BOP Earned Time Credits Still a Mess – Update for January 19, 2023

Leave a comment

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

FSA CREDIT AUTO-CALC CREATES HAVOC (AGAIN)

After a year of fits and starts, the Federal Bureau of Prisons last week rolled out its latest iteration of the automatic calculation of inmates’ First Step Act credits. Some prisoners were released (or at least saw their time cut) due to the new calculations. But it seems a larger number still was left confused and unhappy, according to Forbes.

release161117On the Early Release from Federal Prison/Cares Act/First Step Act Facebook page, one commenter reported that his halfway house reported “a glitch in the system and that to give them until the 18th to have it corrected, but they are aiming for the end of this week.” On January 12, Bruce Cameron of Federal Prison Authority reported on the Facebook site that the BOP was “aware of a couple of issues that probably caused all the problems most are having… people being marked as ineligible who are eligible and have been eligible the whole time” and “a glitch that is causing people to be earning 10 days a month instead of 15 days a month. This would be the reason why you wouldn’t see all your time you are supposed to have.”

Yesterday, Cameron told his Facebook followers, “For those impacted by the ‘glitch’ put your patience hat on for February 6!”

Writing in Forbes, Walter Pavlo reported that “while many prisoners were released this week because of the new calculation, many of them would have gone home earlier if the BOP had correctly implemented the FSA calculator much earlier… The issue that is causing much of this problem is two-fold; a correct interpretation of the FSA that most everyone forgot about and yet another error in the FSA calculator.”

Pavlo said that because FSA credits can only be applied when the credits earned equals or exceeds the amount of time remaining on the sentence, “Those prisoners who had credits that suddenly disappeared really still have them, they just cannot be applied yet because they have more days remaining on their sentence than they do FSA credits.”

computerglitch230120Pavlo said the second problem is whether a prisoner earns 10 days or 15 days of FSA credit a month. Subsection (d)(4)(A)(ii) of 18 USC 3632 says that prisoners with a minimum or low PATTERN score “who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days of successful participation” in programming. The BOP interprets this to mean that prisoners must score low or minimum for two assessments before they can earn 15 days rather than 10.

Even if this interpretation is right, something that is less than clear, the new auto-calc program did not detect the second PATTERN risk assessment score, according to Pavlo, “so prisoners received only 10 credits for each month of programming rather than 15 after the second PATTERN score. It is a problem that the BOP is going to correct but there is no timeline for that fix.”

Forbes, Working Out The Bugs On The Bureau Of Prisons’ First Step Act Calculator (January 12, 2023)

Facebook, Early Release from Federal Prison/Cares Act /First Step Act public group (January 12, 2023, and January 19, 2023)

– Thomas L. Root

New Day Dawning for Compassionate Release? – Update for January 17, 2023

Leave a comment

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

SENTENCING COMMISSION ISSUES DRAFT COMPASSIONATE RELEASE AMENDMENTS

USSCvanwinkle230117For the first time in five years, the U.S. Sentencing Commission last week issued draft Guidelines amendments that – after public comment and a 6-month Congressional review period – will become effective in November.

The USSC’s draft amendments cover everything from the drug safety valve to extra points off for defendants with a zero criminal history score to tougher guideline numbers for gun straw purchasers. But these draft changes are of lesser interest to prisoners because nothing the Commission changes in the guidelines is retroactive unless the USSC goes through a separate amendment process to make it so.

The last time that happened was the “drug-minus-two” change in 2014. Whether any of the sentencing changes the USSC issued in draft form last week will ever make the retroactivity cut is not yet clear.

The compassionate release policy statement that the USSC rolled out, however, will have applicability for people already serving a sentence. The Guidelines applied at sentencing have been advisory for the past 18 years, but the Commission’s compassionate release policy, USSG § 1B1.13, is not: under 18 USC § 3582(c)(1)(A) – the  “compassionate release” provision of the sentencing statute – a district court must ensure any sentence reduction decision “is consistent with applicable policy statements issued by the Sentencing Commission.”
compassionlimit230117The existing compassionate release policy was written before the First Step Act passed, for an era in which only the Bureau of Prisons could bring a compassionate release motion on behalf of an inmate. Since First Step passed, most (but not all) circuit courts have ruled that § 1B1.13 is not binding because it had not been amended to include First Step changes. While that freed district courts to grant compassionate release in circumstances other than the few listed in the old § 1B1.13, it wasn’t all good.

