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Balancing Accounts For Unused ETC Credits – Update for June 2, 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.

DYER STRAITS

Three and a half years ago, the First Step Act became law amid great fanfare. One of the many provisions that held great promise for all concerned was the incentive-based programming scheme, that would let federal inmates earn credits that reduced their sentences for successful completion of programs designed to address their needs.

Such a program would reduce recidivism by ex-felons, thus benefitting both them and society.

mismanagement210419Trust the Federal Bureau of Prisons to turn a high-minded program into a furball. The BOP required almost two years to propose detailed rules for the implementation of the “earned time credit” program, rules which – by the way – were draconian in their application and reasonably calculated to strangle the ETC program before it began.

It took another 14 months (and a new Administration) for the BOP to finally adopt the rules, which rules – mercifully enough – did an about-face from what was proposed. But those rules, which among other things retroactively credited inmates with credit back to the day the First Step Act passed, created a whole new raft of problems.

Problems for people like Doug Dyer.  Doug was on CARES Act home confinement in December 2021 when he filed a petition for habeas corpus, demanding immediate release due to the application of First Step Act earned-time credits to which he claimed entitlement. The BOP had not yet adopted the new rules, and predictably, told the judge that Doug had nothing coming.

nothingcoming181018But a month after Doug’s filing the BOP adopted the final ETC rules. Doug (and thousands of other inmates) were credited with 540 ETC days. The same day the rules were adopted, the BOP granted Doug immediate release from home confinement (51 days before his normal release date). The government then moved to dismiss the habeas corpus as being moot, because Doug had gotten what he wanted.

Doug opposed the government’s motion, arguing that because only he could only use 51 days of credit out of the 540 he was awarded, he should get to use the balance to reduce his supervised release time.

The district court agreed, reducing his supervised release by 489 days. The court ruled “the relevant statutory provision provides that ‘[t]ime credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in… supervised release’. 18 U.S.C. § 3632(d)(4)(C). Therefore, the unambiguous, mandatory language of the statute provides that earned-time credits may be applied to a term of supervised release.”

So Doug got a year and a half off his supervised release time (about half of what he was to serve).

I generally don’t criticize a good pro-prisoner decision like this one, but Doug’s court is just plain wrong. The Court hung its hat on 18 U.S.C. § 3632(d)(4)(C), which says

Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.

There's nothing like getting your facts straight, Your Honor ...
There’s nothing like getting your facts straight, Your Honor… or the law, for that matter.

The District Court read this to mean that ETCs could be used to reduce the period of incarceration or supervised release. But the remainder of the subsection not only makes it clear that the term “supervised release” is being used as the alternative to “prerelease custody,” and that the subsection is to be read with reference to 18 U.S.C. § 3624(g).

And here’s the problem. Subsection 3624(g)(3) authorizes the Director of the BOP to “transfer the prisoner to begin any such term of supervised release at an earlier date, not to exceed 12 months, based on the application of time credits under section 3632.”  It does not authorize the Director to reduce the term of supervised release at all.

Read in conjunction with § 3624(g)(3), it’s pretty clear that § 3632(d)(4)(C)’s reference to “shall be applied toward time in prerelease custody or supervised release” is intended to mean the three options the BOP has for applying ETC credits: more halfway house or home confinement (the “prerelease custody” option) or release from custody up to 12 months early to begin one’s supervised release.

puzzled171201Given that no statute authorizes the BOP to reduce a prisoner’s supervised release, it’s hard to figure how a district court can grant habeas corpus to in essence demand that the BOP do so.

No matter. Doug’s supervised release was cut in half. But I strongly doubt that this decision will influence any other district court to do the same for the small subset of inmates in Doug’s position.

The opinion has not been picked up by LEXIS.

