Back to School – Update for September 1, 2022

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

A LEGISLATIVE PRIMER

hateschool220902For those of you who sat in the back row in high school government class throwing spitballs, here’s what you missed about how our laws are made.  Every year or so, I find it necessary to cover the Congressional essentials. Now, with the Senate and House about to  return from their August vacations in another week or so, here are a few things to remember about the Congressional legislative process.

First, a “Congress” is a limited-time deal, a two-year conclave of lawmakers. The current Congress, called the “117th Congress,” will end on January 2, 2023. A new one, the 118th Congress will begin its two-year run begin the next day.

During the two-year Congress, thousands of bills and resolutions will be proposed. Few will get passed. The ones that don’t make it through the House and Senate and to the president’s desk for signing die when the 117th Congress ends.

Of the many criminal justice bills that have been introduced since January 2, 2022, only two have any real chance of passage. The EQUAL Act (S.79) – which reduces crack penalties to match cocaine powder penalties – has passed the House but awaits a Senate vote. The MORE Act (HR 3617) – which would decriminalize marijuana – has passed the House twice but is awaiting Senate action.

The mid-term election comes the first week of November. Every member of the House is up for re-election, as are one-third of the senators. And that’s a problem. A 2/3 majority the Senate supports crack cocaine reform, and an even greater majority supports decriminalization of marijuana. So passage ought to be easy, right?

demagogue220902The biggest obstacle to passing either of these bills right now is the upcoming election. A strong anti-crime sentiment has taken root in the country, and to avoid getting swept up in an anti-crime tide, the Wall Street Journal said last week, “Democrats will have to show they’re serious about the issue.” hardly anything about crack cocaine punishment and marijuana decriminalization have anything to do with the kinds of local violent crime they concern the public. Nevertheless, you can be sure that the Senate Majority Leader – who controls the agenda – will not force senators to take a stand on the bills prior to the midterm election. No legislator wants to do the right thing on the EQUAL Act, for example, only to have an opponent at home claim that the senator voted to let drug dealers out of prison early.

The problem with cannabis reform is different. While virtually no one objects to decriminalization, the real battle over marijuana relates to banking regulation and taxation. A group of senators led by Richard Durbin (D-IL) has proposed their own alternative bill, And that has taken the wind out of the sails for the MORE Act.

The bottom line is this: The financial stakes in decriminalizing and regulating marijuana across the nation are huge. Concerns about adjusting federal sentences for what is likely not to be more than 20,000 prisoners (less than .01% of the population) is not important enough to control the debate.

time161229There aren’t many legislation days left for the 117th Congress. While it is not clear that EQUAL or MORE will make it through the Senate, it is safe to predict that no other criminal justice legislation – such as First Step retroactivity, prohibiting punishment for acquitted conduct, or adjustments to the elderly home detention pilot program – will become law in this Congress. The prospect is that come January, we’ll be starting over.

Wall Street Journal, Don’t Count Out Crime as a 2022 Midterm Issue (August 18, 2022)

The American Prospect, Democrats in Danger of Missing the Marijuana Moment (August 25, 2022)

JDSupra, Cannabis and Social Justice Reform: Are We Doing Enough? (August 25, 2022)

– Thomas L. Root

No Place Like Home – Update for August 31, 2022

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

CONNECTICUT DISTRICT COURT FINDS HOME CONFINEMENT IS A PROTECTED LIBERTY INTEREST

I reported May 9 on a habeas corpus action in Connecticut U.S. District Court that claimed that the petitioners had had their CARES Act home confinement revoked without due process. A few weeks ago (while I was out, but I don’t apologize for a vacation in August), the Court decided that the petitioner had a liberty interest in her home confinement and that her revocation had violated her due process rights.

home190109The Court ruled that before home confinement is revoked, a prisoner is entitled to the two-step process described by the Supreme Court in Morrissey v, Brewer, 408 US 471. That 1972 decision required a preliminary hearing to determine whether there is probable cause to justify the inmate’s detention before hearing made by a factfinder uninvolved in starting the revocation process. The inmate must be given notice of the hearing and the violation that is being alleged, and he or she should have the chance to cross-examine adverse witnesses and present evidence. Any adverse decision should explain the reasons for the revocation.

