Federal Bureau of Prisons Privatizing Fast – Update for January 31, 2018

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


memo180131Amid plans announced last summer to chop 12% of its workforce, the Bureau of Prisons has issued a memorandum to all wardens (which the BOP calls “Chief Executive Officers”) last week in which it announced that “to alleviate the overcrowding at Bureau of Prisons’ (BOP) institutions and to maximize the effectiveness of the private contracts,” low-security institutions should submit names eligible inmates to be transferred to private prisons.

The memo, leaked to Government Executive magazine (undoubtedly by a happy BOP employee), set the following designation criteria. The inmates should

• be classified as low security status,
• be male and non-U.S. citizens,
• be assigned a medical and mental health care level 1 or 2, and
• have 90 months or less remaining to serve on their sentence.

Specific to Rivers Correctional Institution, a private prison run by The GEO Group (located in Winton, NC, 100 miles east northeast of Raleigh, NC), the Bureau specifies that inmate should be a

• male inmate classified as Low security with IN custody,
• sentenced out of the District of Columbia Superior or District        Court, and
• assigned a medical and mental health care level 1 or 2.

Rivers CI will accept inmates who meet the who are awaiting enrollment in the residential drug abuse program (RDAP).

privateB180131Mother Jones, a leftist magazine, reported today that this expanded use of private prisons comes as the agency plans to cut the number of correctional officers and other employees at its own institutions. The magazine said, “In a conference call days before the memo leaked, the bureau told facility administrators to expect a 12 to 14 percent reduction in staffing levels—though lawmakers and others have argued that prisons are already dangerously understaffed.”

The Administration’s FY 2019 budget calls for cutting 6,000 BOP positions, including more than 1,800 correctional officers. Eric Young, president of the American Federation of Government Employees council representing BOP employees, said, “It has sent a panic throughout my ranks.” Employees are worried that if natural attrition and vacancy elimination alone do not reach the BOP’s staff reduction goals, mandatory layoffs could follow. Not hiring to fill vacancies will worsen existing staffing shortfalls, Young said.

privateprisons180131While last week’s BOP memo targets immigrants serving time, private prison executives have previously suggested that other inmates may soon be transferred as well. “You’ll see the bureau evaluate U.S. citizens as they have previously evaluated criminal aliens,” J. Dave Donahue, president of GEO Group’s US corrections operations, told investors on a call last August.

Mother Jones, Leaked Memo Reveals Trump’s Gift to Private Prison Companies (Jan. 30, 2018)

The GEO Group’s (GEO) CEO George Zoley on Q2 2017 Results – Earnings Call Transcript (Aug. 7, 2017)

Government Executive, Leaked Memo: Trump admin to boost use of private prisons while slashing Federal staff (Jan. 25, 2018)

– Thomas L. Root


“You’re Screwed” Writ Large – Update for January 30, 2018

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


The history of what the law calls “extraordinary writs” is a rich one. Time was, courts of law could only award money damages. Now money’s nice stuff, but sometimes you need more.

equity180130Your neighbor’s tree is about to fall on your house and he won’t do anything about it? Knowing that after your house is crushed one dark and stormy night (with you in it) that your heirs can collect some money does not provide a lot of what insurance companies like to call “peace of mind.” What you need is a court order that your neighbor has to cut it down. Back in the bad old days of segregation, a black family would have had no remedy in a court of law: money damages won’t do when you yearn for liberty and equality.

Because of the mismatch between need and remedy, the English – back in the days of yore – developed courts of equity. Equity courts were the equal of law courts, but for their remedies. These courts originally issued prerogative writs, court orders, with such great names as certiorari, mandamus, quo warranto, audita querela, and, of course, the Great Writ itself, habeas corpus. These remedies, as well as the one most have heard of, injunctive writs (or just injunctions) survive today.

Everyone knows about the federal prisoners’ motion under 28 USC 2255, a statutory right granted to prisoners to stand in the place and stead of the constitutionally-protected writ of habeas corpus. But you cannot hang around a prison law library too long without hearing that a thundering herd of extraordinary writ motions are there, just waiting to be filed besides the old reliable 2255. In fact, there is a law called the All Writs Act, that confers on federal courts the right to gin up just about any remedy the court can imagine, sort of a remedy version of making the punishment fit the crime. Court-order busing, taking control of labor unions, and court-ordered state prison emptying are examples of the All Writs Act in action.

vader180130For federal prisoners, however, Congress intended through 28 USC 2255, as well as the Antiterrorism and Effective Death Penalty Act (a bill that could have been named by Darth Vader himself) to limit prisoner access to traditional extraordinary writs as much as possible. Last week, the 8th Circuit reminded us of how effective the AEDPA has been.

