Santa’s Bringing Lumps of Coal for the BOP – Update for December 15, 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.

COAL IN THE BOP’S STOCKING


forcedsex161202Senate Subcommittee Blasts BOP Response to Sexual Assault on Inmates: The Federal Bureau of Prison’s clunky and backlogged system for investigating sexual assault has provided protection to a vulnerable population. That’s the good news. The bad news is that those protected have been BOP employees who commit sexual assault, while the inmates – who, of course, are seldom if ever believed – suffer the indignity of being thrown to the curb after suffering the violence and degradation of sexual assault.

Reduced to its essence, that was the conclusion of a bipartisan report issued Tuesday by the Senate Permanent Subcommittee on Investigations.

The investigation found that the BOP has utterly failed to implement the Prison Rape Elimination Act, and that its ineffectual investigation protocol has led to an 8.000-case backlog of sexual assault complaints. The report says that BOP management failures have “allowed serious, repeated sexual abuse in at least four facilities to go undetected.”

“BOP’s internal affairs practices have failed to hold employees accountable, and multiple admitted sexual abusers were not criminally prosecuted as a result,” the report concluded. “Further, for a decade, BOP failed to respond to this abuse or implement agency-wide reforms.”

The investigation found that BOP employees sexually abused female inmates in at least two-thirds of federal women’s prisons over the last decade. The report focused on four prisons — MCC New York, MDC Brooklyn, FCC Coleman, and FCI Dublin — where it says multiple BOP employees abused multiple women.

sexualassault211014Three former inmates testified before the subcommittee, describing “years of horrific abuse by prison staffers who used their unfettered access to vulnerable inmates and threatened them with retaliation if they reported the attacks,” USA Today reported. All three accused the BOP of “often shielding attackers from accountability.”

BOP Director Colette Peters testified that “[a]s an agency, and through the ranks of its dedicated employees, the Bureau continuously works to ensure the safety and wellbeing of our employees, those in our care and custody, and our surrounding communities,” a statement that Ms. Peters should be grateful has not been submitted to the Washington Post Fact Checker.

“As I have said before,” Ms. Peters testified, “I welcome accountability and oversight; and I welcome this hearing.” One suspects she welcomes root canals without novocaine as well.

Senate Permanent Subcommittee on Investigations, Sexual Abuse of Female Inmates in Federal Prisons (December 13, 2022)

Reason, Senate Investigation Finds Federal Prisons Fail to Prevent or Investigate Rapes (December 13, 2022)

USA Today, ‘A living hell’: Former federal inmates describe years of sexual abuse by prison officers (December 13, 2022)

Written Testimony of Colette S. Peters before Senate Permanent Subcommittee on Investigations (December 13, 2022)

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Associated Press Documents BOP “Mess Up and Move Up” Culture: AP’s report last Friday on the Bureau of Prisons “Mess Up and Move Up” employee culture, is resonating.

On Tuesday, Sen. Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, said he plans to question Director Peters about an Associated Press investigation that found the agency has repeatedly promoted and continues to stand by Thomas R. Hinkle, a high-ranking official who beat  inmates in the 1990s.

hinkle221215“I am very concerned about the allegations in this article and whether BOP will address abuses, prioritize safety, and improve their flawed approach to misconduct investigations,” Sen. Durbin tweeted in the wake of the story.

The AP reported that the BOP had repeatedly promoted Hinkle, 57, Deputy Western Regional Director, “despite numerous red flags, rewarding him again and again over a three-decade career while others who assaulted inmates lost their jobs and went to prison.”

Responding to the AP’s questions, Hinkle “acknowledged that he assaulted inmates in the 1990s but said he regrets that behavior and now speaks openly about it ‘to teach others how to avoid making the same mistakes.’” BOP Director Colette Peters defended Hinkle, telling reporters he’s a changed man and a model employee, according to AP.

According to AP, those “mistakes” included inmate beatings, sexual assault, and a public drunkenness arrest in Houston that was later dropped.

AP said its investigation showed “that while the BOP has vowed to change its toxic culture in the wake of Dublin and other scandals — a promise recently reiterated by the agency’s new director, Colette Peters — it has continued to elevate a man involved in one of the darkest, most abusive periods in its history… Hinkle’s rise is a stark example of what BOP employees call the agency’s ‘mess up, move up’ policy — its tendency to promote and transfer troubled workers instead of firing them.”

My prediction:  Hinkle’s last day at the BOP is only a few weeks away at most.

AP,  U.S. Senators demand answers after BOP investigation (December 13, 2022)

AP, The story so far: AP’s investigation into federal prisons (December 9, 2022)

AP, AP Investigation: Prison boss beat inmates, climbed ranks (Dec ember 9, 2022)

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Ex-Warden Garcia Convicted: The former warden of FCI Dublin was convicted in Oakland federal court last week of sexually molesting female inmates and forcing them to pose naked in their cells.

