bang But a Whimper – Update for June 23, 2022

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

‘BOOM’ TIMES IN THE 9TH CIRCUIT
Rick's bomb was neither pink nor make of Creamsicles.
Rick’s bomb was neither pink nor make of Creamsicles.

In 1990, Richard Mathews set a bomb to blow up the leader of a  motorcycle gang that has expelled him (probably not for being a pacifist).

Unfortunately for everyone (except the gang leader), the bomb blew up a passerby instead of its target, seriously injuring him.

Rick was convicted of maliciously damaging property by means of an explosive in violation of 18 U.S.C. § 844(i) and of using or carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). (In the federal government’s world, a “firearm” under § 924(c) includes a “destructive device” such as a pipe bomb filled with black powder and ball bearings).

Rick got 135 months for the § 844 violation and a mandatory 360-month consecutive sentence for the § 924(c).

Last week, the 9th Circuit vacated Rick’s § 924(c) conviction.

A conviction under § 844(i) is not categorically a crime of violence, the Circuit said, and thus cannot serve as a predicate crime for a § 924(c) conviction. Section 924(c) defines a crime of violence as an offense committed against “the person or property of another.” However, the 9th observed, a person can be convicted under § 844(i) for “using an explosive to destroy his or her own property.” As such, Section 844(i) “criminalizes conduct that falls outside Section 924(c)’s definition of ‘crime of violence.’”

The average Joe or Jane would think that blowing someone up with a homemade is very much a “crime of violence.” Even the Circuit noted,

violent170315No doubt it is strange to classify placing a bomb in an alleyway for the purpose of causing harm to another person or their property as not a crime of violence, particularly where the bomb was picked up by an innocent bystander who was seriously injured by the detonation. But that is what the law requires of us in this case. 

Rick is probably not going home any time soon. The district court will be free to adjust his § 844(i) sentence – which can span from 10 to 40 years – to achieve nearly the same end.

United States v. Mathews, Case No. 19-56110, 2022 U.S. App. LEXIS 16167 (9th Cir, June 13, 2022)

– Thomas L. Root

Attempted Crime of Violence Does Not Support 18 USC 924(c) – Update for June 22, 2022

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

TAYLOR-MADE DECISION

The Supreme Court ruled yesterday in a 7-2 decision that an attempt to commit a crime of violence is not in itself a “crime of violence” for purposes of 18 USC § 924(c).

gunknot181009A little review: under 18 USC § 924(c), possessing, using or carrying a gun during and in relation to a crime of violence or drug offense will earn a defendant a mandatory minimum consecutive sentence of at least five years (and much worse if the defendant waves it around or fires it). A “crime of violence” is one that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

This fairly straightforward question of what constitutes a crime of violence has spawned a series of Supreme Court decisions since Johnson v. United States in 2015. The last words on the subject were United States v. Davis, a 2019 decision holding that conspiracy to commit a crime of violence was not a “crime of violence” that would support a conviction under 18 USC § 924(c), and last summer’s Borden v. United States (an offense that can be committed recklessly cannot be a “crime of violence,” because a “crime of violence” has to be committed knowingly or intentionally).

The Court has directed that interpretation of whether a statute constitutes a crime of violence is a decision made categorically. The Court’s “categorical approach” determines whether a federal felony may serve as a predicate “crime of violence” within the meaning of the statute if it “has as an element the use, attempted use, or threatened use of physical force.” This definition is commonly known as the “elements” clause.

The question is not how any particular defendant may have committed the crime. Instead, the issue is whether the federal felony that was charged requires the government to prove beyond a reasonable doubt as an element of its case, that the defendant used, attempted to use, or threatened to use force.

knifegunB170404This approach has caused a lot of mischief. The facts underlying yesterday’s decision, Taylor v. United States, were particularly ugly. Justin Taylor, the defendant, went to a drug buy intending to rip off the seller of his drugs. Before he could try to rob the seller, the seller smelled a setup, and a gunfight erupted. Justin was wounded. The drug dealer was killed.