“Commission data have indicated that in recent years — over the COVID-19 pandemic and without a Commission quorum — the district courts have granted compassionate release at varying rates,” US District Court Judge Carlton W. Reeves, Commission chairman, said at last week’s USSC meeting. “It is my sincere hope that our work… brings greater clarity to the federal courts and more uniform application of compassionate release across the country.”

According to the USSC, people in Oregon had a 62% chance of getting a compassionate release grant. People in the Middle District of Georgia had a 1.5% chance. Giving federal judges the freedom to define for themselves what justifies a sentence reduction is a great thing when it frees the jurists from unreasonably strict limitations. It’s not so great when defendants with similar histories and offenses are treated dramatically differently due to an accident of geography.

The draft § 1B1.13 amendments propose additions to circumstances justifying compassionate release that include “medical conditions that require long-term or specialized medical care, without which the defendant is at risk of serious deterioration in health or death, that are not being provided in a timely or adequate manner; risk of being affected by a disease outbreak in prison for which the defendant is at increased risk of suffering severe medical complications or death; the incapacitation of the defendant’s parent when the defendant would be the only available caregiver; the defendant has been the victim of sexual assault or physical committed by a BOP employee or contractor; or “the defendant is serving a sentence that is inequitable in light of changes in the law.”

compassion160208The proposal also suggests a “catch-all” provision that “the defendant presents an extraordinary and compelling reason other than, or in combination with” the other circumstances the Commission has proposed for the beefed-up  § 1B1.13. 

The USSC draft proposals also include a provision to amend § 1B1.3 the “relevant conduct’ provision that tends to run up sentencing ranges, “to add a new subsection (c) providing that acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction.” As noted, no one at this point knows whether this might become retroactive in the future.

Reuters, U.S. panel proposes limiting sentencing of defendants for acquitted conduct (January 12, 2023)

USSC, US Sentencing Commission Seeks Comment on Proposed Revisions to Compassionate Release, Increase in Firearms Penalties (January 12, 2023)

USSC, Proposed Amendments to the Sentencing Guidelines (Preliminary) (January 12, 2023)

Sentencing Law and Policy, US Sentencing Commissions publishes proposed guideline amendments and issues for comment (January 12, 2023)

– Thomas L. Root

That’s Amaury! – 6th Says Court Can’t Choose to Believe One Side’s § 2255 Facts Without Hearing – Update for January 13, 2023

Leave a comment

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

6TH SAYS CLASHING § 2255 AFFIDAVITS REQUIRE A HEARING

When a prisoner files a 28 USC § 2255 post-conviction motion claiming his conviction or sentence was marred by poor lawyering, district courts often manage to find all manner of ways to believe the government’s version over the inmate’s.  Last week, the 6th Circuit offered a rare reminder that this isn’t how it is supposed to work.

facts161228The Assistant U.S. Attorney prosecuting Amaury Villa’s case emailed Amaury’s counsel in January 2016 with an offer to enter into a cooperation agreement. Amaury’s lawyer says he told Amaury about the offer the day it was made. Amaury says that he learned about that offer only years later – after his conviction was final – when he obtained the relevant portion of his lawyer’s case file.

As soon as he got the file, Amaury amended his pending 28 USC § 2255 habeas corpus motion with his own affidavit, claiming his lawyer was ineffective for not disclosing the offer at the time. Not to be outdone, the government filed an affidavit from Amaury’s former lawyer, claiming he had told his client right away about the proposed deal.

justthefacts220810The district court summarily adopted the government’s view of the facts and denied Amaury’s motion to amend as untimely. Last week, the 6th Circuit reversed and ordered an evidentiary hearing.

“When a defendant presents an affidavit concerning a factual narrative of the events that is neither contradicted by the record nor inherently incredible and the government offers nothing more than contrary representations to contradict it,” the Circuit said, “the defendant is entitled to an evidentiary hearing.”

In this case, the 6th observed, the record contained conflicting affidavits regarding whether Amaury knew of the government’s offer. Thus, the record before the district court did not “conclusively show” that Amaury was not entitled to relief.