Ray Garcia was found guilty of all eight charges and faces up to 15 years. He was among five workers charged with abusing inmates at Dublin, who claimed they were subjected to rampant sexual abuse including being forced to pose naked in their cells and suffering molestation and rape. The trial was noteworthy for the government arguing to jurors that they should believe inmates and former inmates over Garcia, a position diametrically opposed to Bureau of Prisons policy to not accept uncorroborated inmate testimony under any circumstances.

rapeclub221215Garcia, 55 years old, retired from the BOP last year after the FBI found nude photos of inmates on his government-issued phone. Garcia was charged with abusing three inmates between December 2019 and July 2021.

“Instead of ensuring the proper functioning of FCI Dublin, he used his authority to sexually prey upon multiple female inmates under his control,” U.S. Attorney Stephanie Hinds said, calling Garcia’s crimes a betrayal of the public trust and his obligations as a warden.

Santa Rosa Press-Democrat, Ex-Dublin prison warden convicted of sexually abusing inmates (December 8, 2022)

– Thomas L. Root

Supreme Court Adds Two Criminal Cases to Docket – Update for December 13, 2022

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

SCOTUS GRANTS REVIEW ON TWO CRIMINAL CASES

Last Friday, the Supreme Court agreed to review two federal criminal cases.

In the first case, the Court will consider the constitutionality of 8 U.S.C. § 1324(a)(1), which makes it a crime punishable by up to 10 years in prison to encourage or cause unauthorized immigrants to enter or reside in the United States.

freespeech221213Helaman Hansen was convicted for running a program that promised to help adult unauthorized immigrants become US citizens through adoption. On appeal, the 9th Circuit agreed that the statute violated the 1st Amendment because it is so broad that it would also apply to protected speech – for example, voicing support to a young illegal immigrant (OK, “undocumented” is the politically correct term, but then, if the immigrant were not here illegally, we wouldn’t be writing about this) that she not return to, say, Iceland, but instead fight to qualify for DACA is a federal criminal offense under § 1324(a)(1).

Maybe not the best illustration: stopping hordes of blond-haired blue-eyed people sneaking across our undefended borders is not our problem. Some, like a former President, even liked the idea.

Back to Mr. Hansen: The government appealed the 9th Circuit decision invalidating his conviction. 

Last week the Supreme Court granted review.

In a second case, the high court agreed to take an 18 USC § 924(c) case. Section 924(c) mandates a consecutive sentence of a certain minimum term when a gun is possessed or used in a drug trafficking offense or a violent crime.

carriefgun170807Under 18 USC § 3584(a), a district court may impose either consecutive or concurrent sentences unless a statute requires otherwise. Section 924(c)(1)(D)(ii) of Title 18 requires consecutive sentences but only for sentences imposed “under this subsection.” Efrain Lora was convicted and sentenced under § 924(j), a different subsection that sets punishments where “a person… in the course of a violation of subsection (c), causes the death of a person through the use of a firearm.”

Curiously, § 924(c) includes no requirement that the sentence must be consecutive. This suggests that if an offender is going to use a gun in a violent crime, he should be sure to kill someone (and thus get a possibly better sentence).

Lora argued a district court has the discretion to impose concurrent sentences because § 924(j) creates a separate offense not subject to § 924(c)(1)(D)(ii).

The 2nd Circuit disagreed, holding that the district court was required to impose consecutive sentences because a § 924(j) counts as being “under” § 924(c).

The 3rd, 4th, 8th and 9th Circuits agree with the 2nd Circuit. The 10th and 11th do not. The question the Supreme Court granted review is whether § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed… under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is sentenced under § 924(j).

Both cases will be argued this term and decided by the end of June.

United States v. Hansen, Case No. 22-179 (certiorari granted December 9, 2022)

Lora v. United States, Case No 22-49 (certiorari granted December 9, 2022)

– Thomas L. Root

The Last Chapter for EQUAL Act Gets Written This Week – Update for December 12, 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.

THIS WEEK MAY BE EQUAL ACT’S LAST STAND

noteasycongress221212Politico, a website covering Capitol Hill goings-on, reported last week that efforts to attach the EQUAL Act (S.79) – a bill that would make crack and powder cocaine the same for sentencing, to the National Defense Authorization Act (H.R.8900) – are “no longer expected.”

However, Senate Judiciary Committee chairman Richard Durbin (D-IL) confirmed to Bloomberg that Democrats are still considering attaching the bill to the NDAA, which Congress must approve every year to fund the military. If attaching EQUAL to NDAA fails, the Senate might instead attach it to a package of spending bills to fund the federal government that must pass by this Friday.

Taylor Foy, a spokesperson for Grassley, told Bloomberg that it appears unlikely that a deal will be reached to include a measure on cocaine sentencing in the NDAA, but there might be an opportunity to include the provision in the upcoming government funding package.

Sen Cory Booker (D-NJ), one of the EQUAL Act’s sponsors, admitted, “we’re in a tough negotiation moment right now. I just want to make sure that I focus on doing what I can to get something over the line, as opposed to talking about strategy.”