The Circuit slapped further restrictions on the writ of error coram nobis, an old common law writ which may be filed only after the petitioner is out from under his sentence and supervised release to claim he was actually innocent. Keith Baranski got 60 months on a firearms charge. While locked up, he filed a 2255 and lost. After he was released and finally got off paper, he filed a coram nobis petition. It was denied, and Keith appealed.

equitycourt180130The 8th ruled that while 28 USC 2244 only required that a petitioner get Court of Appeals approval for a second-or-successive 2255 motion, the limits set out in 2255(h) applied to any petitions filed after a 2255, even a coram nobis. In other words, if a petitioner previously filed a 2255 motion, a coram nobis petition will be tossed unless it relies on newly discovered evidence that would establish by clear and convincing evidence that no reasonable jury would have convicted; or on a new rule of constitutional law made retroactive…

The Circuit said, “It is widely accepted that custody is the only substantive difference between coram nobis and habeas petitions… Given that coram nobis is an extraordinary remedy available at the far end of a post-conviction continuum only for the “most fundamental” errors, it would make no sense to rule that a petitioner no longer in custody may obtain coram nobis relief with a less rigorous substantive showing than that required by limitations for successive habeas corpus and § 2255 relief.”

United States v. Baranski, Case No. 16-1399 (8th Cir. Jan. 23, 2018)

– Thomas L. Root


Criminal Justice Reform Accelerates – but in a Different Direction – Update for January 29, 2018

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


momentum180129Momentum is building under the Trump administration for criminal justice reform, even as the debate veers away from mandatory minimums to preventing inmates from returning to prison. A report in The Hill last week said politicians now believe this approach has the best chance of winning approval from both Congress and the White House.

The Hill reported, “A source familiar with the talks between the White House and GOP members of Congress said a bipartisan prison-reform bill, the Prison Reform and Redemption Act, H.R. 3356, offered by Rep. Doug Collins (R-Georgia) is expected to be marked up in the House Judiciary Committee before the first quarter ends in April. Co-sponsored by eight Democrats and seven Republicans, the PRRA allows prisoners to serve the final days of their sentences in halfway houses or home confinement and to earn extra good time. To do so, prisoners have to complete evidence-based programs while in prison that have been shown to reduce recidivism rates.

Senate Majority Whip John Cornyn (R-Texas) and Sen. Sheldon Whitehouse (D-Rhode Island) have introduced similar legislation in the Senate, and reportedly are working closely together to ensure any differences between their bills are reconciled, the source familiar with talks said.

The conservative billionaire brothers Charles and David Koch unveiled a program this past weekend, “Safe Streets and Second Chances,” intended to shift America’s criminal justice system from a focus on punishment to rehabilitation.

Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

At the announcement of the new initiative, Koch Industries general counsel Mark Holden downplayed the challenge Attorney General Jefferson Beauregard Sessions III poses to Koch’s criminal justice reform objectives. Holden said Sessions is on board with prison reform. “I had a good discussion with him in a meeting at the White House a couple of weeks ago,” Holden said. “We’re going to meet people where they are. And hopefully we can get more success in this area when we show some success with prison reform.”

Rep. Bobby Scott (D-Virginia) said late last week he hasn’t given up hope on Sessions coming around on sentencing reform, pointing to that fact that as a senator Sessions helped pass the Fair Sentencing Act, which improved the racial disparity in cocaine crime sentencing.

The Hill, Prison reform gains new momentum under Trump (Jan. 24, 2018)

WTKR-TV, Koch network leader says Attorney General Jeff Sessions “on board” with prison reform (Jan. 28, 2018)

Washington Examiner, Koch brothers introducing new criminal justice reform initiative (Jan. 24, 2018)

Axios, Rep. Scott hasn’t given up on Sessions on sentencing reform (Jan. 27, 2018)

– Thomas L. Root


Violence Is Not Always Violent and Drug Cases Are Not Always about Drugs – Update for January 25, 2018

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


Buttercup:        Things are seldom what they seem,
                                Skim milk masquerades as cream;
                           Highlows pass as patent leathers;
                                Jackdaws strut in peacock’s feathers.

Captain:           Very true,
                                So they do.

Things are Seldom What They Seem
(duet with Buttercup and Capt. Corcoran)
Gilbert & Sullivan, H.M.S. Pinafore

pinafore180126Gilbert and Sullivan had nothing on federal criminal law since the Supreme Court’s decisions in Mathis v. United States and Descamps v. United States. There was a time that you would have thought it was easy to tell a crime of violence, or to identified a controlled substance offense. As Justice Potter Stewart famously said in Jacobellis v. Ohio (about obscenity, not violence), “I know it when I see it.”

But no more. Now, courts must go through countless gyrations, looking at whether statutes are divisible, subject to categorical analysis, or are broader than a never-existed federal common law. Thus, even if a defendant beat his grandmother with a ball bat, the crime might not be violent if the state would have applied the same statute to a defendant who nudged his grandma with a down pillow.

Things are seldom what they seem …

Buttercup:    Black sheep dwell in every fold;
                        All that glitters is not gold;
                     Storks turn out to be but logs;
                        Bulls are but inflated frogs.