Order (ECF 16), Dyer v. Fulgam, Case No. 1:21-cv-299 (E.D. Tenn. May 20, 2022)

– Thomas L. Root

Biden Orders More CARES Act Placement – Update for June 1, 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 EXECUTIVE ORDER BREATHES NEW LIFE INTO CARES ACT HOME CONFINEMENT

President Biden last week instructed the Dept of Justice to “continue to implement the core public health measures, as appropriate, of masking, distancing, testing, and vaccination in federal prisons,” an order which specifically includes CARES Act home confinement.

home210218The Executive Order as well directs DOJ to update the BOP’s COVID-19 testing procedures, update “protocols with alternatives to facility lockdowns and restrictive housing to prevent the spread of COVID-19; and determine how many individuals who meet the requirements to be released on home confinement.”

The BOP directives came as a virtual footnote to an executive order President Biden signed on the second anniversary of George Floyd’s killing by Minneapolis police.

The Executive Order declared in Section 1 that the Administration’s policy is to ensure that “no one should be required to serve an excessive prison sentence.” To that end, the Order states, “My Administration will fully implement the First Step Act, including by supporting sentencing reductions in appropriate cases and by allowing eligible incarcerated people to participate in recidivism reduction programming and earn time credits.”

DOJ has been directed to update its “regulations, policies, and guidance in order to fully implement the provisions and intent of the First Step Act, and shall continue to do so consistent with the policy announced in section 1 of this order.”

PATTERNB190722

The Order also requires DOJ to adopt “a strategic plan and timeline to improve PATTERN, including by addressing any disparities and developing a needs-based assessment system.”

E0 14074, Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety (May 25, 2022)

Government Executive, Biden Moves to Improve Public Health Conditions in Federal Prisons and Jails (May 26, 2022)

– Thomas L. Root

Congress Races Glacier, And Glacier Wins – Update for May 31, 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.

NOTHIN’S HAPPENIN’ HERE

Every week, I get a lot of emails from people like this one this morning:

“I am sorry, I know that everyone sends you messages asking for information about the bills in the house and senate, but i have to ask.  Have you heard anything about the prohibiting punishment of acquitted conduct act?”

People are always just wanting “an update” on bills pending (or on bills they just imagine are pending) in Congress.

nothing160321My answer is always the same: if anything is going on with one of these bills, I will cover it in the newsletter. If I haven’t mentioned it, nothing’s going on. 

Like last week. Nothing went on last Monday. And after Tuesday’s horrific shooting in a Uvalde, Texas, school, Congress’s focus turned to anguished sound bites and to what feel-good knuckle-headed legislation might be passed in response. Think I’m over-reacting?  Ask “One-Door” Ted Cruz. Or “High-Caliber” Joe Biden.

But, as for criminal justice reform, here’s an update on legislation:

EQUAL Act: Senate Majority Leader Chuck Schumer held a news conference in front of the Second Circuit courthouse in New York City to call on lawmakers to support the EQUAL Act (S.79), which would end the sentencing disparity between crack and powder cocaine that has had a disproportionate effect on black defendants.

In September, the House passed the bill 361-66, which ends a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. Since then, the Senate Judiciary Committee has approved the bill, sending it to the Senate floor for a vote.

The New York Daily News reported that Schumer, “who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor.”

Senators Rob Portman (R-OH) and Cory Booker (D-NJ) are sponsoring the bill, which has 21 cosponsors, 11 of the Republican. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer said last Monday. “We want to get this done as soon as we can.”

But all is not roses. At the end of April, Sen Charles Grassley (R-IA) introduced the SMART Cocaine Sentencing Act (S.4116), which cuts the crack-powder ratio to 2.5 to 1 and puts retroactivity decisions in the hands of the Dept of Justice. While the bill only has three cosponsors, it is generally seen as being intended to be a bargaining chip, to be used during floor debate to water down EQUAL.