EQUALgone221212Time is short, with only a few weeks until this congressional session ends on January 3. When the session ends, all unpassed bills – including EQUAL – will disappear.

Although EQUAL passed the House overwhelmingly last summer, it stalled in the Senate as Sen Charles Grassley (R-IA) proposed the SMART Cocaine Sentencing Act (S.4116), an alternative that would maintain a 2.5:1 ratio of crack to powder, and put all retroactivity decisions in the hands of the Dept of Justice. Current talks seem to be adopting Grassley’s 2.5:1 ratio. Senate Democrats have rejected Grassley’s proposal that DOJ should be the sole authority to decide which prisoners should have EQUAL’s benefits applied to their sentences retroactively. As a result, Politico reports, “negotiators are now discussing removing retroactivity altogether, according to a Democratic aide.”

FAMM President Kevin Ring said it would be “immoral to pass a bill that did not provide relief to those whose sentences were so bad that it convinced Congress to change the law.” Holly Harris, president of the Justice Action Network, said, “The thought that this would die at the last minute in a procedural machination in the Senate is unconscionable to me. The obituary on this bill would be the greatest indictment of Washington that you have ever read.”

lameduck221114Writing in his Sentencing Law and Policy blog last week, Ohio State University law professor Doug Berman said, “Given that the House so overwhelming passed the EQUAL Act last year, I want to believe there is a chance for some kind of reforms in the next Congress even with the GOP in control of the House. But that might be crazy talk, so maybe this lame-duck period is the last best chance for crack sentencing reform. But at this late date, I am certainly not optimistic.”

Politico, Cocaine sentencing reform hits ‘tough negotiation moment (December 6, 2022)

National Defense Authorization Act (H.R. 8900)

EQUAL Act (S.79)

SMART Cocaine Sentencing Act (S.4116)

Bloomberg, Senators Seek Deal to End Cocaine Sentencing Disparity Before Year-End (December 6, 2022)

Sentencing Law and Policy, Discouraging report on a possible last gasp for this Congress to pass the EQUAL Act (December 6, 2022)

– Thomas L. Root

A Short Rocket From (Or To) The BOP – Update for December 9, 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.

Today we offer our occasional “short rocket” of BOP news – not all of it good – from the past weeks.

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EX-WARDEN GARCIA CONVICTED, FSA CRITICISM, PRIVATE PRISONS CLOSE, DOJ BLASTS BOP OVER WHITEY BULGER

AUSA Gets Sex Predator Warden: The former warden of FCI Dublin, a federal women’s prison southeast of San Francisco,  was convicted in Oakland federal court on Thursday of molesting inmates and forcing them to pose naked in their cells.

sexualassault211014Ray Garcia was found guilty of all eight charges and faces up to 15 years in prison. He was among five workers charged with abusing inmates at Dublin, who claimed they were subjected to rampant sexual abuse including being forced to pose naked in their cells and suffering molestation and rape.  The trial was noteworthy for the government arguing to jurors that they should believe inmates and former inmates over Garcia, perhaps one of the few examples in recent history of the government believing inmates over guards.

Garcia, 55 years old, retired from last year after the FBI found nude photos of inmates on his government-issued phone. Garcia was charged with abusing three inmates between December 2019 and July 2021.

At trial, Garcia claimed he had photos of naked inmates because he had caught them engaging in sex, and the pictures were evidence of their offenses. Confronted with the fact that he had never filed disciplinary reports against the women he had photographed, he explained he had forgotten to write them up.

Prosecutors introduced evidence that Garcia’s abuse of several inmates followed a pattern that started with compliments, flattery and promises of transfers to lower-security prisons, and escalated to sexual encounters. Garcia is charged with abusing three inmates between December 2019 and July 2021, but others also said he groped them and told them to pose naked or in provocative clothing. Jurors deliberated over parts of three days following a week of testimony, including from several of Garcia’s accusers and the former warden himself.

“Instead of ensuring the proper functioning of FCI Dublin, he used his authority to sexually prey upon multiple female inmates under his control,” U.S. Attorney Stephanie Hinds said, calling Garcia’s crimes a betrayal of the public trust and his obligations as a warden.

Santa Rosa Press-Democrat, Ex-Dublin prison warden convicted of sexually abusing inmates (December 8, 2022)

LA Times, Ex-warden of California federal women’s prison goes on trial for inmate abuse charges (November 28, 2022)

Four Years After First Step, Earned Time Credits Still Unsettled: The BOP’s recent press release and program statement on First Step Act time credits allowed for a grace period until December 31 for inmates to complete needs assessments, and eliminated the rule that credits earned after an inmate was within 18 months of release could not count for sentence reduction rule.

mumbo161103Writing in Forbes last week, Walter Pavlo noted that “the information provided by the BOP was lacking in specifics as to when this program will be fully implemented. The press release stated that ‘inmates will soon be able to see all potential Federal Time Credits (FTC) they may earn over the course of their sentence.’ The use of the term “soon” is relative and causes undue stress on both inmates and BOP staff.”