Because Justin never actually robbed the seller – he didn’t have time to do so – he was convicted of an attempted Hobbs Act robbery under 18 USC § 1951 (a robbery that affects interstate commerce) and of an 18 USC § 924(c) offense for using a gun during a crime of violence. Justin argued that while he was guilty of the attempted Hobbs Act robbery, he could not be convicted of a § 924(c) offense because it’s possible to commit an attempted robbery without actually using or threatening to commit a violent act. Under Borden and Davis, Justin argued, merely attempting a crime of violence was not itself a crime of violence.

Yesterday, the Supreme Court agreed.

Justice Gorsuch ruled that an attempted Hobbs Act robbery does not satisfy the “elements clause.” To secure a conviction for attempted Hobbs Act robbery, the government must prove that the defendant intended to complete the offense and completed a “substantial step” toward that end. An intention, the Court said, is just that and no more. And whatever a “substantial step” requires, it does not require the government to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property. This is true even if the facts would allow the government to do so in many cases (as it obviously could have done in Taylor’s case).

maskgun200218The Court cited the Model Penal Code’s explanation of common-law robbery, which Justice Gorsuch called an “analogue” to the Hobbs Act. The MPC notes that “there will be cases, appropriately reached by a charge of attempted robbery, where the actor does not actually harm anyone or even threaten harm.” Likewise, the Supreme Court ruled, no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force.

Taylor raises interesting questions about “aiding and abetting.” In Rosemond v. United States, the Supreme Court ruled that a defendant can be convicted as an aider and abettor under 18 USC § 2 “without proof that he participated in each and every element of the offense.” Instead, Congress used language in the statute that “comprehends all assistance rendered by words, acts, encouragement, support, or presence… even if that aid relates to only one (or some) of a crime’s phases or elements.”

Taylor’s finding that attempted Hobbs Act robbery cannot support a § 924(c) conviction because a defendant can be convicted of the attempt without proof that he or she used, attempted to use, or threatened to use force, then it stands to reason that if the defendant can be convicted of aiding or abetting a Hobbs Act robbery without proof that he or she used, attempted to use, or threatened to use force, “aiding and abetting” likewise will not support a § 924(c) conviction.

In separate dissents, Justice Clarence Thomas and Justice Samuel Alito argued that the lower court should have been reversed. Justice Thomas said the court’s holding “exemplifies just how this Court’s ‘categorical approach’ has led the Federal Judiciary on a ‘journey Through the Looking Glass,’ during which we have found many ‘strange things.’”

violence180508Indeed, a layperson would find it baffling that Justin could shoot his target to death without the government being able to prove he used a gun in a crime of violence. But Justice Thomas’s ire is misplaced. One should not blame the sword for the hand that wields it. Congress wrote the statute. It can surely change it if it is not satisfied with how the Court says its plain terms require its application.

United States v. Taylor, Case No. 20-1459 2022 U.S. LEXIS 3017 (June 21, 2022).

– Thomas L. Root

ETC-Eligible Inmates May All Be ‘Above Average’ – Update for June 21, 2022

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

BOP FILING IN HABEAS CASE EXPLAINS INTERIM EARNED-TIME CREDIT POLICY

keillor220621Back before Prairie Home Companion humorist Garrison Keillor had not yet been ‘canceled’ for lusting after women in his heart (or whatever the crime might have been), he created Lake Wobegon, a place where all the women were strong, the men were handsome, and the children were above average. The setting gave its name to the “Wobegon Effect,” a prejudice of superiority also known as illusory superiority.

The BOP – due to sloth, being overwhelmed by events, or by design – may have instituted its own version of the phenomenon. Let’s call it the ‘ETC Effect.”

Recall that the First Step Act mandated that the BOP assess all inmates for their likelihood of recidivism and programming needs.  Prisoners would then complete evidence-based recidivism reduction programming (EBRRs) that would address their needs and make them less likely to reoffend.