Marijuana: Nearly every House Democrat and three House Republicans voted in April to pass the MORE Act (H.R. 3617). It would decriminalize marijuana, something 27 states and the District of Columbia have already done.

nothing190906

Meanwhile, expectations are wavering over a marijuana legalization bill in the Senate. Most of the pressure for cannabis reform is coming from state financial regulators, who last week urged Congress to pass marijuana banking reform as part of a large-scale manufacturing bill that’s currently being finalized in conference committee. In a way that would be helpful, because marijuana criminal reform has been held hostage to the problems state dispensaries have in accessing the banking system.

Experts predict, however, that the MORE Act won’t have enough Republican votes for passage. The bill faces opposition from some Democrats, including Sen Joe Manchin (D-WV), who has said that he is unsure about legalizing adult-use marijuana.

Much of the slowdown in criminal justice reform results from violent crime rates nationwide, which have cooled the reformers’ ardor. Recent polling reflects public concerns about rising crime rates and dissatisfaction with how public leaders are addressing the problem.

nothingcoming181018Guns: Note to people who email me asking when Congress is going to reform the 18 USC 924(c) possession of a gun during drug and violent crimes statute. The rising violent crime rates – not to mention mass shootings in Buffalo and Uvalde, Texas, pretty much guarantee that no one is going to call for changes in 924(c) that will benefit defendants.

New Legislation: One bill introduced last week is good for federal prisoners. The Family Notification of Death, Injury, or Illness in Custody Act of 2022 (already introduced in the House as HR 6296), would require the DOJ to establish guidelines for the Bureau of Prisons and state correctional systems to notify families of incarcerated people if their loved one has a serious illness, a life-threatening injury or if they die behind bars.

The bill’s introduction in the Senate last Thursday comes more than two years after the Associated Press reported that BOP had ignored its internal guidelines by failing to notify the families of inmates who were seriously ill with COVID. The legislation – introduced by Sens. Jon Ossoff, D-Ga., and John Kennedy, R-La. – is “the latest step by members of Congress to further oversight of the beleaguered federal prison system, which has lurched from crisis to crisis in recent years,” AP reported.

New York Daily News, Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’ (May 23, 2022)

S.4116, SMART Cocaine Sentencing Act

Gray DC, Cannabis legalization remains stalled on Capitol Hill (May 26, 2022)

Vigour Times, How Criminal Justice Reform Fell Apart (May 26, 2022)

AP, Senate bill would set up medical notification to inmates’ kin (May 23, 2022)

– Thomas L. Root

Cleaning Up Before The Long Weekend – Update for May 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.

IT’S ACADEMIC

Study Finds Judges Inconsistent in Granting Compassionate Release: lawyerjoke180807Only a lawyer (or brilliant law student in this case) could require 44 pages and 194 footnotes to conclude the obvious: district courts are all over the map on granting or denying compassionate release due to the inmate’s vaccination status.

A Columbia Law Review Note published last week finds “disparate outcomes resulting from the vast judicial discretion within the compassionate release space” on the treatment of compassionate release movants on the basis of their vaccination status. The Note “argues that the current system results in inequitable geographical-based outcomes” and “calls on the United States Sentencing Commission to offer guidance to federal courts on how to approach compassionate release requests in the context of the First Step Act and the ongoing COVID-19 pandemic.”

Columbia Law Review, Unequal Treatment: (In)compassionate Release from Federal Prison in the Context of the COVID-19 Pandemic and Vaccine (May 13, 2022)

Have You Kissed Your Public Defender Today? An Urban Institute study released last week found that defendants represented by Criminal Justice Act panel attorneys (those appointed by the court) and private counsel have 18-25% greater odds of being sent to prison once convicted than those represented by a federal public defender. What’s more, “individuals represented by private and CJA panel attorneys received 4-8% longer sentences than those who used a public defender.”

lovelawyer220527

The study concludes that because federal public defenders have “specific expertise in federal criminal cases and more familiarity with the judges and prosecutors,” they may be “more likely to encourage their clients to take plea deals but may also secure their clients favorable sentencing outcomes.”