In fewer than three weeks, the First Step Act will be four years old. Pavlo rightly complains that setting firm deadlines like “soon” and with “a poor track record thus far… the BOP has no timetable for having this new program statement put into action. In the interim, there are inmates in prison who could, because of this program statement, be released, placed in halfway house, placed on home confinement, or placed on CARES Act home confinement.”

Pavlo argues that while “there is no complexity to many of these calculations… there is no central authority named to conduct these assessments between the program statement announcement and the implementation of an automated calculator.” The BOP has already lived through two FSA credit calculators, the one that was implemented last January when the Dept of Justice forced the BOP to turn 180 degrees on its draconian proposed rules, and the second – touted as “an application to fully automate calculations” due last August but not implemented (with disastrous results) in October.

That October automated calculator now goes back to the drawing board, “making it over a year since the Final Rule that inmates will have clarity on what FSA will mean to them,” Pavlo wrote.

Forbes, First Step Act Delays Continue In The Bureau of Prisons And People Are Locked Up Beyond What The Law States (November 30, 2022)

BOP, P.S. 5410.10, First Step Act of 2018 – Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4) (November 17, 2022)

BOP, First Step Act Time Credits Policy Released (November 18, 2022)

BOP Inmates Out of Private Prisons: The BOP announced last week that consistent with President Biden’s January 2021, Executive Order, the agency has ended all contracts with privately managed prisons. The contract with the last private prison, McRae Correctional Facility in Georgia, ended on November 30, 2022.

The BOP said, “All BOP inmates previously housed in these private prisons have been safely transferred to BOP locations without incident.”

Since the mid-1980s, the BOP maintained contracts for 15 private prisons, housing about 29,000 federal inmates.

An interesting factoid buried in the BOP press release: the agency said it “employs 34,813 staff.” This is a substantial decrease from just a year ago, when the BOP reported 36,739 workers.

BOP, BOP Ends Use of Privately Owned Prisons (December 1, 2022)

‘BOP Lied, Whitey Died,’ DOJ Inspector General Says: In a report which should shock no one familiar with the Bureau of Prisons – except that the Dept of Justice took so long to produce it – the Inspector General has concluded that a chain of bureaucratic errors, incompetence,  health system failures, and deliberate falsification resulted in the bludgeoning death of celebrity crime boss James (Whitey) Bulger within 12 hours of his arrival at USP Hazelton in 2018.

The Inspector General determined that BOP officials at USP Coleman approved downgrading Whiteyr’s medical status from Care Level 3 to 2 solely to get BOP approval to transfer him from Coleman – where he had spent eight months in the Special Housing Unit after allegedly threatening a nurse – to Hazelton (a place known with some justification as “Misery Mountain”). The decrease in Care Level (and omission of any reference in the transfer papers to his life-threatening cardiac condition) came after a prior attempt to transfer Whitey was stopped by BOP Central Office medical staff because of his age and medical condition.

lockinsock181107Despite Whitey being a celebrity prisoner due to his notorious past, Hollywood treatment of his life, and his history of being a federal informant, over 100 people inside the BOP knew of his transfer. At USP Hazelton, even before Whitey’s arrival inmates were taking bets on how long he would survive before being killed.

Nevertheless, the BOP took no extra security precautions. As a result, within 12 hours of his arrival at Hazelton, Whitey was placed in general population and beaten to death with a padlock inside an athletic sock (colloquially known as “a lock in a sock“).

Mr. Bulger’s death was preventable and resulted from “staff and management performance failures; bureaucratic incompetence; and flawed, confusing, and insufficient policies and procedures,” the IG concluded.

A curious observation in the Report noted that BOP staff should have considered that the eight months Whitey spent in the Coleman SHU “in a single cell before his transfer from Coleman caused him to state in a September 2018 Psychology Services Suicide Risk Assessment that ‘he had lost the will to live,’ and may have affected his persistence upon arriving at Hazelton that he wanted to be assigned to general population.”

A weird twist: In 2019, accused sex predator Jeffrey Epstein allegedly killed himself in BOP custody amid rumors that the death was not what it seemed. Those conspiracy theories are largely debunked. But now, perhaps Whitey actually did commit “suicide-by-inmate” in a death that otherwise was clearly a murder.

DOJ, Investigation and Review of the Federal Bureau of Prisons’ Handling of the Transfer of Inmate James “Whitey” Bulger (December 7, 2022)

New York Times, Investigation Finds Errors and ‘Incompetence’ Led to Whitey Bulger’s Death (December 7, 2022)

– Thomas L. Root

Courts Release Prisoners Because of BOP Medical Neglect – Update for December 8, 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.

TWO COMPASSIONATE RELEASE DECISIONS SLAM BOP MEDICAL CARE

Two district courts, separated by some 3,400 miles, granted compassionate release to prisoners in the last two weeks based in substantial part on inadequate Bureau of Prisons medical care.