If probable cause is found for detention, the Court said, a full revocation hearing must still be conducted before the inmate’s home confinement is revoked. That hearing requires written notice of the violations, disclosure of evidence, a chance for the accused to be heard in person and to present witnesses and evidence, the right to cross-examine adverse witnesses, and a written opinion issued by a “neutral and detached” hearing body. The burden of proof by a preponderance lies with the government.

Coincidentally, Davina Chen, National Sentencing Resource Counsel for the Federal Public Defenders, sent a memo just a few days before the Tompkins decision, noting a July 22 USA Today article on CARES Act revocations. She warned:

I am beginning to hear an uptick of reports of people being remanded for suspect reasons or no reason at all… What we have experienced so far is that early attorney involvement is crucial and can, in some cases, prevent clients from being returned to prison – some of them for decades… [W]e believe that our clients have a Fifth Amendment right to a hearing before a neutral and detached decisionmaker, an opportunity to be heard both on whether they have violated the conditions of their home confinement and why return to prison is not warranted, and in some instances counsel. Maybe you won’t get that ¬– but maybe you can also convince BOP not to tear your client away from the community!

Tompkins v. Pullen, Case No 3:22-CV-00339, 2022 US Dist LEXIS 141271 (D.Conn, August 9, 2022)

USA Today, They were released from prison because of COVID-19. Their freedom didn’t last long. (July 22, 2022)

Federal Defenders Organization memorandum, CARES Act Home Confinement Revocations (August 3, 2022)

– Thomas L. Root

Scrutiny is ‘Difficult’… But Aplenty – Update for August 30, 2022

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

BOP DIRECTOR DOESN’T LACK FOR MATERIAL

criticize220830In her first video message to Bureau of Prisons staff, reported on last week in Government Executive, new Bureau of Prisons Director Colette Peters acknowledged the bumpy ride the BOP has experienced over the past few years: “We have had a great deal of scrutiny from auditing and oversight entities both internal to and external of our agency. While these findings are difficult to hear, we must work diligently to address these deficiencies in order to improve our environment for everyone who works and lives at the bureau.”

Last week suggests that Peters has no shortage of current ‘scrutiny’ to work with.

CARES Act Management: On Monday, NPR reported that only 17 of the 442 inmates returned to prison from CARES Act home confinement had committed new crimes. The number of new offenders represented less than two-tenths of a percent of the 11,000 sent home. Most of the 17 offenses were drug-related.

NPR criticized the BOP for a lack of due process and being too quick to revoke CARES Act status for insignificant infractions. With suits against the BOP over CARES Act revocation proliferating, NPR said, the agency is “considering a new federal rule to make the process more clear.”

The Hot Mess at Carswell: On Friday, the Ft. Worth Star-Telegram dropped another ticking bomb on the Director’s desk. The paper’s investigation found that FMC Carswell – the only federal medical facility for women inmates in the country – “has been plagued with systemic sexual abuse for years. The Star-Telegram spoke to 12 former and current inmates at the facility, as well as prison staff and experts familiar with the investigative process at the Bureau of Prisons, which has oversight of federal prisons. Hundreds of pages of incident reports, federal records and court documents reveal a pattern of sexual misconduct and cover-ups.”

sexualassault211014What’s more, the paper reported, Carswell inmates “say they are not always able to report sexual assaults due to fear of retaliation. Even when staff members report sexual assaults, Carswell upper management has at times failed to investigate misconduct, the union president at the prison said.” One Carswell staff member described the facility as “the perfect place for sexual misconduct.”

Finally, the newspaper reported, the BOP failed to provide victims with any mental health care to deal with trauma from the assaults. The BOP denied the claims, asserting that “every inmate and pretrial detainee in a BOP facility has daily and regular access to Health Services and Psychology Services staff.”

Lying Warden, Freezing Inmates: Meanwhile, the New York Post reported a week ago that the warden of a federal prison in California – identified by the paper as FCI Terminal Island – failed to fix a broken camera system in the lockup and kept prisoners in the cold after a heating malfunction during an unusually cold winter.”

The unidentified warden “risked the safety and security of inmates and staff” with the 2019 heating and surveillance failures at the prison near Los Angeles, according to a heavily redacted Dept of Justice Inspector General report of the probe obtained by the paper through a Freedom of Information Act request.

liar151213Investigators also found that the warden “lacked candor” in sworn interviews with agents. The DOJ’s Public Integrity Section declined to prosecute after the investigation, according to the documents.