Captain:     So they be,

So some crimes are violent, some are not. And some drug offenses are “controlled substance offenses,” and some are not.

rare180126Last week, the 3rd Circuit ruled that Hobbs Act bank robbery by intimidation was met the “elements” test of the career offender Guidelines, and was a crime of violence, regardless of whether it met the enumerated offenses test of the Guidelines (the court suggested it probably did). The Circuit said, “Unarmed bank robbery by intimidation clearly does involve the ‘threatened use of physical force against the person of another’. U.S.S.G. § 4B1.2(a)(1). If a common sense understanding of the word “intimidation” were not enough to prove that, our precedent establishes that § 2113(a)’s prohibition on taking the “property or money or any other thing of value” either “by force and violence, or by intimidation” has as an element the threat of force.”

Meanwhile, the 1st Circuit refused to apply the Armed Career Criminal Act to a defendant who had a prior conviction for two drug offenses and attempted 2nd-degree armed robbery under New York law. The Circuit held that when the defendant had gotten the New York conviction, New York law applied it to conduct – such as purse-snatching where the victim and perp had a tug-of-war – that fell far short of the violent physical force needed to meet the elements test of the ACCA.

The 4th Circuit concluded that the West Virginia offense of unlawful wounding under § 61-2-9(a) “categorically qualifies as a crime of violence under the force clause, because it applies “only to a defendant who “shoots, stabs, cuts or wounds any person, or by any means causes him or her bodily injury with intent to maim, disfigure, disable or kill.” The Circuit held that the minimum conduct required for conviction of unlawful wounding must at least involve “physical force capable of causing physical injury to another person.” Thus, the offense “squarely matches ACCA’s force clause, which requires force that is capable of causing physical pain or injury.”

buttercup180126The 9th Circuit ruled that a drug conspiracy under the laws of the State of Washington was not a “controlled substance offense” for purposes of Guidelines § 2K2.1(a)(4)(A), because under Washington state law, a defendant could be convicted even if the only other conspirator was an undercover cop. The Circuit held that, as a result, “the Washington drug conspiracy statute covers conduct that would not be covered under federal law, and the Washington drug conspiracy statute is therefore not a categorical match to conspiracy under federal law.”

Finally, the 1st Circuit ruled yesterday that a conviction under Massachusett’s assault and battery with a dangerous weapon law (“ABDW”) was not a crime of violence when done recklessly, and concluded that the defendant’s state records, which reported he had attacked someone “with a shod foot,” were not clear enough to show that he was convicted of intentional ABDW instead of the merely reckless kind. Thus, the defendant did not have three prior crimes of violence, and could not be sentenced under the ACCA.

Buttercup:    Drops the wind and stops the mill;
                        Turbot is ambitious brill;
                    Gild the farthing if you will,
                        Yet it is a farthing still.

Captain:     Yes, I know.
                        That is so.

United States v. Wilson, Case No. 16-3845 (3rd Cir. Jan. 17, 2018)

United States v. Steed, Case No. 17-1011 (1st Cir. Jan. 12, 2018)

United States v. Covington, Case No. 17-4120 (4th Cir. Jan. 18, 2018)

United States v. Brown, Case No. 16-30218 (9th Cir. Jan. 16, 2018)

United States v. Kennedy, Case No. 15-2298 (1st Cir. Jan. 24, 2018)

– Thomas L. Root


Wish You Were Here – Update for January 24, 2018

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


jazzman180124Jazzman Brown, convicted of being a felon in possession of a gun, and punished with a 15-year sentence under the Armed Career Criminal Act, went back to court after the Supreme Court’s decision in Johnson v. United States. His sentencing judge agreed with him that after Johnson, his prior offenses could no longer be considered crimes fo violence, meaning that the ACCA 15-year sentence was invalid.

Jazzman naturally figured the sentencing judge bring him back for resentencing. After all, there was only a single count of conviction, and so everything was in play again. [This is where we ought to drop in a line about the defendant’s desire to take the stand at sentence, so we could slip in the phrase, “When the Jazzman’s testifying…” But we have too much self-respect to do that].

So he was dismayed when the district court, after vacating his 15-year sentence, resentenced him to 10 years – the max under 18 USC 922(g) – without ever giving him a chance to appear and be heard.

wish180124Last week, the 11th Circuit reversed. While admitting that there were probably cases where a defendant could be resentenced without a formal hearing, the Court said Jazzman’s “original sentence was set by the mandatory minimum under the ACCA… When that sentence was found to be in error, his new sentence was imposed under a different statutory provision, 18 U.S.C. 924(a)(2). As a result, the only statutory basis for Mr. Brown’s sentence was invalidated, and the District Court was required to resentence him under a new statutory provision, with a new sentencing guidelines range. Because the sentence on Mr. Brown’s one and only count of conviction was found to be in error, Mr. Brown’s entire sentence was necessarily undermined, and the District Court was tasked with crafting an entirely new sentence. As a result, Mr. Brown was entitled to a resentencing hearing.”

United States v. Brown, Case No. 16-14267 (11th Cir.  Jan. 18, 2018)

– Thomas L. Root


Supreme Court ‘Cigar’ is Just a Cigar – Update for January 23, 2018

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


nelson180124Lawyers are always plumbing the depths of cases for new angles they can use in defending their clients, and that’s how it should be. After all, we had the 14th Amendment’s equal protection clause for nearly a century before legal thinking accepted that it meant we could not deny lodging, meals and voting to those of a different race. And the 1st Amendment was on the books for 175 years before courts accepted that we had a right to be wrong in our speech about public events and public people without risking financial ruination.