BOPMedical221208In Greensboro, North Carolina, a federal judge reduced Ronnie Burr’s 240-month drug distribution conspiracy sentence to time served. Ronnie filed for compassionate release in 2020 but was denied on § 3553(a) sentencing factors. When he sought reconsideration, the district court decided he “was not receiving appropriate medical care for all his medical issues, that he lived through “dire conditions… at Fort Dix during the pandemic caused in part by BOP mismanagement, and that these facts constituted extraordinary and compelling reason to warrant a sentence reduction.” Including “the delays in medical treatment, including a recommended endoscopy for his gastritis, and the ‘exceptionally difficult’ conditions of confinement during the pandemic,” the judge cut his sentence by nine months.

In May 2022, Ronnie filed again, complaining that BOP medical treatment had not improved. Ronnie still had not gotten the endoscopy that had been recommended two years before, but the government argued the endoscopy had “not been considered urgent by treating health professionals.” The court rejected that as “conjecture,” relying on Ronnie’s expert’s evidence that a gastric ulcer can be cancerous, an endoscopy is needed to determine if Mr. Burr has a gastric ulcer, Mr. Burr’s healthcare providers have repeatedly ordered an endoscopy, the BOP repeatedly failed to follow through with arranging one, and failure to timely diagnose a cancerous gastric ulcer can be fatal. When the BOP finally scheduled the test, they failed to arrange appropriate staffing to take Mr. Burr off-site for the test, and then did not reschedule the test to occur for two more months. Beyond explaining that “staffing issues” prompted the canceling of the finally-scheduled endoscopy, the government has offered no evidence of why it took them years to schedule the endoscopy or why it did not arrange for adequate staffing once the test was finally scheduled.”

The Court reduced Ronnie’s remaining 8½ years to time served, observing that “[w]hile it is a positive that the procedure is finally scheduled for later this year, that is worth little weight, since the BOP already canceled Mr. Burr’s endoscopy once and may do so again.”

The Court said, “The uncontradicted evidence shows that the BOP has failed to obtain a medically-ordered test for over two years, that the failure could lead to a failure to timely diagnose and treat cancer, and that the failure is not an aberration, given the long delay in scheduling a consultation with a pulmonologist and the failure to schedule a follow-up visit after his surgery… Continued incarceration in the face of ongoing constitutionally deficient medical care is unjust punishment, not just punishment.”

healthbareminimum220603Meanwhile, up north in Alaska, Tom Ranes – serving a 360-month sentence for a drug conspiracy (with 8½ years to go) – also had sought a compassionate release in 2020 that the court had denied for § 3553(a) factors. He filed again last summer.

Tom was a healthy man when he began his sentence, but a fall from an upper bunk injured his tailbone, and everything spiraled downward from there. Now, the Court found, he “has significant digestive tract issues and diseases of the anus and rectum, for which he has received over twenty surgeries during his incarceration. He has had multiple sections of his large intestine removed due to complications from medical treatment he received while in BOP custody, followed by multiple procedures to implant and then repair medical mesh for an incisional hernia. After using a colostomy bag from 2009 through 2011, Mr. Ranes had multiple surgeries to correct subsequent complications. He… has frequent UTIs,~ and endures chronic abdominal pain and abnormalities… In 2019, Mr. Ranes suffered a herniated disc and a detached disc in his spine… Nearly three years later, he has yet to receive the necessary surgery for his injury.”

The Government denied that Tom’s condition presented “extraordinary and compelling circumstances” and argued release was inappropriate under the § 3553(a) sentencing factors. The Probation Office agreed.

The Court did not. It noted that “in the two years since the Court’s previous Order… Mr. Ranes’s health continues to deteriorate, and, troublingly, BOP has yet to provide appropriate medical treatment — even after this Court warned that he has received ‘alarmingly inadequate medical care’ and has ‘yet to receive necessary surgery.’”

prisondoctor221208The Court said that “in isolation, Mr. Ranes’s loss of a vital bodily function and diminished ability to care for himself while at a correctional facility could constitute extraordinary and compelling circumstances. However, it is the confluence of these conditions with the COVID-19 pandemic that undoubtedly warrant release.” Tom’s “medical condition, his inability to receive appropriate medical treatment and supplies while in BOP custody, and his increased risk of complications from COVID-19 infection present extraordinary and compelling circumstances that justify release.”

Tom’s sentence was reduced to time served with expanded supervised release, two years of which will be served on home confinement.

United States v. Burr, Case No 1:15-cr-362, 2022 U.S. Dist. LEXIS 216371 (M.D.N.C., Dec. 1, 2022)

Order Granting Renewed Motion for Compassionate Release, United States v. Ranes, Case No 3:06-cr-00041 (ECF 1165) (D.Alaska, Nov. 22, 2022)

– Thomas L. Root

Hopes for Marijuana Criminal Justice Reform In This Congress May Be Dead – Update for December 6, 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.