Making Fun of Women and Blacks: A California TV station reported last week that a BOP whistleblower told the BOP Internal Affairs division earlier this month that the author of a “racist and misogynistic Instagram page” entitled “Good Verbal,” works at FCC Victorville, based on the private jokes and inside knowledge of the posts.

The page, that mocks women prisoners getting sexually assaulted at FCI Dublin, female officers sleeping their way to the top and black prisoners getting thrown into the SHU, among other posts,” included details suggesting the author was assigned to work at Victorville.

The whigoodverbal220830stleblower asked that IA investigators identify the author, discipline that person, and shut down the page. “I refuse to work in a dangerous environment and be subjected to this type of treatment by alleged fellow staff members,” the letter to Internal Affairs read. “I am one of many people that are the targets of these nasty and highly offensive posts. It should also be noted that other institutions in various regions across the county are affected by this disgusting page. This page has the potential to turn into a national law enforcement issue.”

As of August 30, “Good Verbal” remained posted on Instagram and appeared to be unrepentant, saying: “Our humor is not for everyone. This is how we deal with the horrible things we must see to earn money. We are the modern day sin eaters. We try to manage those that are unfit for society.”

Who’s the Rat?  Finally, at a detention hearing last week for one of the three defendants charged with the murder four years ago of James “Whitey” Bulger, the government revealed that inmates at USP Hazelton knew in advance that Bulger was arriving on October 29, 2018. He died 12 hours later.

snitch160802NBC News called Bulger’s death “a stunning security failure for the federal prison system. The previously undisclosed revelation that USP Hazelton inmates were tipped off to Bulger’s arrival raises additional questions about the federal Bureau of Prisons’ handling of his transfer to one of the country’s most violent prisons.”

“It’s just absurd that this happened,” a former BOP gang investigator told NBC.

A Bit of Support from a Critic: One piece of criticism the new Director received within about a day of her swearing-in four weeks ago was her decision to keep outgoing BOP Director Michael Carvajal on for a month as an advisor.  Last week, Shane Fausey – national president of the National Council of Prison Locals union and a strident critic of BOP management – defended keeping Carvajal on. With an agency the size of the BOP, “you don’t just turn off the lights and say have a nice day. It requires a transitional period to understand, and I hate to use the word, ‘bureaucracy’ of the federal government,” Fausey said.  “Whatever your personal feelings are with Director Carvajal, I think it’s essential for the success of Director Peters that he stay on board to kind of guide her at the beginning of her tenure.”

Government Executive, A New Director Is Bringing Hope to the Federal Prisons Agency (August 22, 2022)

NPR, Released during COVID, some people are sent back to prison with little or no warning (August 22, 2022)

Ft Worth Star-Telegram, They were sexually assaulted in prison. An overwhelmed mental health system failed to help (August 26, 2022)

Ft. Worth Star-Telegram, ‘I’m nobody to them.’ Survivors report sexual abuse by staff at Fort Worth Carswell prison (August 26, 2022)

New York Post, Warden failed to fix camera system, heat at California federal lockup: watchdog (August 22, 2022)

KTVU-TV, Whistleblower outs racist, misogynistic Instagram page at California federal prison (August 24, 2022)

NBC, Twist in Whitey Bulger murder case: Inmates at West Virginia prison knew in advance he was coming (August 23, 2022)

– Thomas L. Root

Money for Nuthin’ – Update for August 29, 2022

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

YO MOMMA

Ruel Hamilton, a Dallas real estate developer, liked politicians. He liked them so much that he gave money to members of the Dallas City Council just because he could.

money160118In 2017, Ruel wanted to get a paid-sick-leave ordinance on the ballot in the upcoming election. He thought the policy made good sense: in fact, he already had a more generous policy in place for his own employees. Plus, he thought having the ordinance on the ballot would increase voter turnout, another good thing (and one which would help secure the reelection of City Council members Ruel liked).

Ruel called City Councilman Dwaine Caraway to discuss getting the measure on the ballot. His call came at a bad time: Dwaine was in the middle of negotiating a plea deal with the US Attorney over some other bribery allegations when the call came in. The government – always happy to ensnare another defendant when possible – encouraged Dwaine to meet with Ruel (and to let the FBI secretly record the confab).