To encourage inmates to complete the programming, the BOP would award eligible inmates (and Congress exempted about half of all inmates from the program, probably to look good to those criminal-hating voters back home), First Step directed the BOP to issue ETCs. An inmate can earn from 10 to 15 days a month in ETCs for each 30 days spent in an EBRR or in pursuit of specified “productive activities.” The first 365 days’ worth of ETCs will reduce an eligible inmate’s sentence by up to a year.  Any ETCs beyond that can be used for extra home confinement or halfway house.

Jailbreak done right.
Early release through ETCs – a jailbreak done right.

When the BOP announced its final rules on EBRRs and ETCs in January, it specified that ETCs could be earned from the day First Step became law (December 21, 2018). This meant that a thundering herd of inmates who were close to their release date probably should already be home once their ETCs were applied. In fact, the BOP released a lot of inmates in the days and weeks following adoption of the rules.  But since then, those still in prison have been complaining loudly that their ETC credits have not been applied.

Which brings us to Bob Stewart. Bob got his ETC calculation from the BOP last January, learning he had 75 days of credit as of Christmas Day 2021. But his release falls in October 2022. He argued that this imminent date makes continuous updating of his credits necessary.  The BOP, which has been calculating ETCs inmate-by-inmate in a manual process, told Bob that he would not get an update until sometime in the future when the agency implemented a new “auto-calculation” programming.

Bob brought a habeas corpus action in federal court, arguing that had another 60 days coming as of the filing date in March 2022, and that he was continuing to earn days on a rolling basis until his release date.

The BOP moved to dismiss the action, arguing essentially that Bob would just have to wait for “auto-calc” like everyone else. Included with its filing was a fascinating declaration from Susan Giddings, a BOP official, explaining BOP interim policy.

Susan said that everyone got one manual calculation, and Bob had gotten his. After that, everyone had to wait until the BOP completed installation of its “auto-calculation application to BOP’s real-time information system (known as SENTRY) and full integration between SENTRY and BOP’s case management system (known as INSIGHT).” She estimated that  “auto-calc” would be live by about August 1.

participation220621As interesting was her revelation that every ETC-eligible inmate was getting ETC credit from the day First Step passed or the inmate’s first day in prison, whichever was later. The grant appears to be independent of whether the inmate completed any programming during that time or not.

Bob’s district court was not impressed by the BOP’s reasoning that the law would just have to wait for the agency’s programmers. It ordered the BOP to recalculate Bob’s ETCs every 60 days, whether the “auto-calculation application” was working or not.

The Magistrate’s Report, adopted in full by the District Judge, said,

it is unclear when the automated system will be up and running. While it could be within the next 90 days, that is not guaranteed, and Respondent even hedges this statement with the caveat ‘absent unforeseen circumstances.’ Thus, the assertion that Stewart will receive these credits within the next couple months, i.e., in time for them to impact the remainder of his sentence, is speculative

Now for the interesting part. Susan revealed that the BOP is granting ETCs to every eligible inmate from the day First Step passed or the inmate’s first day in prison (whichever was later), whether any programs have been completed or not.  I have had several inmates confirm this. One disgustedly told me, “There’s this guy in the unit who is asleep in his bunk all day and night, except for meals. He got the same number of ETCs – like 540 or so – everyone else got.”

musicstops220623What this means, in other words, is that every eligible inmate is successfully reducing his or her recidivism risk, every eligible inmate is excelling in productive activities, and – in fact – every eligible inmate is not only eligible, but above average.

Far be it from me to complain when any BOP program works to the benefit of inmates, but still, this is not how it is supposed to work. Someday, maybe someday soon, the music will stop.  That will undoubtedly be an unpleasant jolt to the guy asleep in the top bunk… and to everyone else.