But sometimes, as Sigmund Freud famously probably never said, “a cigar is just a cigar.”

cigar180124A year ago, the Supreme Court grappled with a case named Nelson v. Colorado, a matter that seemed to us to so straightforward as to make us wonder why it was even being debated. Two folks from Colorado, in separate cases, had been convicted of crimes and – as part of the punishment – were made to pay court costs, fees and restitution. Both of them had their convictions overturned, but Colorado law required that before they could get back the money paid for the costs, fees and restitution, they had to jump through an additional hoop: they had to prove they were innocent.

Proving one’s innocence is a lot different from the government not being able to prove one guilty. And it is a step that the Supreme Court rejected in Nelson. The Court said that the 14th Amendment’s right to due process meant that the State could not retain funds taken from the defendants simply because their convictions were in place when the funds were taken. Once the convictions were erased, the Court said, the presumption of innocence was restored. “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions,” the Court said. Simply enough, the Supremes said, when the conviction was overturned, the defendants were defendants no longer, and were presumed to be as innocent as any other Colorado citizen. Thus, the costs, fines and restitution had to be returned to them, no questions asked.

When we read Nelson at the time, we thought that the result was pretty obvious, but – while an interesting addition to due process jurisprudence – a matter of little significance to other areas of criminal law. But we did not reckon with the creativity of attorneys.

innocent180124In the Bloomberg BNA Criminal Law Reporter last week, well-known and respected federal criminal defense attorney Alan Ellis and his associates penned an article entitled Does an Acquittal Now Matter at Sentencing? Reining in Relevant Conduct Through a Recent Restitution Ruling. In the piece, Mr. Ellis described how federal courts routinely rely on acquitted or dismissed conduct – allegations of wrongdoing that a jury either rejected or never even considered – in setting federal criminal sentences. Mr. Ellis argued that in the wake of Nelson, the presumption of innocence attached to defendant with respect to any acquitted or uncharged conduct. Thus, federal judges could not constitutionally punish such acquitted or uncharged conduct in setting sentences. Or, as Mr. Ellis put it:

Acquitted conduct cannot be used to penalize (or increase a penalty) because an acquittal, by any means, restores the presumption of innocence. And no one may be penalized for being presumed innocent.

Our email inbox exploded with questions from federal inmates wondering whether Attorney Ellis might be onto something. Our response is a thundering, “Uh… not really.”

Mr. Ellis is right that 18 USC 3661 holds that there is no limit “on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” He is also right that the provisions of 18 USC 3661 are limited by the Constitution. For example, a court may not consider a defendant’s race, national origin or faith in imposing a sentence, regardless of the seeming lack of boundaries in Sec. 3661. But his conclusion that a court cannot consider acquitted or dismissed conduct is an oversimplification.

First, the punishment being meted out is not being imposed because of a crime of which the defendant was not convicted. There’s a real difference between punishing some who has not been found to have committed any crime and setting the punishment of someone who has been found to have committed a crime. In Nelson, the defendants were being punished financially where they had been convicted of nothing. In the case of a federal prisoner, the sentence is precisely money180124because the defendant was convicted of a crime, either by his own admission in a guilty plea or because a jury found him guilty beyond a reasonable doubt.

For each federal crime, Congress has prescribed a penalty (for example, from 0-10 years for possession of a gun by a convicted felon, or 5-40 years for possession with intent to sell 500 grams or more of cocaine). If a defendant is convicted of one of those offenses, any sentence within the statutory range is constitutionally permissible. By contrast, the Colorado scheme invalidated in Nelson let the state continue the imposition of a penalty absent a conviction. That offended due process.

Second, Mr. Ellis noted a prior Supreme Court decision, United States v. Watts, holding that facts relied on by a judge in setting a sentence must be found by a preponderance of the evidence. However, he blithely suggested that Nelson implicitly overruled Watts, rather than considering that maybe the holdings do not clash at all. Watts required first that a defendant be guilty of a criminal offense, and it nowhere countenanced sentencing a defendant in excess of the statutory maximum. Instead, it simply held that under 18 USC 3661 and the due process clause, a judge may consider information from acquitted counts, provided the information proved the defendant’s involvement by a preponderance. This holding does not clash with Nelson, because the defendant is never punished in excess of what the statute allows for the crime that was committed.

Third, Mr. Ellis is flat wrong when he says that “the reasoning of Nelson thus compels the conclusion that Watts has been effectively overruled.” The Supreme Court has repeatedly and clearly held that “Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”  While his prognostication that the Supreme Court would overrule Watts if the issue ever gets before it again is one we can neither prove nor disprove, we would suggest that what little tension the Watts caused among the justices is probably dissipated since Booker made the Guidelines advisory rather than mandatory.

onelson180124Finally, a primary issue in Nelson was what standard to apply, the due process inspection of Mathews v. Eldridge, or the more state-friendly standard from Medina v. California, which just asked whether the procedure required by the state for the defendants to get their money back offended “a fundamental principle of justice.” The Supreme Court applied the more defendant-friendly Mathews standard, because the issue in the case was “the continuing deprivation of property after a conviction has been reversed or vacated, with no prospect of reprosecution.” The Court thus defined the case as one arising where “no further criminal process is implicated.”