“REEFER MADNESS” AS SENATE DEMOCRATS SELL OUT ON POT CRIMINAL JUSTICE REFORM

reefer181210It turns out not to matter that voters want cannabis reform, or that the MORE Act has passed the House and probably could have passed the Senate by a filibuster-proof majority, or even that Senate Majority Leader Charles Schumer said just a few weeks ago that he was pushing for marijuana reform this year.

On Saturday, Axios broke the news that Schumer would bring the Secure and Fair Enforcement Banking Act (H.R. 1996) to a vote, giving up on comprehensive reform that included expungement of federal marijuana trafficking convictions. The compromise legislation does not legalize marijuana on a federal level, leaving pot as a Schedule I drug, like heroin and LSD.

The MORE Act (H.R. 3617) is dead. The replacement Cannabis Administration and Opportunity Act (S. 4591) – which also included retroactive expungement of federal marijuana convictions – also appears to be dead. The only measure that could include any criminal justice reform is the National Defense Authorization Act (H.R. 8900), which the House may use as a vehicle for drug criminal justice reform.

Instead, Democrats in the Senate will push to liberalize banking access to the cannabis industry. The SAFE Banking Act would provide a “safe harbor” for regulated banks to work with cannabis firms in states where cannabis is legal.

Schumer says he will “more than likely” attach the legislation to a must-pass year-end bill like the NDAA, which gets a vote annually. The House of Representatives attached the EQUAL Act (H.R. 1693) to the NDAA last July 19 with bipartisan support, but no one is talking about the Senate doing the same.

ironyalert220523Ironically, the Schumer package also reportedly includes the Harnessing Opportunities by Pursuing Expungement Act of 2021 (H.R. 6129), known as the HOPE Act. According to a bill summary, the measure “authorizes the DOJ to make grants to states and local governments to reduce the financial and administrative burden of expunging convictions for state cannabis offenses.” In other words, Congress will authorize money to help states expunge marijuana convictions, but it won’t lift a finger to expunge federal convictions.

Yesterday, House lawmakers delayed committee consideration of the NDAA amid disagreements over key issues. Democratic leaders had hoped to see the NDAA advance with marijuana reform provisions attached.

The House Rules Committee was expected to take up the NDAA on Monday, but Chairman Jim McGovern (D-MA) deferred consideration, saying the “package is not ready yet.”

Abandonment of cannabis criminal justice reform by the Senate Democrats – who torpedoed the MORE Act to begin when Sen Cory Booker (D-NJ), Sen Ron Wyden (D-OR) and Schumer introduced the alternative CAOA – came at the end of a week in which the New York Times criticized last month’s Biden mass pardon of people with marijuana simple possession convictions. The Times reported, “And while many advocates welcomed the presidential act of forgiveness, they say far too many people — many of them Black and Latino — are not eligible for the pardons, leaving them with minor marijuana convictions that will continue to get in the way of job prospects, educational opportunities and financing for homes.”

warondrugs211028The Times observed that Biden was a “champion of aggressive drug laws earlier in his career, including the 1994 crime bill that led to mass incarceration,” although “he has more recently embraced leniency for those convicted of minor drug offenses.” Biden has said he does not support legalizing marijuana, “putting him at odds with 80% of self-described Democrats and 68% of Americans, according to a Gallup poll released this month,” The Times said.

The SAFE Banking Act is an incremental change in cannabis laws, being rolled out just as Marijuana Moment editorialized for taking such an approach. “It’s time to acknowledge that incrementalism is not selling out, it is not crumbs, and it is not failure,” the website said last week. “Failure is continuing to lock up our citizens while we quibble over who gets the spoils of a post-prohibition world.”

This leaves the Dept of Health and Human Services study rescheduling marijuana as the best hope for any change leading to sentencing reform. Last month, the National Law Journal reported that a panel of consulted legal experts estimated that marijuana will be rescheduled as a Schedule II or III drug by January 20, 2025.

Axios, Scoop: Senate plots pro-pot move for lame-duck (December 3, 2022)

Guardian, Senate Democrats to reportedly push banking reforms for cannabis industry (December 3, 2022)

Fox Business News, Senate aims to attach major marijuana legislation to end-of-year ‘must-pass’ bills: report (December 3, 2022)

Catholic News Agency, Bishops urge passage of bill that would give same sentences to crack and powder cocaine offenders (August 11, 2022)

Marijuana Moment, Democrats’ Focus On Social Justice Marijuana Bills Has Blocked Achievable Progress On Reform (December 2, 2022)

National Law Journal, Editor’s Roundtable: A New Biden Doctrine? (October 31, 2022)

Marijuana Moment, Fate Of Marijuana Banking Reform Uncertain As Lawmakers Delay Defense Bill Consideration Amid Disagreements (December 5, 2022)

– Thomas L. Root

Benefit of the Dout – Update for December 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.

6TH CIRCUIT CUTS INMATE FILER A BREAK ON CONFUSING PLEADING

cutbreak221201Eighty-three days after his judge denied his 28 U.S.C. § 2255 motion, Joe Reho filed something with the district court. It may have been a motion for an extension of time to apply for a certificate of appealability. It may have been a notice of appeal. No one was quite sure what it was, but everyone was quite sure it was written without the benefit of a dictionary nearby.