Urban Institute, Counsel Type in Federal Criminal Court Cases, 2015-18 (May 18, 2022)

– Thomas L. Root

What Does Oyer Plan To Do About the Backlog? – Update for May 26, 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.

WHAT WILL NEW PARDON ATTORNEY DO WITH CLEMENCY BACKLOG, LEGISLATORS WANT TO KNOW

A bipartisan group of representatives has demanded information from Elizabeth Oyer, the new Pardon Attorney, about her plans for processing the 17,400-strong backlog of clemency petitions pending (some for years).

paperwork171019“The growing backlog of clemency petitions undermines the promise of a fair and just criminal legal system,” Representatives Ayanna Pressley (D-MA), Mary Gay Scanlon (D-PA), David Joyce (R-OH), and Kelly Armstrong (R-ND) wrote in a letter last week to Pardon Attorney Elizabeth Oyer. “Every application represents a person, a family, and a community. And every delayed response represents a miscarriage of justice, a dysfunctional process, and a policy failure in desperate need of repair.”

The letter demanded a full report from Oyer by June 7 that includes “applicant demographic data (including age, race/ethnicity, gender, parental status, state of residence, incarceration status), month and year of application submission, representation by an attorney, type of clemency request, type of relief sought, type of offense(s), and office currently reviewing application.”

Bloomberg, Lawmakers Press DOJ on Backlog of 17,000 Clemency Petitions (May 18, 2022)

Letter to Elizabeth Oyer (May 17, 2022)

– Thomas L. Root

Legislators Tackle Clemency Reform – Update for May 24, 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.

HOUSE SUBCOMMITTEE EXPLORES FIX FOR CLEMENCY MESS

A subcommittee of the House Judiciary Committee last Thursday grappled with the jammed-up federal clemency process, in which an estimated 17,400 petitions await Presidential consideration.

clemencypitch180716The Subcommittee on Crime, Terrorism & Homeland Security heard from a spectrum of witnesses – from a former Mississippi US Attorney who argued the Dept of Justice’s “policies with regard to review of clemency petitions are correct: clemency should only be granted in extraordinary circumstances and exercised rarely” – to clemency experts who deconstructed the convoluted process in academic detail.

In opening remarks, Subcommittee Chair Rep. Sheila Jackson Lee (D-TX) said that Congress should encourage presidents to routinely use clemency powers, tools she called “useful… not just to correct individual injustices but to overcome “misguided policies that led to mass incarceration.”

Rep Ayanna Pressley (D-Mass) urged passage of a bill she is sponsoring – the Fair and Independent Experts in Clemency Act (or “FIX Clemency Act”), H.R. 6234. That measure would replace DOJ’s Office of Pardon Attorney with an independent clemency board, made up of nine people appointed by the President. The Board would send pardon and commutation recommendations directly to the president.

Clemency expert and law professor Mark Osler testified that what was once a relatively simple clemency system has grown “and metastasized until the process came to include seven distinct actors, each with their own interests and biases, acting sequentially. Today, a clemency petition will be considered in turn by the staff of the Pardon Attorney, the Pardon Attorney, the staff of the Deputy Attorney General, the Deputy Attorney General, the staff of the White House Counsel, the White House Counsel, and finally by the President.”

“The absurd inefficiency of seven reviewers seeing a petition only after a predecessor is done — rather than simultaneously as part of a board — is striking,” Osler said. “On top of that, baked into this system is negative decision bias; reviewers know they can get in trouble only for a bad “yes,” which incentivizes ‘no’s.’ It is seven valves, all spring-loaded shut, on the same pipe.”

clemency220418Law professor Rachel Barkow, a clemency expert and former member of the US Sentencing Commission, told the Subcommittee that “there are now more than 18,000 people waiting for a response to their petitions, many of whom have been waiting for years. It is hard to overstate the level of mismanagement responsible for this unconscionable backlog. These people deserve answers to their petitions, yet the administration has done nothing to suggest it has any grasp of the urgency of the situation.”