Stewart v. Snider, Case No. 1:22cv294, 2022 US Dist. LEXIS 100512 (N.D. Ala, May 10, 2022) (Magistrate’s Report)

Stewart v. Snider, Case No. 1:22cv294, 2022 US Dist. LEXIS 100482 (N.D. Ala, June 6, 2022( (District Court order)

Giddings Declaration, ECF 11-14, Case No. 1:22cv294, (N.D. Ala, filed Apr 29, 2022)

– Thomas L. Root

Supreme Court’s Final Days Include Criminal Decisions – Update for June 20, 2022

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

BIG CRIMINAL DECISIONS STILL PENDING WITH ONLY TWO WEEKS OF SCOTUS TERM LEFT

The Supreme Court held two opinion days last week, but the most-watched criminal cases – United States v. Taylor, Concepcion v. United States and Ruan v. United States – remain among the 18 opinions yet to be issued before the Court’s term ends on June 30.

scotus161130Most people expect the two “big” cases, New York State Rifle & Pistol Assn v. Bruen (a 2nd Amendment case) and Dobbs v. Jackson Women’s Health Organization (the possibly-leaked abortion decision) to happen on the last day. But Taylor, which concerns whether an attempted offense that would be a “crime of violence” for application of 18 U.S.C. § 924(c) – the mandatory consecutive sentence for using a gun – is a “crime of violence” if it is only attempted but not completed – has been hanging around for six months since its December argument. Concepcion, which concerns proper resentencing considerations in First Step Section 404(b) resentencing, and Ruan, which considers physician liability under 21 USC 841(a), was argued in the Court’s February sitting.

Ohio State University law professor Doug Berman wrote last week in his Sentencing Law and Policy blog that “the standard and ready explanation, of course, for why decisions in Taylor and Conception may be taking a long time is because the Justices are (perhaps deeply?) divided in these cases, and so we should expect multiple (and lengthy?) opinions. And, to add a bit of spicy speculation, I am inclined to guess that the delay is also partially a function of the Justices in these cases not being divided neatly along the “standard” ideological lines.”

rules201202The only case of interest to defendants last week was Kemp v. United States. In that case, petitioner Dexter Kemp filed a 28 USC 2255 motion in 2015. The District Court dismissed the motion as untimely, and Dix did not appeal. But three years later, he sought to reopen his 2255 under Federal Rule of Civil Procedure 60(b)(1) and (6), rules which permit a court to reopen an otherwise final judgment if certain conditions are met. A 60(b)(1) motion has to allege that a mistake was made, and must be filed within a year, Relief under Rule 60(b)(6) for any other just reason can be filed at any time, but is available only when the other grounds for relief specified in the Rule don’t apply.

Dex was right that the District Court had goofed on dismissing his § 2255 motion as untimely. In a just world, his § 2255 should be reopened, and that would be that. But in the real world, it’s not that easy.

The Supreme Court held that a judge’s error of law is a “mistake” within the meaning of Rule 60(b)(1), meaning that Dex’s motion fit under Rule 60(b)(1). Subject to the Rule’s one-year limitations period, Dex’s motion was late and had to be dismissed as untimely.

Sentencing Law and Policy, Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Conception, two little sentencing cases? (June 13, 2022)

Kemp v. United States, Case No. 21-5726, 2022 U.S. LEXIS 2835 (June 13, 2022)

– Thomas L. Root

Batting Cleanup for LISA… – Update for June 17, 2022

wahoo220617We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, we’re cleaning up the week with some odds and ends left over from the week before…

Judiciary Committee Grills Sentencing Committee Nominees: President Biden’s seven nominees to the U.S. Sentencing Commission promised at a Senate hearing last week to prioritize implementing the First Step Act by amending the Guidelines, something the Commission had been unable to do since losing its quorum just as the 2018 law passed.

U.S. District Judge Carlton Reeves (S.D. Miss), nominated to be chairman of the USSC, told the Judiciary Committee that the Commission would also address what he called “troubling” divisions that emerged among courts on sentencing issues during the years it lacked a quorum.

Four Democrat and three Republican picks have been nominated to join the seven-member commission.