At the meeting, Dwaine and Ruel talked about how Dwaine’s mother needed a $6,200 healthcare bill paid that very day and how busy, tired and broke Dwaine was. They then discussed the paid-sick-leave initiative, how that vote might come out if it was put on the agenda by the Mayor, and how Ruel hoped Dwaine would run for reelection.

money170419Ruel kept reminding Dwaine that he was there to help in any way he could. Dwaine finally said, “You can answer that bill that I just threw out there… for about [$6,200] today and that will help me… do what I need to do.” Ruel happily obliged: “Can I just write a check to Dwaine Caraway?” he asked. Dwaine clarified that the money was not a loan and was not related to his campaign. He said he had to “go pay for my mama.”

Ruel gave him a check for $7,000 but neither asked for nor was promised that Dwaine would do anything in return. It was indeed “money for nuthin’.” Nevertheless, Ruel soon found himself on the wrong end of an indictment for bribery in violation of 18 USC § 666.

In giving the jury instructions for the federal-programs-bribery counts, the district court told the jury that neither a quid-pro-quo exchange nor any “official act” by the council members was required to convict Ruel for bribery. Essentially, the district court said, whether Ruel bribed Dwaine or just paid an illegal gratuity to him didn’t matter.  Both violated 18 USC § 666, the district judge said.

piublicdefender220829But Ruel wasn’t just some down-on-his-luck dopehead represented by an underpaid court-appointed attorney. Rather, he hired Paul Clement (a former US Solicitor General), high-powered defense attorney Abbe David Lowell, and the combined power of three top-tier Washington law firms. Not only was Ruel’s legal team successful in keeping him out of prison pending appeal (no mean feat), but it buried the US Attorney in an avalanche of appellate issues.

Ruel’s legal fees probably would have choked a horse, but like my dad always said, ‘no one ever regrets buying the best there is.’ Ruel’s  team clobbered the two AUSAs prosecuting the case.
quid220829Last week, the 5th Circuit vacated Ruel’s conviction. Holding that “bribery requires a quid pro quo – a specific intent to give or receive something of value in exchange for an official act – [while an] illegal gratuity does not,” the 5th rejected precedent from five other circuits, ruling that 18 USC § 666 does not cover illegal gratuities, only bribery. Because of this, the government must show that the defendant had a specific intent to give something of value in exchange for an official act. The jury was never instructed that a quid pro quo was an essential element of the offense, making Ruel’s conviction defective.

Section 666 criminalizes only a quid pro quo, not mere gratuities,” the Circuit held. “The district court’s instruction allowed the jury to convict based on mere gratuities. For these reasons, we vacate Hamilton’s convictions….’

United States v. Hamilton, Case No 21-11157, 2022 US App. LEXIS 23648 (5th Cir. Aug 23, 2022)

– Thomas L. Root

Transgender Rights Come to Prison – Update for August 25, 2022

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

We have been out for the past 10 days for some needed medical work.  Glad to be back.

TRANSGENDER INMATES PROTECTED BY ADA, 4TH RULES

In a case with significant implications for the Bureau of Prisons, the 4th Circuit last week held that gender dysphoria is covered by the Americans With Disabilities Act.

trans220106Kesha Williams, a man who identifies as a woman, sued the Fairfax County, Virginia, sheriff for being housed with men during a 6-month jail sentence. The sheriff argued that the ADA – which excludes “gender identity disorders” from conditions covered by the Act – does not extend to gender dysphoria (a condition that had not been identified when the Act was passed in 1990).

The Circuit disagreed. Relying on the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (DSM-5), the 4th said that

the definition of gender dysphoria differs dramatically from that of the now-rejected diagnosis of “gender identity disorder.” Rather than focusing exclusively on a person’s gender identity, the DSM-5 defines “gender dysphoria” as the “clinically significant distress” felt by some of those who experience “an incongruence between their gender identity and their assigned sex.” And the DSM-5 explains that the discomfort or distress caused by gender dysphoria may result in intense anxiety, depression, suicidal ideation, and even suicide. In short, “being trans alone cannot sustain a diagnosis of gender dysphoria under the DSM-5 as it could for a diagnosis of gender identity disorder under earlier versions of the DSM.” For if a transgender person does not experience “clinically significant distress,” she could not be diagnosed as having gender dysphoria under the DSM-5.