The government met with Amaury in 2016, a meeting his lawyer did not attend because the attorney’s father had passed away the night before. “Although an interpreter was not present at the meeting and (according to Villa) his English was ‘not very good,’” the Circuit said, the AUSA told Amaury that the government wanted him to testify against another defendant (for which Amaury presumably would have gotten credit in the form of a better sentence). The AUSA did not mention a cooperation agreement as such, and the meeting was a short one. Amaury later pled guilty without a plea agreement.

confused230113On appeal, the government argued that based on the AUSA’s comments in the short meeting, Amaury should have been aware there was a cooperation agreement on the table. The Circuit rejected that argument: “During that meeting… the AUSA mentioned neither the cooperation agreement nor anything else about what Villa might receive in return for his testimony. Thus, to discover the AUSA’s earlier offer to Villa’s attorney, Villa himself, in effect, would have needed to commence bargaining with the AUSA — by asking what he might have received in exchange for his testimony… That is too much to ask of an uncounseled defendant conversing in his second language with a federal prosecutor.”

Villa v. United States, Case No. 22-5437, 2023 U.S.App. LEXIS 12 (6th Cir., January 3, 2023)

– Thomas L. Root

Four Years After First Step Passes, USSC to Roll Out Draft Compassionate Release Policy – Update for January 12, 2023

Leave a comment

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

SENTENCING COMMISSION TO PUBLISH FIRST DRAFT PROPOSED GUIDELINES AMENDMENTS TODAY

USSC170511The U.S. Sentencing Commission will adopt its first set of draft proposed amendments to the Federal Sentencing Guidelines in five years when it meets today.

The Commission’s meeting, which starts at 1 p.m. Eastern time,  will be live-streamed.

Last October, the Commission announced that its top priority is amending USSG § 1B1.13, the policy statement on compassionate release.

The compassionate release statute, 18 U.S.C. § 3582(c)(1)(A), requires judges to only grant compassionate releases that are “consistent with applicable policy statements issued by the Sentencing Commission.” However, § 1B1.13 was written when only the BOP could bring compassionate release motions. The compassionate release statute was changed by the First Step Act, passed four years ago at the same time the Sentencing Commission lost its quorum,

Most (but not all) Circuits have since ruled that § 1B1.13 was written for a compassionate release regime that no longer exists and thus is not binding on district courts until it is amended.

Other changes that may be issued in draft form include changes in the drug Guideline (USSG § 2D1.1) due to First Step’s lowering of mandatory drug minimums, resolving circuit conflicts over whether the government may withhold a motion for a third acceptance of responsibility point because a defendant had moved to suppress evidence before entering a guilty plea, and amendments to the Guidelines career offender chapter that would provide an alternative to the “categorical approach” in determining whether an offense is a “crime of violence” or a “controlled substance offense.”

The draft the Commission will issue Thursday will be open for public comment for a period of time, and then a slate of proposed amendments will be adopted by May 1.  Under 28 U.S.C. § 994(p), the proposed amendments become effective November 1st unless Congress blocks them.

U.S. Sentencing Commission, Public Meeting – January 12, 2023 (January 3, 2023)

US Sentencing Commission, Commission Sets Policy Priorities (October 28, 2023)

– Thomas L. Root

“THERE IS A REASON THIS IS CALLED COMPASSIONATE RELEASE” – Update for January 11, 2023

Leave a comment

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

4TH CIRCUIT SLAMS DISTRICT COURT ‘ROTE’ DENIAL OF COMPASSIONATE RELEASE 

compassion160124Some 15 years ago, Lonnie Malone was sentenced to 330 months for a drug conspiracy and 18 USC § 924(c). After serving 11 years, Lonnie sought compassionate release based on his poor health and advanced age. The district court denied his motion, relying solely upon USSG § 1B1.13.

The following year, the Bureau of Prisons deemed Lonnie to have a severe COVID-19 risk, and sent him to CARES Act home confinement. Lonnie then filed a second compassionate release motion, again arguing his advanced age and severe health conditions. As well, Lonnie focused on the COVID pandemic, relevant 18 USC § 3553(a) sentencing factors, the “extreme” nature of his sentence, and his inability to receive social security on home confinement.

The district court was not impressed, and again denied Lonnie compassionate release, tersely noting that “considering these facts and the § 3553(a) factors… no further relief is warranted.”

Last week, the 4th Circuit reversed the compassionate release denial, finding the “district court’s reasoning both inadequate and at odds with the record.” The Circuit panel explained that while Lonnie

was sentenced within the applicable guidelines range and the court then believed his sentence necessary for community protection” back in 2008, his “severely degenerated health and advanced age provide strong grounds for reweighing the relevant sentencing factors. Because motions for relief under § 3582(c)(1)(A)(i) ask courts to balance the severity of the inmate’s personal circumstances, on the one hand, against the needs for incarceration, on the other, a district court’s task is to determine whether these relevant § 3553(a) factors weigh against sentence reduction in light of new extraordinary and compelling reasons.”