Barkow said, “The view inside DOJ… is that pardon attorneys should ‘defend the department’s prosecutorial prerogatives” and that “the institution of a genuinely humane clemency policy would be considered an insult to the good work of line prosecutors.” In light of this view, she said, “there is a strong presumption at DOJ that favorable recommendations should be kept to an absolute minimum.”

pardonme190123The grant rate for commutations and pardons across presidencies has been low in recent years compared to the rates for most of the nation’s history. Trump granted 2% of the petitions he received, Obama granted 5%, George W. Bush granted 2%, Clinton granted 6%, George H.W. Bush granted 5%, and Reagan granted 12%. This contrasts with Carter’s grant rate of 21%, Ford’s rate of 27%, and Nixon’s rate of 36%. “Between 1892 and 1930,” Barkow said, “27% of the applications received some grant of clemency.”

House Subcommittee on Crime, Terrorism & Homeland Security, Oversight Hearing on Clemency and the Office of the Pardon Attorney (May 19, 2022)

Statement of Professor Rachel E. Barkow, New York University School of Law, House Judiciary Comm, Subcomm on Crime, Terrorism, and Homeland Security (May 19)

Statement of Professor Mark Osler, University of St. Thomas, House Judiciary Comm, Subcomm on Crime, Terrorism & Homeland Security (May 19, 2022)

UPI, House panel weighs reforms for clemency amid backlog of 17,000 petitions (May 19, 2022)

– Thomas L. Root

Reluctant Director Candidate Would Inherit “Crisis-Plagued” BOP – Update for May 23, 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.

MOHR RUMORED TO BE LEAD CANDIDATE TO REPLACE CARVAJAL

Associated Press has reported that Gary Mohr, former director of the Ohio Dept of Rehabilitation and Correction, has emerged as the leading contender to run what AP calls “the crisis-plagued federal Bureau of Prisons.”

Citing three people familiar with the matter, AP said last Friday that Mohr is among those at the top of the list of candidates to replace BOP Director Michael Carvajal, who resigned in January but is remaining in the post until a successor was named.

A final decision has not been yet been made, AP said, and it’s not clear when an announcement will be be forthcoming.

clownshow220523AP reported that Mohr said he was “shocked to see an article describing me as a top contender” for the position and denied that he had applied or been interviewed. However, AP said, those familiar with the process “insisted Saturday that Mohr remained among those being seriously considered for the position.”

ironyalert220523So somebody here’s not telling the truth. If Mohr is truly in the running, then his falsely denying that he’s applied is not the best look for someone stepping into a position where credibility would be refreshing. Of course, it may be that the BOP really is floating his name as a finalist for a job he’s never applied for. Except that would suggest that the people responsible for hiring the new director are incompetent. And how could that be?

Mohr, with more than 47 years in corrections, might be a good fit for the job. His corrections career began in a teaching position in the Ohio prison system. He has held other posts since, including as a warden, head of Ohio’s youth prisons system, and eventually Ohio DRC Director from 2010 through 2018. After retiring from ODRC, he became president of the American Correctional Association and formed a prison consulting firm focused on promoting system reform “aimed at providing a sense of hope for those under confinement and the staff responsible for their supervision,” according to Correctional News.

As head of Ohio’s prison system, Mohr oversaw over 12,000 employees and about 50,000 inmates at 28 facilities. The BOP is budgeted for around 37,500 employees, operates 122 facilities and has about 157,000 inmates.

candor220523As ODRC director, Mohr sought to reduce the state’s prison population and “spearheaded efforts to reduce the number of first-time, nonviolent offenders behind bars,” AP said. Having managed to cut prisoners by only about 1,000 inmates in his tenure, Mohr said when he left the director’s position that he was “extraordinarily disheartened” he couldn’t do more.