A 2013 update of the DSM that became the 5th edition removed the diagnosis of gender identity disorder, replacing it with gender dysphoria. “Reflecting this shift in medical understanding, we and other courts have thus explained that a diagnosis of gender dysphoria, unlike that of ‘gender identity disorder,’ concerns itself primarily with distress and other disabling symptoms, rather than simply being transgender,” the 4th said.

The Circuit ruled that even if gender dysphoria and gender identity were not categorically distinct, the prisoner would still be protected under the ADA because her gender dysphoria has a “known physical basis.” When prison officials failed to provide hormone therapy to the prisoner, she experienced emotional, psychological, and physical distress. “Williams does not merely allege that gender dysphoria may require physical treatment such as hormone therapy,” the 4th wrote. “She maintains that her gender dysphoria requires it.”

The Circuit said that excluding gender dysphoria from the ADA “would discriminate against transgender people as a class, implicating the Equal Protection Clause of the 14th Amendment.”

The 4th further noted that in 2008, Congress’s amendment to the ADA instructed courts to apply the statute broadly, intending to make it easier for people with disabilities to access protection under the ADA and stating that the definition of disability should be construed in favor of people calling for coverage “to the maximum extent permitted by the ADA’s terms.

The sheriff’s policy classified prisoners’ gender according to their genitalia. That policy, the Court found, violated the Prison Rape Elimination Act (PREA). “A policy that houses transgender inmates based solely on their genitalia puts transgender inmates at further risk of harm,” the 4th ruled.

The BOP estimates that about 1,200 inmates identify as transgender.

Even before this decision, some of the BOP’s 10,800 female inmates have been vociferous in their opposition to having transgender females – most of whom retain male genitalia – from being housed with them. The news last month that a transgender woman inmate housed by New Jersey in a female prison had impregnated two female inmates has raised concerns about transgender inmate housing. None of those concerns will be allayed by the 4th Circuit’s holding.

Williams v. Kincaid, Case No 21-2030, 2022 US App LEXIS 22728 (4th Cir, Aug 16, 2022)

Washington Post, 4th Circuit first to rule gender dysphoria a protected disability (August 17, 2022)

Tucson Sentinel, Appeals Court Ruling on Transgender Rights: What It Means (August 22, 2022)

NBC News, N.J. trans prisoner who impregnated 2 inmates transferred to men’s facility (July 19, 2022)
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– Thomas L. Root

Biden’s “Safer America Plan” Backs EQUAL Act – Update for August 12, 2022

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

SAFER AMERICA PLAN  BACKS EQUAL ACT, BUT IS IT ENOUGH?

President Biden rolled out a “Safer America Plan” last week, a proposal to address public concern about crime rates that is probably intended to blunt the issue before November’s midterm elections.

The Plan represents the President’s hopes and not a firm legislative proposal. But amid the $35 billion proposal to support law enforcement, gun control, and crime prevention, the Plan “calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive.”

This, of course, is the EQUAL Act (S.79).

EQUAL would provide immediate sentencing relief to an estimated 10,000 inmates – more than 90% of whom are black – currently serving time in federal prison pursuant to the crack/powder disparity, according to the White House.

President Biden’s backing of the EQUAL Act is not surprising, but in the wake of a big Democrat win in Congress last week on the Inflation Reduction Act, the Senate may have the energy to tackle EQUAL. It will have to be after the August recess, and that brings it within 60 days of the November election. It still looks likely nothing will happen on EQUAL until after the November 8th midterm election.

In an August 1st letter to Congress, the United States Conference of Catholic Bishops pressed for passage of EQUAL. “We cannot ignore the racial impact of current federal cocaine sentences when Blacks are more than three times as likely to be convicted for crack cocaine trafficking as for powder cocaine trafficking,”  Bishops Paul S. Coakley and Shelton J. Fabre wrote.

equal220812

An amendment to add the EQUAL Act to the National Defense Authorization Act (H.R. 4350) passed the House of Representatives on July 19 with bipartisan support.  But the likelihood that the provision will survive Senate passage of the NDAA is low:  Unrelated amendments are routinely attached to NDAAs but are often negotiated out in the process of reconciling House and Senate versions of the bill.