Here, the Circuit said, Lonnie’s “new extraordinary and compelling circumstances inhibit him from being a danger to the community. For one, Malone was moved to minimal security while in prison, demonstrating that he posed no threat while incarcerated. Even more, since the BOP transferred Malone from his prison facility to home confinement during the pandemic’s emergency period, this indicates the BOP’s assessment that Malone is not a danger to the community… Thus, if the district court was determined to keep Malone on home confinement for the five years remaining on his sentence, it would “not meaningfully advance the purposes of sentencing.”

compassion160208Citing Lonnie’s lack of a criminal history and his having served 14 years, taken multiple classes and being put in a camp – along with “extraordinary and compelling health-related circumstances [that] have condemned him to a life filled with limitations,” the 4th held, “to affirm the district court’s denial would not only be a great disservice to Malone, but to any defendant with failing health seeking autonomy in their twilight. There is a reason this is called compassionate release, after all.”

The Circuit said, “In sum, the district court’s § 3553(a) reasoning was a ‘rote’ statement lacking the necessary rebalancing regarding Malone’s conditions at the time his motion was filed.’

United States v. Malone, Case No. 21-6242, 2023 U.S.App. LEXIS 207 (4th Cir., January 5, 2023)

– Thomas L. Root

Third Circuit May Be Gunning for § 922(g) Felon-In-Possession – Update for January 10, 2023

Leave a comment

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

3RD CIRCUIT CALLS FOR EN BANC REHEARING ON WHETHER FELON-IN-POSSESSION IS CONSTITUTIONAL

On November 16, 2022, the 3rd Circuit upheld the constitutionality of the 18 USC § 922(g)(1) felon-in-possession statute. That ruling has just been vacated (and may be in jeopardy).

gun160711Bryan Range, who had been sentenced to probation a quarter century ago for $2,500 in food stamp fraud, had sued the Attorney General for the right to buy a gun, arguing that after last June’s Supreme Court decision in New York State Rifle & Pistol Ass’n v Bruen, § 922(g)(1)’s denial of his right to own a gun because of a prior felony conviction was a 2nd Amendment violation.

In November, a three-judge panel denied Bryan’s claim in a per curiam opinion. This normally suggests the panel found the holding was so unremarkable as not to require a signed decision. In this case,  however, the panel said it was so issued to “reflect both its unanimity and the highly collaborative nature of its preparation.”

The lengthy order held that Bryan’s 25-year-old “conviction places him outside the class of people traditionally entitled to 2nd Amendment rights.”

Last Friday, the Circuit granted Bryan’s petition and ordered rehearing in front of all 14 of the appellate court’s judges on February 15th.

iloveguns221018The speed with which the full Court ordered rehearing – just three days after Bryan filed his petition – suggests a majority of the judges on the Circuit are very motivated by the issue. Ohio State University law professor Doug Berman, writing yesterday in his Sentencing Law and Policy blog, observed, “I do not know enough about the particulars of all the Third Circuit judges to make confident predictions about how Range will be resolved after en banc reconsideration. But, generally speaking, full circuits do not take up issues en banc when most of the judges are generally content with the panel outcome.”

If the Court ultimately reverses the per curiam decision, the Circuit would be the first to declare § 922(g) unconstitutional after the Bruen decision.

Order Granting Rehearing, Range v. Attorney General, Case No 21-2835, 2022 U.S. App. LEXIS 36088 (3d Cir., January 6, 2023)

Sentencing Law and Policy, En banc Third Circuit to reconsider constitutionality of § 922(g)(1)’s felon-in-possession gun prohibition after Bruen (January 9, 2023)

N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (June 23, 2022)

– Thomas L. Root

Here We Go Again On FSA Credits – Update for January 9, 2023

Leave a comment

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

LUCY, CHARLIE BROWN, FOOTBALL: BOP SAYS FSA CREDIT AUTO-CALC IS HERE

First, it was a Bureau of Prisons official last spring saying that rolling automatic calculation of First Step Act earned-time credits (“FTCs”) would begin August 1, 2022. Then, Director Colette Peters told the Senate Judiciary Committee that the BOP had “completed development of and fully implemented an auto-calculation application for FSA time credits” on August 31, 2022. Then, after a disastrous October recalculation of FTCs, the BOP said on “January 1, 2023, full automation will begin…”

lucycharliebrownfootball230109The BOP’s rollout of FTCs, which for the past four years the agency has known would happen, has been promised more often than Lucy Van Pelt has convinced Charlie Brown that she’ll hold the football for him. The latest promise is that inmates will see the new rolling “auto-calc” on January 9, 2023, that is… um… today.