That, at least, is a candid appraisal, and a refreshing change from the current director, to whom every BOP misstep over the past few years has really seemed to Mikey to be “a testament to the hard work of our dedicated professional staff who support public safety and promote reentry.”  Or (remember this one?), “The Bureau has a robust infrastructure to educate and train staff as to prohibited actions and to advise all persons (staff, inmates and the public) as to how to report misconduct.”

If Mohr takes the job, he may find the situation he’s marching into exceeds even the AP’s characterization of the BOP as “crisis-plagued.” This past week alone:

• True Crime: The District of Oregon US Attorney announced that a former FCI Sheridan correctional officer (CO) had pled guilty to a bribery and contraband smuggling conspiracy. Nickolas Herrera admitted guilt in a conspiracy to smuggle contraband to an inmate, beginning with food, clothing, and cigarettes but morphing into cellphones and controlled substances.

• Sexual Predator:  In Dallas, a former CO at FMS Carswell, pled guilty to sexually abusing several female inmates there. According to the plea agreement, Luis Curiel admitted to three separate sexual encounters with inmates in October 2021.

pervert160728• Sexual Pervert: A BOP CO at FDC Los Angeles last week admitted to sodomizing an inmate while she was quarantining in her cell after a positive COVID test, according to a newly unsealed plea agreement unsealed along with an information charging Jose Viera with deprivation of civil rights under color of law. The disturbing and disgusting assault – for which ample DNA evidence exists, if you get my drift – occurred five days before Christmas 2020.

• A crisis of credibility: Four months after the fact, the BOP last week got around to admitting to two more inmate deaths from COVID in January, one at Englewood and another at Leavenworth. Meanwhile, the number of BOP employees with COVID has been steadily climbing in the last month, now at 265, while the number of sick inmates has been falling. The reason may have something to do with testing inmates for the coronavirus: as of three months ago, the BOP running total of inmate COVID tests since the start of the pandemic was 128,895. As a running total, of course, it should only be going up or – at worst – remaining unchanged.  But not in the BOP’s wacky world of numbers. As of last Friday, that number had actually fallen to 128,719.

crazynumbers200519Most charitably, it seems that no testing is being done anymore. The cynical view might be that none of the BOP’s COVID numbers are reliable. But with national COVID numbers and BOP employee infections – numbers the BOP cannot control – going up, it is quite puzzling that inmate numbers keep falling.

Mr. Mohr, taking you at your word, we completely understand why you might want to pass on this job.

Associated Press, Former Ohio prisons chief top contender to run US prisons (May 21, 2022)

Correctional News, Gary Mohr (October 18, 2021)

Statement of Michael Carvajal, House Committee on Judiciary (February 3, 2022)

US Attorney’s Office, Former Federal Correctional Officer Pleads Guilty for Role in Bribery and Contraband Smuggling Conspiracy (May 19, 2022)

KTVT-TV, Dallas, Fort Worth prison guard admits sexually abusing inmates (May 18, 2022)

Daily Beast, Prison Guard Allegedly Sodomized Inmate Quarantining With COVID (May 17, 2022)

– Thomas L. Root

A Couple of Short Takes – Update for May 19, 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.

TIME ENOUGH FOR A QUICKIE…

Quickie #1 – FAMM Lobbies for Compassionate Release for Dublin Victims: In a letter sent last week to Deputy Attorney General Lisa Monaco, FAMM President Kevin Ring asked the Dept of Justice to recommend compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) to female Bureau of Prisons inmates who suffered sexual assault at hands of FCI Dublin corrections officials and officials.

compassion210903The letter notes that the BOP has statutory authority under U.S.S.G. §1B1.13 to identify “’other reasons,’ that alone or in combination with recognized criteria merit compassionate release. Sexual assault by BOP personnel of incarcerated women is an exceptional abuse of trust. The trauma resulting from such victimization is without doubt an extraordinary and compelling reason justifying consideration for compassionate release.”