The Catholic News Agency report on the bishops’ letter suggests that despite broad support, EQUAL’s future may be bleak:

The EQUAL Act has an uncertain future in the Senate. Since it has 11 Republican co-sponsors, it could pass as a stand-alone bill. However, the ranking Republican member of the Judiciary Committee, Sen. Charles Grassley, has his own bill to address disparities in drug sentencing. His legislation would reduce but not eliminate the disparity. 

White House, Safer America Plan (August 1, 2022)

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

– Thomas L. Root

Peters Off to a Rocky Start at BOP – Update for August 11, 2022

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

IT ONLY TOOK TWO DAYS FOR THE NEW DIRECTOR TO STEP IN IT…

stepinit220811Reason reported last week, “We last saw outgoing BOP Director Michael Carvajal running down a stairwell on July 26. He was trying to get away from some Associated Press reporters who revealed systemic dysfunction and corruption within the federal prison system—an apt ending for his tenure.”

But it seems that rather than being gone but not forgotten, Mr. Carvajal may be forgotten but not gone.

The AP reported last week that the BOP “is keeping its former director on the payroll as an adviser to his successor, rewarding him with an influential new role after concerns about his leadership — including from staff, inmates, Congress and the Biden administration — hastened his exit from the top job.”

Carvajal will stay on through the end of the month as a senior adviser to new director Peters, BOP spokeswoman Kristie Breshears told AP. “Critics say that retaining Carvajal, even for a few weeks, could slow that progress,” Corrections1 said. “Some people involved in the federal prison system say Carvajal lacks credibility and that the decision to let him stay on sends mixed signals about the direction of the agency at a pivotal time.”

Unbelievable220811“That is unbelievable. Why would we keep an individual that has left this agency in ruins, and who refuses to take ownership of failures of his administration, from staffing to COVID?” said Jose Rojas, a leader in the federal correctional officers’ union. “What a sad state of affairs.”

The announcement did not please Sen. Richard Durbin (D-IL). The chairman of the Senate Judiciary Committee said last Friday he plans to hold yet another oversight hearing on the BOP after The Associated Press reported that the agency is keeping Carvajal on the payroll as an adviser to Peters.

Durbin, who demanded Carvajal be fired last November amid myriad failings, told the AP in a statement he was dismayed by continuing misconduct within the agency and by its unwillingness to completely cut ties with the former director.

Reason, Biden’s New Bureau of Prisons Director Won’t be Able To Run Away From the Agency’s Corruption (August 1, 2022)

Corrections1, US keeping ex-prison chief as top adviser after rocky tenure (August 5, 2022)

Associated Press, Senate to hold hearing on crisis-plagued federal prisons (August 5, 2022)

– Thomas L. Root

It’s (Not) A Fact! – Update for August 10, 2022

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

JUST THE FACTS

justthefacts220810In 2017, Clifton Odie pled guilty to a drug conspiracy. In the plea agreement, Cliff acknowledged that the government would file a 21 U.S.C. § 851 enhancement (which increases the statutory minimum sentence) based on Cliff’s 2000 Illinois state conviction for possession of a controlled substance in violation of 720 Ill. Comp. Stat. 570/402(c). The § 851 notice increased Cliff’s mandatory minimum term of imprisonment from 5 to 10 years. Cliff agreed in the plea agreement not to challenge the enhanced sentence.

But later that year, the 7th Circuit ruled in United States v. De La Torre that 720 Ill. Comp. Stat. 570/402(c) could not serve as a prior felony drug offense under 21 U.S.C. § 851. Although Cliff was way past the basic one-year deadline for a 28 U.S.C. § 2255 motion, he filed anyway, arguing that his motion was timely under § 2255(f)(4), which lets a prisoner file a § 2255 motion within one year of “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

The district court held his motion was untimely, despite Cliff’s argument that De La Torre revealed to him the “new fact” that his prior 2000 Illinois state conviction could not qualify as a prior felony drug offense for purposes of the § 851 enhancement.