The United States went from being bombed at Pearl Harbor to dropping an A-bomb on Japan faster (44 months) than the BOP has taken to implementing the First Step Act earned-time credits (48 months plus).

A BOP news release last Friday announced that the Bureau is “recalculating FTC for all eligible individuals. The recalculation is expected to be complete in the coming days.” An internal memorandum distributed to halfway house and home confinement overseers last Friday asserted that FTC “recalculation is expected to be complete by January 9, 2023” but warns that “no releases will occur prior to” that date. The BOP appears to expect a large number of releases in the coming weeks.

For anyone who had been denied FTCs because of incomplete Needs Assessments surveys, the BOP granted a “grace period” that ended December 31st to complete the work. Any prisoner who needed to complete a survey but did not is now unable to reclaim previously-lost FTCs. Beginning January 1st, those still needing to complete Needs Assessment surveys cannot earn FTCs until 30 days after they complete those Assessments.

Likewise, inmates who previously declined programs – something that disqualified them from earning FTCs – have a clean slate for earning FTCs after January 1st. But people who decline programs after that date will not be allowed to earn FTCs as long as they remain in “declined” status.

People in halfway houses or on home confinement will not be affected by the changes, and “will retain prospectively estimated FTCs despite declined programs prior to implementation of the automatic calculation or any incomplete Needs Assessment prior to community placement,” according to the press release.

youcantdothat230109There are still some serious loose ends to the FTC program that the BOP has not addressed. First, the agency is still refusing to apply FTC credits to shorten sentences for those with detainers. Another magistrate judge held two weeks ago that the BOP could not exclude prisoners with immigration detainers from using their FTCs, ruling that the BOP is “required to apply time credits to eligible prisoners who have earned them and cannot categorically make prisoners ineligible for such credits in a manner that contravenes the statutory scheme set forth in 18 USC § 3632.”

Second, the BOP has yet to apply its promise that it would issue guidance to enable the agency to “work on a case-by-case basis with eligible inmates in RRCs [halfway houses and on home confinement] to identify appropriate available programming for them to earn FSA Time Credits…” Inmates in halfway houses and home confinement, especially those doing the transitional drug abuse program required of them for RDAP credit, remain in BOP custody and thus should be eligible for FTCs. The BOP has not announced any plan for fulfilling its statutory obligation to them.

BOP, Update on Calculation of First Step Act Time Credits (January 6, 2023)

BOP, Residential Reentry Center & Home Confinement Resident’s Message Auto-Calculation of Federal Time Credits (January 6, 2023)

Sierra v. Jacquez, Case No 2:22-cv-01509, 2022 U.S.Dist. LEXIS 234525 (W.D. Wash, Dec. 27, 2022)

– Thomas L. Root

Will Sentencing Based on Acquitted Conduct Get Supreme Court Review – Update for January 6, 2023

Leave a comment

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

PUSH TO GET SCOTUS TO TAKE ‘ACQUITTED CONDUCT’ MAY BEAR FRUIT

A probable Supreme Court decision today on granting review to McClinton v. United States is gaining media notice.

McClinton examines sentencing for acquitted conduct, a judicial phenomenon described by the Associated Press as giving defendants “additional prison time for crimes that juries found they didn’t commit.”

Sentencing a defendant for what’s called “acquitted conduct” has gone on for years, based on United States v. Watts, a 1997 Supreme Court decision. There, a divided Court in a summary disposition held that use of acquitted conduct at sentencing does not offend the 5th Amendment Double Jeopardy Clause.

acquitted230106Maybe not. “But lower courts,” petitioner McClinton complains in his request for SCOTUS review, “have long misinterpreted Watts to foreclose all constitutional challenges to the use of acquitted conduct at sentencing, including under the 5th Amendment’s Due Process Clause and the 6th Amendment’s right to trial by jury.”

Since Watts, the high court has rejected several petitions asking for review of the question of whether using acquitted conduct at sentencing is unconstitutional. Nine years ago, Justice Scalia – joined by Justices Thomas and Ginsburg – highlighted the need for the Supreme Court “to put an end to the unbroken string of cases disregarding the Sixth Amendment” by enhancing sentences based on acquitted conduct, proclaiming in a dissent to the denial of review in another case. Scalia bluntly wrote, “This has gone on long enough.”