Use of acquitted conduct or dismissed conduct information in a federal sentencing, however, occurs in the middle of criminal process, at a time when further such process is almost a foregone conclusion. That makes use of acquitted or dismissed conduct information at sentencing a much different matter than the situation at issue in Nelson.

Don’t get us wrong: we would applaud a world in which judges were limited to only using information at sentencing that had been vetted by the “reasonable doubt” standard. But that is not the law, and despite Mr. Ellis’ creative interpretation, Nelson does nothing to change that.

Ellis, Alan, et al, Does an Acquittal Now Matter at Sentencing? Reining in Relevant Conduct Through a Recent Restitution Ruling, 102 CrL 364 (Jan. 17, 2018)

– Thomas L. Root


Sentencing Commission Meets: Nothing New – Update for January 22, 2018

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


The U.S. Sentencing Commission met last Friday, and federal inmates were anxious. Chiefly, the anticipation was due to an email newsletters circulating in the institutions have been predicting adoption of a Guidelines change that will cut sentences.

Virgin180102The change has been dubbed the “first offender proposal.” As the Guidelines are currently employed, the advisory sentencing ranges are set out in a chart. The y-axis of the chart is the Total Offense Level, determined by an assigned base offense level for the crime, along with additions and subtractions for various facts. The x-axis is the defendant’s criminal history.

For example, a guy with a prior state conviction for felony burglary is convicted in federal court for supplying cocaine to two street-level dealers who sold for him. After being indicted, he pleads guilty. The amount of cocaine he moved may set the base level at 26. Because was a manager of two other people, 2 levels get added. But because he pled guilty as soon as he was indicted, 3 levels get subtracted for acceptance of responsibility. His Total Offense Level is 25. The prior felony gets him 3 criminal history points, placing him in Criminal History Category II.

For someone with a Total Offense Level of 25 and Crim History II, Guidelines sentencing table sets an advisory sentencing range of 63-78 months.

senttable180122A few years ago, the Sentencing Commission noted that while some people had led exemplary lives up to their federal indictment, others fell in Criminal History I despite the fact they had some prior brushes with the law. A guy with a misdemeanor possession of drugs, for example, may have gotten 30 days suspended, and thus scored only one criminal history point, which kept him as Crim History I. Another guy may have done five years for a felony, getting out of prison in 2000. Because his prior bit ended more than 15 years ago, it no longer counted in the Guidelines criminal history score.

The Commission considered whether to modify the Criminal History guidelines to account for the difference between a virgin and someone who fell into Criminal History I more by luck than by conduct. It thus floated a proposal to reward the virginal defendant with a reduction in Total Offense Level. The proposal, made in December 2016, went nowhere, primarily because everything that was proposed then went nowhere: an unusually large number of USSC commissioner terms expired in December 2016, and due to Obama leaving and Trump arriving, no one got appointed to replace them right away. Without a quorum, nothing could happen.

By April 2017, the Commission was back to fighting strength, but too late to adopt proposed changes by May 1st. The USSC statute makes that date magic, because Sentencing Commission amendments must languish in front of Congress for six months (to give legislators a chance to veto any they don’t like) before becoming effective on November 1st. So the Commission decided to skip a 2017 Amendment cycle altogether.

indecision180122In August, the Commission refloated the proposed amendments that were orphaned the previous January. The Commissioners are still trying to figure out whether the first offender proposal should reward any defendant with zero criminal history points, or whether it should only reward defendants who are truly tyros, having a lifetime history of no convictions. The USSC is also undecided whether to reward first offenders with a one- or a two-level reduction.

There is one additional wrinkle: A change in the Guidelines, as a rule, only affects people who have not yet been sentenced. If it is to affect any of the 183,000-odd federal prisoners who are already doing time, the USSC must first declare it retroactive. Retroactivity is never a done deal. Instead, it depends on a lot of factors, some objective (such as whether retroactive motions for sentence reduction would clog the courts) and some subjective (such as whether fundamental fairness requires retroactivity).

That has not prevented a couple of outside businesses that take inmate money in exchange for “paralegal” services to trumpet that inmates need to hire them right now to assist in First Offender motions for reduction. This is despite the fact that (1) no one knows for sure whether the first offender proposal will in the USSC’s final 2018 amendment package sent to Congress; (2) no one knows for sure to whom and to what extent any first offender proposal would apply; and (3) no one knows whether the first offender proposal will ever be made retroactive. It is not all that comforting that the last change to the criminal history Guidelines, to eliminate a point previously added if the new offense was recent to a prior probation or prison term, was not made retroactive. But none of this deters hopemongers on the outside from collecting money from inmates and their families.