Senior U.S. District Judge Charles Breyer (N.D. Cal.), the lone remaining member of USSC, has complained that the Commission’s inability to update its compassionate release policy (USSC § 1B1.13) in light of First Step has resulted in inconsistent decisions across the nation on compassionate release amid the COVID-19 pandemic.

“Today, we take an important step to remedy that problem,” said Judiciary Committee chairman Sen Richard Durbin (D-IL).

Sen Marsha Blackburn (R-TN) jumped on one Democratic nominee, former U.S. District Judge John Gleeson. Gleeson, one of the most thoughtful and creative sentencing judges during his time on the E.D.N.Y. bench, has been a critic of mandatory minimum drug sentences.

“How can you possibly say that more lenient sentencing and reduced penalties for convicted criminals is the answer to our crime problems?” Blackburn complained. Gleeson, now a partner at a Wall Street law firm, responded that as a judge he tried only to show the impact mandatory sentences have on “the individualized sentencing that our system contemplates.”

pissfire220617Meanwhile, former federal defender Laura Mate, a director of the Federal Defenders’ Sentencing Resource Counsel Project, refused demands by Sen Josh Hawley (R-MO) to renounce a detailed 61-page letter to the Sentencing Commission she had co-signed in 2013. The letter had criticized mandatory minimums, especially for some child pornography offenses, with a detailed, well-reasoned argument.

Mate was pilloried by at least one YouTuber for politely dodging Hawley’s question, but given what I know of the good Senator from the Show-Me State, I would resist agreeing with him that the sun rises in the east, because he would end our exchange accusing me of causing dawn to arrive too early.

Republican USSC nominees include Claire McCusker Murray, a Justice Department official during the Trump era; Candice Wong, a federal prosecutor in Washington, D.C., and U.S. District Judge Claria Horn Boom of Kentucky.

The hearing suggests that the Senate will act soon on restoring a functional Sentencing Commission. However, as Ohio State University law professor Doug Berman observed in his Sentencing Law and Policy blog, “it is still unclear exactly when there will be a committee vote and then a full Senate vote on these nominees. I am hopeful these votes might take place this summer, but I should know better than to make any predictions about the pace of work by Congress.”

Senate Judiciary Committee, Hearing (June 8, 2022)

Reuters, Biden’s sentencing panel noms vow to implement criminal justice reform law (June 8, 2022)

Sentencing Law and Policy, Senate conducts hearing for nominees for US Sentencing Commission (June 8, 2022)

Federal Defenders, Letter to Sentencing Commission (July 15, 2013)

rockingchair220617Last Week Makes Mike Long for Retirement:  BOP Director Carvajal is probably giddy at the prospect that his replacement is finally waiting in the wings. 

Besides the USP Thomson investigation being announced last week, the BOP suffered some embarrassing press last week:

•  A Miami TV station reported on a CO’s claim that drones were being used to smuggle contraband into FDC Miami;

•  A Colorado paper reported that the BOP was paying $300,000 in damages to an ADX Florence inmate with Type 1 diabetes who alleged in a lawsuit that he had been denied adequate amounts of insulin;

•  A San Francisco area TV station reported that a former FCI Dublin inmate – who early on told BOP authorities about what has turned into a major sex abuse scandal featuring the arrest of a former warden and four other staffers – says she was punished in retaliation for calling out the staff abuse. “I will never tell another inmate that they should go to report anything to anyone higher up,” the former prisoner told KTVU. “Because all that’s going to happen is it’s going to make their life worse.”; and

•  A former correctional officer at the Federal Medical Center in Lexington, Kentucky, was sentenced to more than 11 years after pleading guilty to sexual abuse of inmates.

Finally, in February, Carvajal told a Congressional committee that the “common criticism” that the BOP is understaffed was a “narrative [that] is routinely misrepresented without reference to the factual data.” Two weeks ago, he told BOP staff in an agency-wide memo that “staffing levels are currently trending downward nationwide.”

Last week, Government Executive reported that the declines have happened in the last four months and that the employees who have quit cite “lack of training and lack of connection to the institution as reasons for their leaving the bureau within the first few years of service.”