On appeal, Cliff acknowledged that a judicial decision itself is not a new fact for purposes of § 2255(f)(4) but he argued that the De La Torre decision revealed the “new fact” that his 2000 Illinois state conviction was categorically overbroad under 21 U.S.C. § 851.

factopinion220810The 8th Circuit didn’t buy it, and last week agreed that Cliff’s § 2255 motion was late. The Circuit said that Cliff was relying on the De La Torre decision as the discoverable fact. The Seventh Circuit, in De La Torre, analyzed federal and state law to reach a legal conclusion about a state statute… [But] De La Torre is a judicial decision that, “unlike a predicate conviction, is a ruling exclusively within the domain of the courts and is incapable of being proved or disproved… To borrow Cliff’s language, the De La Torre holding ‘was a total judicial judgment call. We conclude that Cliff fails to show the existence of a new fact and therefore the limitations period enumerated in § 2255(f)(4) was not triggered by the publication of De La Torre.”

Odie v. United States, Case No 21-2652, 2022 U.S.App. LEXIS 21225 (8th Cir., Aug. 2, 2022)

– Thomas L. Root

Peters Sworn In As Director of ‘Beleaguered’ BOP – Update for August 9, 2022

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

PETERS TAKES BOP HELM

Colette S. Peters was sworn in as the Bureau of Prisons 12th director last week, as the Biden administration looks to reform what the Associated Press called a “beleaguered agency.”
petersgarland220810Peters, the former director of the Oregon state prison system, replaced Michael Carvajal, who submitted his resignation in January but stayed in his post until a new director was named. Carvajal announced his retirement amid mounting pressure from Congress, after AP investigations by exposed widespread corruption, misconduct, and sexual abuse of female inmates.

Citing the Benedictine principles of love of neighbor, service, stewardship, justice and peace, Peters said at her investiture that “our mission is twofold: to ensure safe prisons and humane and sound correctional practices so that people reenter society as productive citizens. Our job is not to make good inmates; it is to make good neighbors… I believe in good government, I believe in transparency, and I know we cannot do this work alone. We must come to this work with our arms wide open.”

Peters replaces Carvajal as BOP director only a week after a Senate Permanent Subcommittee on Investigations hearing on BOP mismanagement of USP Atlanta. After being forced by subpoena to appear, Carvajal “refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years, angering both Democratic and Republican senators,” AP reported.

Dumpster220718Writing in Forbes, Walter Pavlo said, “Often frustrated by Carvajal, the subcommittee insisted that Carvajal stop talking about the organization chart in the BOP that prevented important information from reaching his desk.” Subcommittee chairman Sen Jon Ossoff (D-GA), told Carvajal that issues plaguing the BOP “are deeper than your leadership personally. This is clearly a diseased bureaucracy, and it speaks ill to our national values and our national spirit that we let this persist year after year and decade after decade. And if this country is going to be real about the principles at the core of our founding, and our highest ideals, then it can change at the Bureau of Prisons… And it has to happen right now. And with your departure and the arrival of a new director. I hope that moment has arrived.”

During her 10 years at Oregon DOC director, Peters built a reputation as a reformer, vowing to reduce the use of solitary confinement and even banning the use of the term “inmate” in favor of “adult in custody.” Like her counterparts in California and North Dakota, Peters visited Norway five years ago, hoping tobringing a gentler model of incarceration back to the United States.

But as The Marshall Project observed last week, “American prisons are still a long way from Europe’s, and even the most innovative corrections leaders here have overseen horrific living conditions in their prisons and abuse from their staff. In picking Peters to run the Bureau of Prisons, the Biden administration has brought local and state debates to a national stage: Can this new generation of prison leaders, who use words like “dignity” and “humanity,” actually make lives better for the men and women under their control?”

Kevin Ring, president of FAMM, said last week that worrying about who runs the BOP r may be focusing on the wrong problem. “I’m less concerned about who the BOP director is than whether we have an independent oversight mechanism in place,” Ring told The Marshall Project. Although the BOP has an inspector general to perform audits, FAMM has been pushing for legislation to create an oversight body with the authorization and funding to do regular site visits and unannounced inspections.

transparancy220810“During Carvajal’s tenure, the BOP has been a black box,” Ring said in a news release last month. “When COVID began spreading in federal prisons and families’ fears were at their greatest, Carvajal and the BOP somehow became less transparent. The BOP’s opaqueness felt like cruelty. We hope the incoming secretary is prepared to make significant changes to a system badly in need of them.”

Sen Richard Durbin (D-IL), chairman of the Judiciary Committee and Carvajal’s harshest Senate critic, said after meeting with Peters last week, “I’m more hopeful than ever that with Director Peters, Attorney General Garland and Deputy Attorney General Monaco have chosen the right leader to clear out the rot and reform BOP.”