When the Sentencing Commission announced several weeks ago that last Friday’s meeting would include a “possible vote to publish proposed guideline amendments and issues for comment,” many thought that the vote would be to decide on which of the options in the first offender proposal to advance. Instead, the Commission advanced a synthetic-drug guideline, made changes in an immigration offense guideline, and voted on unspecified “technical amendments.” There was not a word on anything else.

bureaucracy180122Shortly after the meeting, however, the Commission clarified its rather opaque procedures. In a press release, the USSC noted toward the bottom of the page that “[t]oday’s proposals join other proposed amendments published in August 2017 that were held over from the previous amendment cycle. (Read “holdover” proposals”.)  The Commission is expected to vote on the full slate of proposed amendments during the current amendment year ending May 1, 2018.”

So the Commission meant only to add to the holdover amendments it published last August, when the latest iteration of the “first offender proposal” was promulgated. Still, they could have said that at some point in their 17-minute meeting. But apparently, the first offender proposal may still be on track, and may still be in the package to be voted on by May 1.

We’re not just one-issue voters, complaining about the Commission’s failure to explain that the first offender proposal was still in the package lurching toward May 1. Ohio State University law professor and sentence guru Doug Berman noted last Friday in his sentencing blog that “my own cursory understanding of all these proposals suggests to me that the holdover proposal addressing first offenders and alternatives to incarceration may be the only very consequential proposed amendment potentially in the works….”

U.S. Sentencing Commission, USSC Proposes Amendments (Jan. 19, 2018)

– Thomas L. Root


Last Week’s White House Meeting on Crim Justice Reform: Beginning of the End? – Update for January 19, 2018

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


wall180119Earlier this week, we reported that President Trump and Jared Kushner, his son-in-law and senior adviser, met with criminal justice reform advocates a week ago on prison reform and re-entry. We noted that “the meeting emboldened some advocates who saw it as a sign the White House is officially on board with criminal justice reform. Mark Holden, general counsel of Koch Industries, came away from the meeting with a sense of optimism, noting that President Trump was an active participant during the 45-minute session. “I saw some passion there,” Holden said, admitting that he hopes prison reform can be the start to broader federal criminal justice reform.

Now for the darker side. Vice reported this week that Kushner’s plan for a bipartisan initiative to reform the U.S. criminal justice system hit the wall (and we don’t mean that wall) prior to the meeting. Kushner’s comprehensive proposal – which included incentives to companies for hiring former felons, investing in inmates once they leave prison – most importantly focused on reforming sentencing laws, especially mandatory minimum sentencing.

sessions180119So nearly everyone was surprised that last week’s meeting omitted any talk about sentencing reform as such, especially about reforming mandatory minimums. It appears that in order to entice Attorney General Jefferson Beauregard Sessions III – who adamantly opposes reforming mandatory minimum sentencing – to attend the roundtable, Kushner had to drop any mandatory minimum discussion from the agenda. Thus, the AG has effectively blocked sentencing reform from becoming part of the White House reform agenda, Vice reports, citing statements made by three people who have attended meetings with White House advisors on the issue over the past few months.

“Sessions was very powerful in the Senate, but I think he’s actually more powerful now to oppose the bill,” Vice quotes a source familiar with White House meetings on the issue as saying. “He has an ability to keep in line several members on the conservative side, the DOJ would take a position on the bill, that would scare the Republicans.”

At the meeting, the President suggested creating more programs for job training, education, mentoring and drug addiction aimed at rehabilitation.

Ohio State University law professor Doug Berman, who writes the authoritative Sentencing Law and Policy blog, wrote earlier this week that he “remain confident that any number of bills with sentencing reform components could get a majority of votes on the floor of the House and the Senate if leadership would bring these bills up for a vote.  But I surmise AG Sessions has enough sway with leadership (especially in the Senate) to get them to prevent a vote on any bills the AG opposes.”

To be sure, some corrections reform could be a significant boost to many of the 183,470 federal prisoners in the system, reaching substantially more of than reforms in mandatory minimums, which would affect about 25% of the population. But that 25% is serving a disproportionate amount of the time handed out to inmates. What’s more, much of the talk about corrections reform is focusing on “nonviolent” offenders, no doubt because limiting any incentives to nonviolent offenders is a much easier “sell” to the public.

violence151213But violent offenders by and large get out of prison, too, and logic suggests that effective rehabilitation of someone who has in the past bludgeoned a grandmother might yield substantially more public safety benefit than rehabilitating someone who sold marijuana on the street corner.

I received a thoughtful email from a “violent offender” earlier this week. He complained that

[e]very time I read these newsletters all they talk about is reform for non-violent offenders. They say that these reforms and programs are designed to help non-violent offenders reintegrate back into society and to give them a chance to become normal citizens again. Why just non-violent-offenders? Why wouldn’t you want all offenders to get out and become normal citizens again… Just because an inmate has what is considered a violent charge does not make that person in fact violent. In most cases it just makes him/her stupid. I have been locked almost 16 years. I have never had even one write up for disciplinary action. I have taken over 60 programs while in Federal custody. But because I committed a crime with a violent nature I have been designate as a Public Safety Factor. This has excluded me from getting to go to camp, Half-way house, home confinement and any reduction in my sentence. I did wrong, really wrong and I have tried every day of my sentence to make amends and to change the person I am into a person who can be a good citizen again. The question is why have I been good? The answer is that I want to change…

heraclitus180119Heraclitus wrote that ““No man ever steps in the same river twice, for it’s not the same river and he’s not the same man.”