FAMM, Letter to Lisa Monaco (May 9, 2022)


supervisedrevoked181106Quickie # 2 – Supervised Release Violations as Double Punishment: In a first comprehensive analysis of “criminal violations” and supervised release – cases where people violate their supervision by committing new crimes – Penn State law professor Jacob Schuman argues that revocation for criminal conduct inflicts unfair double punishment and erodes constitutional rights. When defendants on supervised release commit new crimes, he writes, prosecution without revocation is a better and fairer way to punish them.

Virginia Law Review, Criminal Violations (Feb 15, 2022)

– Thomas L. Root

Compassionate Release Numbers Show Gross Disparities – Update for May 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.

COMPASSIONATE RELEASE AIN’T WHAT IT USED TO BE

funwithnumbers170511A Sentencing Commission report issued last week chronicled a slow but consistent slide in the rate of compassionate release motions being granted by district courts, even while highlighting how inconsistencies among federal courts are resulting in gross sentence disparities.

The First Step Act granted the right to prisoners to file their own motions for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). For the 30 years prior to that, only the Bureau of Prisons was permitted to file on behalf of the prisoner, and – unsurprisingly – the BOP was greatly disinclined to ask any court to let any of its wards go home early.

In the year following First Step’s passage, around 450 compassionate release motions were filed. But in April 2020, with onset of the COVID-19 pandemic, the numbers skyrocketed. Nearly as many compassionate release motions were filed in April 2020 (436) as in all of the 15 prior months. By July 2020, over 1,500 a month were being submitted.

Everyone was scared. But as COVID became more common, the monthly numbers declined. In September 2020, 1,363 were filed, with 19% granted. A year later (September 2021), 456 motions were filed with 11% granted.

The report highlights striking variations in grant rates among the 94 federal districts. Oregon repudiates its nickname of The Land of Hard Cases, remaining the best place, statistically, to file. Of 144 motions, 63% have been granted. The back of the pack includes Western North Carolina (only 3.4% of 534 granted), Eastern Texas (2.0% of 349 granted) and Southern Georgia (2.0% of 248 granted). The average grant rate since the First Step Act permitted the filing of compassionate release motions by inmates themselves is 17.2% out of 3,867 motions.

oregon220517Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog that “the District of Maryland — with a total of 211 sentencing reduction motions granted (though “only” a grant rate of 32.7% with 646 motions) — granted more of these motions than all the courts of the Fifth Circuit!” The 5th Circuit has the lower grant rate (9.3% of the 2,197 total brought) of all the circuits.

Not surprisingly, the longer one has been in prison, the better the chances for compassionate release. People with sentences over 20 years had a 26.2% grant rate, compared to a 3.8% grant rate for people with a sentence of 24 months or fewer. But here’s a strange inversion: people with lowest criminal history had a 30.0% grant rate, while those with a moderate history only had a 12% grant rate. But inmates with the worst history had a grant rate of 29.2%, almost as good as those with no prior convictions.

But the most beneficial information in the Report is the list of reasons that compassionate release motions were denied. Courts found that 18 USC § 3553(a) sentencing factors and the need to protect the public required denial in 33.1% of all compassionate release motions. Behind that were the movants’ failure to show they were at risk from COVID factors or a serious medical condition (26.4%), followed by failure to exhaust administrative remedies (17.9%). These amounted to nine out of ten reasons for denial (the courts failed to list reasons in 10% of the cases).

dice161221If it provides no other benefit, the Report suggests that compassionate release – far from being the relief First Step Act intended – has become an enormous geographical crapshoot, and a driver of sentence disparity.

US Sentencing Commission, Compassionate Release Data Report – Fiscal Years 2020 to 2021 (May 8, 2022)

Sentencing Law and Policy, US Sentencing Commission releases latest detailed “Compassionate Release Data Report” (May 9, 2022)

– Thomas L. Root

The Supremes Finally Take The 2255(e) Debate! – Update for May 16, 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.