The district court decided it must be a notice of appeal and dismissed it as being 23 days late.

Last week, the 6th Circuit remanded the case, concluding that Joe’s motion, which repeatedly asked for an extension of time, “is better construed as a motion for extension of time to file a notice of appeal.”

grammar221201Under Rule 4(b)(4) of the Federal Rules of Appellate Procedure, district court may extend the time to file a notice of appeal based on “excusable neglect or good cause” if an extension is filed within 30 days after the notice of appeal due date. Here, Circuit said, construing Joe’s “filing liberally, we conclude that he moved for an extension of time to file a notice of appeal. While the district court docketed the document as a notice of appeal, Joe’s motion requested, in the opening paragraph, ‘a extention of time to filed a certificate of Appealability… and to proceed inform a peuperis on appeal.”

CantSpell221201“This court construes pro se habeas petitions liberally,” the 6th held, apparently even where spelling and grammar are butchered. “For instance, we regularly construe notices of appeal as applications for a certificate of appealability… We have also construed motions for extension of time as notices of appeal… Repo’s motion appears to ask for an extension to apply for a certificate of appealability rather than for an extension to file a notice of appeal. But his motion is a far cry from the simple notices of appeal that we have refused to construe as motions for extension… Repo’s motion reads as a motion for extension of time to file a notice of appeal and will be treated as such.”

Reho v. United States, Case No 22-3784, 2022 U.S.App. LEXIS 31392 (6th Cir., Nov. 14, 2022)

– Thomas L. Root

Pardoning Turkeys, Not People – Update for December 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 TURKEY PARDONS DRAW CRITICISM

President Joe Biden continued a 75-year tradition last week, pardoning a pair of North Carolina turkeys named Chocolate and Chip after his favorite flavor of ice cream.

turkeypardon221201“The votes are in, they’ve been counted and verified,” Biden said, granting the pardons. “There’s no ballot stuffing. There’s no fowl play.”

Vote counting apparently did not include the over 18,000 people whose applications for pardons or commutations are piled up at the Dept. of Justice Pardon Attorney’s office.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, referred to the ceremony as “the annual turkey pardon silliness at the White House.”

clemencybacklog190904Reason magazine was not much kinder to Biden’s clemency for those convicted of simple marijuana possession announced in October. The mass pardon was “an example of all hat and no cattle,” Reason said. “‘I’m keeping my promise that no one should be in jail for merely using or possessing marijuana,’ [Biden] said in October. ‘None…’ But not a single person was released from custody by the Bureau of Prisons due to Biden’s proclamation… The presidential pardon power can and should be used more often. Not just for turkeys, but for the thousands of people serving decades due to draconian drug laws that Biden supported for most of his political career.”

Associated Press, Biden opens holidays, pardons turkeys Chocolate and Chip (November 21, 2022)

Sentencing Law and Policy, Does Prez Biden’s clemency record in 2022 deserve some praise on the day of turkey pardons? (November 21, 2022)

Reason, Pardon People, Not Turkeys (November 23, 2022)

– Thomas L. Root

Congressional Cannabis Reform Predicted for December – Update for November 29, 2022

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

INTEREST INCREASES IN PASSING MARIJUANA REFORM

marijuana221111While no one is talking about pushing the EQUAL Act (S.79) over the finish line before the current Congress expires on January 2nd, the last two weeks have seen a flurry of activity in marijuana reform raising hopes that legislation that includes relief for people serving pot-related sentences may yet pass the Senate next month.

On November 16, the Senate passed H.R. 8454, the Medical Marijuana and Cannabidiol Research Expansion Act, and sent the bill to President Joe Biden. The bill removes barriers making it difficult for researchers to study the effectiveness and safety of marijuana-derived medicines. When it passed, Senate Majority Leader Charles Schumer (D-NY) – who controls what bills come up for a full Senate vote – said, “I hope after passing this bill the Senate can make progress on other cannabis legislation, too. I’m still holding productive talks with Democratic and Republican colleagues in the House and the Senate on moving additional bipartisan cannabis legislation in the lame duck.”

Marijuana Moment reported last week that “talks are intensifying over a marijuana banking and expungements bill that Senate leadership is working to finalize, with advocates feeling increasingly optimistic about seeing action” during the final weeks of this Congress.

On January 2, 2023, the 117th Congress comes to an end. Any pending bills that have not been passed will be discarded. A new Congress, the 118th, begins the next day. This means the EQUAL Act, the MORE Act, the First Step Implementation Act, and everything else in the legislative hopper will disappear.

lameduck221201The MORE Act (H.R. 3617) (which has twice passed the House), has been stalled because of the Cannabis Administration and Opportunity Act (CAOA), S.4591, a competing bill introduced by Senators Schumer, Ron Wyden (D-OR) and Cory Booker (D-NJ) last summer. A compromise pot bill was blocked from receiving a unanimous consent Senate vote in September.