Heraclitus understood it. Our inmate correspondent understands it. Just about everyone gets it… except for the AG.  But that hardly matters… it seems that as long as Mr. Sessions is the Attorney General (and has President Trump’s ear, a situation that changes from day to day), sentencing reform is foundering.

Vice News, Jared Kushner’s prison reforms hit a brick wall called Jeff Sessions (Jan. 17, 2018)

Sentencing Law and Policy, Detailing how AG Sessions seeks to block sentencing reforms in White House criminal justice reform push (Jan. 17, 2018)

The Hill, Trump, Kushner meet with advocates on prison reform (Jan. 11, 2018)

–    Thomas L. Root

Thinking About Stuff That’s Not Interesting – Update for January 17, 2018

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 because we’re human… or maybe because we all have the attention span of a gnat. But everybody’s interested in substance; no one cares about procedure.

tedious180118Substantive law is interesting: does a gun in the closet of a marijuana farmer support an 18 USC 924(c) mandatory 5-year consecutive sentence? If you break into a building housing both a pizza joint and a beauty parlor, and pilfer both stores, is that a single burglary or two for Armed Career Criminal Act cases? The issues are understandable, fact-laden and, frankly, interesting.

But who cares about the niceties of whether a Rule 60(b) motion after denial of a 28 USC 2255 petition is a legitimate claim about the integrity of the post-conviction proceeding or a second-or-successive 2255? About whether an appeal/post-conviction waiver in a plea agreement encompasses a motion for sentence reduction? Talk about counting angels on the head of a pin! This stuff is, as a judge once intoned at us during a less-than-effective cross-examination, is te-ee-ee-dious.

angels170726OK, it’s tedious. But’s also very consequential. Consider the world of post-judgment motions. Most everyone knows that filing a motion under Rule 60(b) of the Federal Rules of Civil Procedure to try to resurrect a 2255 motion is fraught with procedural peril. After the 2005 Supreme Court decision in Gonzalez v. Crosby, a Rule 60(b) motion may well be considered a second-or-successive 2255, unless it is narrowly focused on a defect in the 2255 proceeding itself.

But how about a Rule 59(e) motion? F.R.Civ.P. 59(e) lets the loser file a motion to alter or amend the judgment within 28 days after the judgment. One of the benefits of a timely-filed 59(e) motion is that it stops the clock running on the time to file a notice of appeal. It is almost a no-brainer: file a 59(e), and you can buy a lot of time before the appeal is due.

John Uranga is a Texas state prisoner. States, like the Feds, all have procedures for post-conviction challenges to criminal convictions. John filed his state petition, and was shot down. He appealed through the state court system and lost at every step.

apple160516When that happens, a state prisoner has the right to file a motion in U.S. district court under 28 USC 2254. This sort of gives a state prisoner a second bite of the apple, although the standard for a federal court reversal of a state court denial is pretty high. John was in the U.S. District Court for the Northern District of Texas on his 28 USC 2254 motion, and – just like he had in the state system – the District Court ruled against him. After he lost his 2254 proceeding, he filed a 59(e) motion, arguing that the court should have considered an amendment he had filed to the 2254 motion before ruling against him.

Last week, the 5th Circuit made the business of filing a 59(e) motion a lot riskier. Pointing out that a 59(e) can be a second-or-successive post-conviction motion just as easily as can be a Rule 60(b) motion, the Court held that if it decides the motion is “a timely filed motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), then the deadline for filing a notice of appeal would be tolled until the entry of the order disposing of that motion. However, a purported Rule 59(e) motion that is, in fact, a second or successive Section 2254 application is subject to the restrictions of the Antiterrorism and Effective Death Penalty Act and would not toll the time for filing a notice of appeal.”

John was lucky: the appellate court said his 59(e) motion was legit. But there’s a caution here for inmates filing 2254s and 2255s: a 59(e) motion is not necessarily a time-stopper.

Uranga v. Davis, Case No. 15-10290 (5th Cir., Jan. 12, 2018)

– Thomas L. Root


Lots of Heat Generated Last Week on Sentence Reform – But is There Light? – Update for January 16, 2018

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


justicereform161128President Trump and Jared Kushner, his son-in-law and senior adviser, met with criminal justice reform advocates last Thursday on prison reform and re-entry, as well as the successes states such as Georgia, Kansas and Kentucky have had in enacting programs aimed at reducing recidivism rates and rehabilitating inmates. The White House described the meeting as being intended to explore strategies to “equip nonviolent prisoners with the skills and opportunities needed for an honest second chance to correct their course in life and return to society as productive, law-abiding citizens.”

Trump said his administration is committed to helping former inmates become productive, law abiding members of society. “Two-thirds of the 650,000 people released from prison each year are arrested again within three years. We can help break this vicious cycle through job training, very important, job training, mentoring and drug addiction treatment… We’ll be very tough on crime, but we will provide a ladder of opportunity for the future.”