LATE-BREAKING NEWS…

The Supreme Court granted certiorari in Jones v. Hendrix by order issued at 9:30 am on Monday, May 16.  

Could the Justices be reading my blog? Doubtful, but the certiorari may be good news for thousands of federal inmates trapped in the 10th and 11th Circuits (depending, of course, on the outcome of this case sometime next year).

SCOTUS MAY FINALLY SETTLE THE 2241 DEBATE
... but a 2255(e) ain't, depending on where you are.
… but a 2255(e) ain’t, depending on where you are.

Let’s say you were standing in front of Sunny’s Cigars with a gun and two prior convictions, one for selling drugs and the other for manslaughter. If the Feds picked you up, you would have been sentenced to a minimum 15 years under 18 U.S.C. § 924(e), the Armed Career Criminal Act.

After the U.S. Supreme Court (generally known by the shorthand “SCOTUS“) ruled in Borden v. United States that a crime committed through recklessness was not a “crime of violence” predicate for ACCA, you would want to file with your sentencing court to get the ACCA sentencing enhancement thrown out.

The Borden ruling was not a constitutional ruling, but instead just an interpretation of a statute. That meant that you could not file a second-or-successive 28 U.S.C. § 2255 motion, because 28 U.S.C.  § 2244(b) limits successive § 2255s to newly discovered evidence or decisions on constitutionality. However, 28 U.S.C. § 2255(e) – known as the “saving clause,” lets you file a traditional 28 U.S.C. § 2241 habeas corpus motion attacking the ACCA sentence where a § 2255 would be inadequate to address the issue.

Or at least it would let you file a § 2241 petition if you’re locked up in, say, Kentucky (in the 6th Circuit). A § 2241 habeas corpus petition is filed in the federal district in which you’re located at the time you file. If you were at FCI Manchester, you’d file in the Eastern District of Kentucky. Go a few miles east of there to do your time in Beckley, West Virginia, for example, and you’d be filing in the Southern District of West Virginia (4th Circuit). Fourth Circuit precedent forecloses you from using a § 2241 petition as a workaround.

gunknot181009Writing in SCOTUSBlog last week, John Elwood noted that Ham v. Breckon, a 4th Circuit decision, and Jones v. Hendrix, an 8th Circuit decision, both asked the same question, and both have been “relisted” by the Supreme Court.

A “relist” is a petition for certiorari that is scheduled to be decided at the Supreme Court’s regular Friday conference, but is “relisted” to be considered further at a subsequent conference. A “relisted” petition is statistically more likely to have review granted by the Court, and that is even more likely where there are two relisted petitions asking the same question.

This is important, because two circuits – the 10th and 11th – don’t permit § 2241 petitions even where the movant is challenging guilt or innocence. A SCOTUS decision on Ham or Jones would not only settle whether a movant could challenge a statutory sentencing enhancement using a § 2241 petition under the “saving clause,” but would address the circuit split between the two outlier circuits (the 10th and 11th) and everyone else on whether guilt and innocence could be challenged as well.

circuitsplit220516Elwood thinks that, while the Court has ducked the issue in the past, it will grant review this time. He wrote, “The government — which generally is a pretty successful respondent as well as a successful petitioner — admits that there is a circuit split on the issue. It would have a hard time saying otherwise, since the government itself petitioned for Supreme Court review on this very issue a couple years back in the much-relisted United States v. Wheeler, before a vehicle problem arose (the prisoner… was released from prison) that apparently persuaded the Supreme Court to deny review in that case.”

Ham v. Breckon, Case No 21-763 (pending certiorari)

Jones v. Hendrix, Case No 21-857 (certiorari granted)

SCOTUSBlog, Challenges to administrative action and retroactive relief for prisoners (May 11, 2022)

– Thomas L. Root