Scalia and Ginsburg have since died, but two other justices, Gorsuch and Kavanaugh, voiced concerns about using acquitted conduct at sentencing while serving as appeals court judges. “Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial,” Kavanaugh wrote in United States v. Bell, a 2015 D.C. Circuit case.

scotus161130With the addition of Justice Ketanji Jackson, a former public defender (who also served on the Sentencing Commission), to the Supreme Court, there now could be the 4th vote needed to take up the issue, according to Ohio State law professor Doug Berman, a sentencing law expert and author of one of the four briefs on file support McClinton’s bid for SCOTUS review.

The Senate Judiciary Committee approved the Prohibiting Punishment of Acquitted Conduct Act of 2021 (S.601) in June 2021, which would have stopped the use of such conduct in federal sentencing. The bill never was voted on by the full Senate, however, and died last Tuesday when the 117th Congress expired.

The McClinton petition for certiorari has some horsepower behind it, having collected six amicus briefs supporting review, including one from 17 retired federal judges who say that based on their combined 300 years “experience as Article III judges… [we] emphasize the unfairness of the sentence in this case. [McClinton’s] district court relied upon acquitted conduct to essentially quadruple the defendant’s sentencing range, and its decision reflects a more widespread problem in the criminal justice system.”

The Supreme Court will announce decisions made in today’s conference on Monday.

AP, Supreme Court asked to bar punishment for acquitted conduct (December 28, 2022)

McClinton v. United States, Case No. 21-1557 (petition for certiorari, filed June 10, 2022)

United States v. Bell, 808 F.3d 926 (D.C. Cir., 2015)

Jones v United States, 135 S.Ct. 8 (2014) (dissent from denial of certiorari)

S.601, Prohibiting Punishment of Acquitted Conduct Act of 2021 (117th Congress)

Sentencing Law and Policy, Fingers crossed that SCOTUS might review acquitted conduct sentencing enhancements (December 28, 2022)

– Thomas L. Root

They Begged His Pardon: Biden Finally Grants Short List at Year’s End – Update for January 5, 2023

Leave a comment

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

BIDEN GRANTS HANDFUL OF PARDONS

Maybe I was too hasty in criticizing President Biden last week for granting no Christmas clemency petitions, with about 18,000 petitions for commutation or pardon pending (many for years).

pardon160321Biden finally issued pardons to six people last Friday, four for various low-level drug offenses, one for the illegal sale of whiskey, and one to an 80-year-old woman who killed her husband 47 years ago. Three of the crimes had occurred at least a quarter century ago, and the fourth – an Air Force enlisted man convicted of taking (but not distributing) Ecstasy – happened about 20 years ago.

The White House statement said the pardoned people had served sentences and “demonstrated a commitment to improving their communities and the lives of those around them.”

The pardons came on the last business day of the year. In October, Biden pardoned thousands of unnamed people convicted of simple marijuana possession under federal law. In April, Biden granted three pardons and granted 75 commutations.

Two of the five pardoned last week served about two years in prison. Three of the other four served under a year, and the last one got probation.

At trial, the woman who killed her husband – convicted under District of Columbia law – was denied the right to argue that he had beaten her. Her appeal, the White House said, “marked one of the first significant steps toward judicial recognition of battered woman syndrome, and her case has been the subject of numerous academic studies.”

clemencyjack161229Two years into Biden’s Administration, the theme of his clemency policy seems to be that pardons will issue, favoring very simple drug and politically-preferred offenses, when the crime happened a long time ago.  Commutations – which require actually letting people out of prison – seem to be disfavored by this White House.

A day before the pardon announcement, White House Domestic Policy Council Director Susan Rice said that Biden’s marijuana pardons and scheduling directive were among the administration’s top accomplishments in 2022. Biden issued a scheduling review order in October directing the Dept of Health and Human Services to consider rescheduling pot to a lower-level controlled substance.

Associated Press, Biden pardons 6 convicted of murder, drug, alcohol crimes (December 30, 2022)

White House, Clemency Recipient List (December 30, 2022)

Ibn-Thomas v. United States, 407 A.2d 626 (1979)

Marijuana Moment, Top White House Official Lists Biden’s Marijuana Pardons And Scheduling Review Among Top 2022 Administration Achievements (December 30, 2022)

– Thomas L. Root