A White House official told The Hill that prison reform was discussed at the presidential retreat at Camp David a week ago weekend and that the Administration has been hosting roundtable discussions on prison reform and re-entry since last summer.

Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III – like inviting the fox to a meeting on chicken coop security.

Guests at Thursday’s meeting included Matt Schlapp, board chairman of the American Conservative Union; Brooke Rollins, president of the Texas Public Policy Foundation; Republican Governors Matt Bevin (Kentucky) and Sam Brownback (Kansas); Koch Industries general counsel Mark Holden; and Shon Hopwood, a former federal inmate who is now an associate professor at Georgetown University Law Center and a member of the FAMM Board of Directors. Thursday’s discussion also included Attorney General Jefferson Beauregard Sessions III and Trump’s chief of staff, Gen. John Kelly.

The meeting emboldened some advocates who saw it as a sign the White House is officially on board with criminal justice reform. “It has long been an excuse used on the Hill that we need to see where the White House is on this issue and this is the positive signal the folks on the Hill have been waiting on,” said Holly Harris, executive director of Justice Action Network. “I don’t think there’s going to be any more justifications to hold up this legislation,” she said.

Holden came away from the meeting with a sense of optimism. The President Trump was an active participant during the 45-minute session. “I saw some passion there,” he said. “He seemed like he got the issue, understood it and connected with it.” Holden said he hopes prison reform can be the start to broader federal criminal justice reform.

Rollins said, “I really think the White House is looking at lots of different avenues forward,” from congressional action to executive orders. Sessions, who has criticized granting leniency to drug offenders and supports mandatory minimums, suggested at the meeting he might be open to compromise on ideas such as job training. “The president talking about prison reform is a good thing,” said Kevin Ring, president of FAMM.

The meeting was not without its critics. Mark Mauer, executive director of the Sentencing Project, said, “more re-entry programming, the kind Kushner is suggesting, would be welcome, but a sole focus on that initiative reveals two grievous flaws. First, the programming provisions being discussed on Capitol Hill contain no funding allocation. Apparently, there is hope that faith-based organizations will emerge to provide these services pro bono… Second, dropping the sentencing provisions of the Grassley-Durbin legislation from the Trump administration’s reform conversations guarantees that there will be no significant inroads made into reversing mass incarceration. Thousands of federal drug defendants will be sentenced to decades of incarceration and resources will be squandered that could more effectively be directed to prevention and treatment initiatives.”

trump180116Others have objected that the meeting does not include any liberal groups. However, an anonymous conservative participant told Reuters that “excluding organizations that are seen as liberal, like the ACLU or the NAACP, and leaving out sentencing reform was necessary to gain thetea leaves, I think what they’ve done is sat down with Mr. Sessions and got him to agree to part of the reforms,” said the conservative leader, who requested anonymity in order to freely discuss the issue.

Meanwhile, the American Bar Association sent a letter to Sens. Charles Grassley (R-Iowa) and Diane Feinstein (D-California), in support of the Sentencing Reform and Corrections Act of 2017. ABA President Hilarie Bass said that while the ABA was “disappointed by the inclusion of some new mandatory minimum sentencing provisions in the current draft, we believe that S. 1917 will, overall, create a more just criminal justice system than the one currently in place. Enactment will help focus prosecutorial and correctional resources on offenders who commit serious crimes that pose the greatest risk to public safety and will permit more sentencing flexibility for low-level, nonviolent offenders whose role and culpability will now receive more careful and balanced consideration by sentencing judges. It will also expand recidivism-reducing programs and juvenile justice reform to make sure that those in prison have a chance to reintegrate into society.”’

Finally, Sen. Cory Booker (D-New Jersey) and Sen. Kamala Harris (D-California) were both named to the Senate Judiciary Committee last week. Sen. Booker has sponsored criminal justice reform legislation in the past, and is a co-sponsor of SRCA17. Sen. Harris has occasionally supported criminal justice reform, such as when she joined with Sen. Rand Paul (R-Kentucky) to back bail reform.

harris180116Some question Sen. Harris’s sincerity, however. As San Francisco’s district attorney and then as California’s attorney general, Harris rarely strayed far from a punitive law-and-order mentality. Last week, Reason warned that “Criminal justice reformers shouldn’t get their hopes up that she’ll be a reliable ally. During her time as San Francisco’s district attorney, Harris oversaw the city’s mismanaged crime lab. A San Francisco superior court judge ruled that the D.A.’s office ignored demands that it take responsibility for the lab’s failings, and that it violated defendants’ rights by hiding information about a corrupt technician who had been stealing cocaine.”

The Hill, Trump, Kushner meet with advocates on prison reform (Jan. 11, 2018)

Newsweek, Trump and Kushner’s prison reform plan not expected to reduce sentences or fix prison conditions (Jan. 11, 2018)

Reason.com, Kamala Harris: No Friend to Criminal Justice Reform (Jan. 12, 2018)

– Thomas L. Root LISAStatHeader2small