While the latest signals indicate that compromise legislation will be less wide-ranging than some initially expected, banking and criminal justice reform appear to remain at the center of the talks. The text of any compromise has yet to be released so it remains unclear what will make it into the final bill.

The negotiations in their current form are leading to “unprecedented levels of optimism” about passing a cannabis reform package by the end of the current Congress, one advocate familiar with the status of negotiations told Marijuana Moment.

Colorado Springs Indy, Landmark bill reaches  president’s desk (November 23, 2022)

Marijuana Moment, Congressional Talks On Marijuana Banking And Expungements Bill Intensify As Advocates Push For Equity Amendments (November 23, 2022)

NORML, NORML Deputy Director Testifies on Marijuana Legalization Before House Subcommittee (November 15, 2022)

– Thomas L. Root

Fraud Takes the Stage at Supreme Court – Update for November 28, 2022

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

SCOTUS TO HEAR TWO CRIMINAL FRAUD ARGUMENTS TODAY

Fraud170406The Supreme Court will hear arguments today on two criminal fraud cases that explore whether people who work privately for government officials owe a duty of honest services to the public under what the Wall Street Journal calls “the ill-defined honest-services fraud statute.”

In the first case, former state official Joseph Percoco was serving as campaign manager for former New York Gov. Andrew Cuomo at the time he accepted a $35,000 payment from a real-estate developer to help obtain government approval for a project. The government declared him to be “functionally a public official” because he had clout with state agencies. Thus, the US Attorney said, Joe committed honest-services fraud.

Joe complained in his Supreme Court brief that the 2nd Circuit’s“functionally a public official” rule could have “sweeping implications not only for lobbyists and donors but also for the family members of public officials, who ‘hold unparalleled access and influence’ and whose ‘independent business interests may be in a position to benefit from state action,'” according to SCOTUSBlog.

ambiguity221128The federal prosecutorial approach to fraud has created confusion in lower courts for years. In the last decade, the “right of honest services” has been especially pernicious: nowhere in the statute or a definitive Supreme Court ruling is the “right of honest services” defined.  In fact (as Joe has argued), the Supreme Court’s 2010 Skilling v. United States decision and 2016 McDonnell v. United States have pretty much established that bribery laws are “concerned not with influence in the abstract, but rather with the sale of one’s official position.” Private citizens cannot take official action or use their positions to bring about government action, Joe contends, because they have no such positions. Thus, they cannot violate federal fraud laws.

In Skilling v. United States, the Supreme Court limited criminal liability for fraud to kickback and bribery schemes, but at the time three Justices – Scalia, Thomas and Kennedy – believed the law’s vagueness made it unconstitutional. Lower courts have held that public officials owe a “right of honest services” to their constituents, but the Supreme Court has never ruled that private individuals owe a fiduciary duty to the public.

Last week, the Wall Street Journal complained,

Was Mr. Percoco paid to leverage his political clout? Of course. His simultaneous employment as Cuomo’s campaign manager and a business consultant is certainly sketchy. But the government’s theory… could be used to prosecute any powerful lobbyist, including former lawmakers who don’t act in the putative public interest…This would present First Amendment concerns since citizens have the right to petition their government. It would also impair due process for private citizens who have no way of knowing if they are covered by the honest-services law.

In the second case, the government charged contractor Louis Ciminelli, a Cuomo campaign contributor, with conspiracy to commit fraud by rigging a construction contract for a state-subsidized solar panel plant. A member of a nonprofit overseeing the project drafted the proposal to favor Lou’s construction firm. There was no evidence Lou directed the proposal’s terms, nor that either the state or nonprofit suffered any loss of property as a result of Lou’s firm being chosen.

moneyhum170419But the government claimed Lou defrauded the nonprofit of its “right to control its assets” by “exposing it to the risk of economic harm through false representations about the fairness and competitiveness of the bidding process.” Prosecutors did not produce evidence linking Lou to any bribes or kickbacks. Instead, the prosecutors discussed deprivation of a “right to control”: Lou’s deception deprived the nonprofit board of its right to control the funds and the allocation process.”

As the Wall Street Journal put it, “If you’re struggling to understand the government’s convoluted theory, you’re not alone.”

SCOTUSBlog said Lou’s “main wrongdoing appears to be his ‘sneaking to the front of the line’ in the negotiation process. If the Supreme Court continues its trend of narrowing the scope of federal fraud criminalization, it can do so by eliminating the ‘right to control’ theory of fraud.”

Lou has completed his sentence, while Joe is on home confinement. A Supreme Court win won’t give them back the time they served, but their names could be cleared.

Wall Street Journal, The Supreme Court gets a Fraud Test (November 25, 2022)

SCOTUSBlog, A sharp business deal or a federal crime? Justices will review what counts as fraud in government contracting (November 25, 2022)

SCOTUSBlog, Former aide to Andrew Cuomo wants court to narrow scope of federal bribery law (November 27, 2022)

– Thomas L. Root