Fox News, AG Garland swears in new director of the federal Bureau of Prisons, pushes for reform (August 2, 2022)

Forbes, Bureau Of Prisons Director Carvajal Leaves Behind A Tainted Legacy Void Of Accountability (July 31, 2022)

The Marshall Project, She Tried to ‘Humanize’ Prisons in Oregon. Can She Fix the Federal System? (August 4, 2022)

Reason, Biden’s New Bureau of Prisons Director Won’t be Able To Run Away From the Agency’s Corruption (August 1, 2022)

Shaw Local News, Durbin meets with newly sworn-in director of federal prisons (August 3, 2022)

– Thomas L. Root

How Many Angels with Guns Can Fit on the Head of a Pin? – Update for August 4, 2022

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

‘WAIVING’ DAVIS RETROACTIVE RELIEF GOODBYE

Robber160229Deandre King was convicted of conspiracy to rob a bank and using or carrying a gun while doing so (an 18 USC § 924(c) violation). He signed a plea deal that, among other things, included a waiver giving up “the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding unless the sentence exceeded the statutory maximum.”  The waiver language included waiving post-conviction motions filed pursuant to 28 USC § 2255.

As you may recall the § 924(c) count is the darling of the prosecution set. A § 924(c) count (for using, carrying or possessing a gun during and in relation to a drug offense or a crime of violence) carries a mandatory sentence of at least five years. Plus, the law requires the mandatory sentence be imposed consecutively to any other sentence imposed. So while the conspiracy to rob might carry an 51-month sentence (as Deandre’s did), piling a § 924 count on top ensured another 84 months (the mandatory minimum where the gun is “brandished”), for  a 135-month stay.

deal160516Deandre’s plea deal probably didn’t seem too bad to him, because the government dropped some other counts, including another § 924(c) count that would have added another five years. Besides, the law was clear: bank robbery was a crime of violence, and all the Circuits had long since agreed that a conspiracy to commit a crime of violence was itself a violant crime.

However, four years after Deandre’s conviction, the Supreme Court held that all the Circuits were wrong. In United States v. Davis, the Supreme Court held that conspiracy to commit a violent offense could not be used as an underlying crime of violence supporting a § 924(c) conviction.

The Davis holding has since been held to be retroactive, so Deandre jumped on it, filing a § 2255 asking his district court to throw out the § 924(c) conviction.

His district court refused, however, holding that Deandre’s plea agreement waiver prevented such a filing. Last week, the 11th Circuit agreed, holding that the mere fact that no one foresaw a change in the law that would nullify a conviction did not invalidate a waiver.

angels170726Deandre argued that the Davis change was the equivalent to his being sentenced in excess of his stastutoery maximum. The argument has some appeal. After all, if he was not guilty of the § 924 count, then the statutory maximum sentence would be zero, and any § 924(c) sentence in excess of zero would exceed the statutory maximum (at least in some metaphysical way).

But the 11th Circuit was uninterested in counting the angels on the head of the pin:

Forcing constitutional claims into the statutory-maximum exception would render the promise of waiver virtually meaningless, robbing defendants of a powerful bargaining tool,” the Circuit held. “Defendants who agree to waive their appeals receive the immediate benefit of reduced penalties in return—as King’s case shows. But if that waiver becomes contingent, whether the defendant wishes it to be or not, a bargain will be much harder to strike… We are not the only circuit court to recognize the value of enforcing appeal waivers against claims based on new constitutional rules… Two of our sister circuits have recently held that such waivers prohibit § 2255 motions based on Davis. The 7th Circuit explained that a Davis challenge did not “satisfy any of its recognized bases for avoiding a valid collateral-attack waiver…” and the 6th Circuit interpreted an explicit carve-out in an appeal waiver for sentences exceeding “the statutory maximum” to refer to “the maximum sentence at the time of sentencing, not to maximum sentences throughout a defendant’s prison term based on future changes to the law.

What this means is that while Deandre is not guilty of the § 924(c) conviction, he’ll do the time for it.

King v. United States, Case No 20-14100, 2022 US App LEXIS 20910 (11th Cir Jul 28, 2022)

– Thomas L. Root