Mike must be thinking that the old rocking chair is looking pretty good right now.

WQAD-TV, Justice Department Inspector General launches investigation into USP Thomson (June 9, 2022)

WTVJ, Inmates Attempted to Smuggle Contraband Using Drones, Correctional Officer Says (June 8, 2022)

Colorado Sun, Bureau of Prisons to pay $300,000 to settle lawsuit after diabetic prisoner was allegedly deprived of insulin at Supermax facility (June 7, 2022)

KTVU, Woman who reported Dublin prison sexual abuse claims she was target of retaliation (June 10, 2022)

Government Executive, Federal Prisons Are Losing Staff. The Bureau’s Director Would Like to Fix That By October (June 6, 2022)

– Thomas L. Root

ETC FUBAR at BOP, As New Director Search Finally Over – Update for June 16, 2022

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

BOP: DON’T CALL US, WE’LL CALL YOU ON EARNED TIME CREDIT CALCULATION

If there is a common refrain in emails coming into this Newsletter in the past several months, it is that inmates are not getting their earned-time-credit calculations from their Unit Teams.

don'tcallus220616A recap: The First Step Act authorized the award of credits to inmates who successfully complete programs that have been found to reduce recidivism. The acronym-crazy government calls them “EBRRs,” that is, “evidence-based recidivism reduction” programs. Inmates could receive “earned time credits” (ETCs) that will reduce their prison time up to a year, grant them more halfway house or home  confinement, and even get them more phone time and commissary.

(Confusingly, the government called ETCs “FTCs” for awhile – “federal time credits” – but seems to have settled on the preferred terminology now).

Inmates are classified using a system called PATTERN according to their likelihood of recidivism.  As they complete programs, age, and behave, their PATTERN score decreases, increasing the number of ETCs they may receive.

So all is roses in the BOP. Inmates are happily earning ETCs, the staff is contentedly helping prisoners forsake their prior evil ways…

FUBAR220616Right. In fact, implementation of ETCs (and awarding time off) is becime a FUBAR.

Last week, Walter Pavlo reported in Forbes on an internal BOP memo acknowledging the frustration:

Institutions are likely getting a lot of calls from outside family members and/or questions from the inmates themselves. We ask that you refrain from referring inmates or their family members to the DSCC or Central Office. As we move toward a fully automated auto-calculation process for the calculating and awarding of FTCs, neither the DSCC nor the Corrections Programs Branch are directly involved in the process.

Forbes said the memo directed institutions to give inmates and their family members a “canned response” asking “for their patience” during the implementation of an automated credit calculation system:

While all eligible inmates are able to earn credits, the Agency is prioritizing those inmates who are within 24 months of their Statutory Release date and eligible to both earn and apply Federal Time Credits. The Agency is in the final stages of development and testing of an auto-calculation app, and once finalized all eligible inmates will have their records updated and the Federal Time applied consistently with the Federal Rules language.

Late breaking news: The BOP has finally found someone who will admit to being considered for the director’s slot, replacing Michael Carvajal (whom Sen. Richard Durbin [D-IL] wants to usher into retirement as quickly as possible). 

Could MIke Carvajal finally be leaving the building?
Could MIke Carvajal finally be leaving the building?

The Oregon Capital Chronicle reported yesterday that Colette Peters, director of Oregon’s prison system, confirmed to the paper that she is a finalist for the BOP Director’s job.

She has been director of the Oregon Department of Corrections since 2012, where she is in charge of  4,400 employees and 12,124 prisoners.

As director of the Oregon prison system, she changed the agency’s reference to “inmates.” Oregon’s prisoners became “adults in custody.”

Forbes, As Biden Touts Action On First Step Act, Federal Prisoners Await Action From Bureau Of Prisons (June 4, 2022)

Oregon Capital Chronicle, Oregon’s prison director a finalist to lead federal prison system (June 15, 2022)

– Thomas L. Root