Sentencing Commission Calls for ‘Career Offender’ Rewrite – Update for July 29, 2016

We’re still doing a weekly newsletter … we’re just starting to post pieces of it every day.  The news is fresher this way …

The rich are different… So, apparently, are the violent.

Finding “clear and notable differences” between violent career offenders and drug-only career offenders are The U.S. Sentencing Commission yesterday issued a report on Sentencing Guidelines “career offenders” which recommended nothing less than a wholesale rewrite of the provision to eliminate use of drug trafficking offenses as a basis for applying the enhancement.

Currently, a defendant qualifies as a career offender if he or she is convicted of a violent or drug offense, and has at least two prior similar felony convictions. Career offender status imposes dramatically longer Guidelines sentencing ranges, with a career offender receiving an average sentence of over 12 years. Unsurprising, as a result, career offenders now account for more than 11% of federal prisoners.

Another unsurprising finding is that prosecutors use imposition of “career offender” status as a stick. Defendants facing draconian career offender sentences often elect to cooperate. During the past decade, the percentage of career offenders sentenced within their applicable guideline range has decreased from 43% to 28%, while government-sponsored departures have steadily increased from 34% percent to 46%.

The USSC study found that there’s a real difference between career offenders whose offense of conviction or priors offenses are violent crimes and those whose career offender status arises from drug offenses. The “violents” generally have a more serious and extensive criminal history, re-offend at a higher rate than drug career offenders, and are more likely to commit another violent offenses in the future.

USSC160729The Report says that drug-only career offenders, on the other hand, are “not meaningfully different from other federal drug trafficking offenders and should not categorically be subject to the significant increases in penalties required by the career offender directive.”

The Report called on the USSC to amend Chapter 4B of the Guidelines to “differentiate between career offenders with different types of criminal records, and… focus[] on those offenders who have committed at least one ‘crime of violence’.” At the same time, it called on Congress to adopt a “single definition of the term ‘crime of violence’ in the guidelines and other federal recidivist provisions… to address increasing complexity and to avoid unnecessary confusion and inefficient use of court resources.”

It remains to be seen if the Report’s conclusions result in Sentencing Commission action to change the “career offender” Guidelines, and – more important to the 20,000-plus “career offenders” now doing time – whether any such changes become retroactive.

United States Sentencing Commission, Report to Congress – Career Offender Sentencing Enhancement (July 28, 2016)



print160729In other Sentencing Commission action, just before the bureaucrats beat feet for the mountains and beaches for August, the USSC has just issued a Supplement to the 2015 Sentencing Guidelines Manual incorporating the change in the “violent crimes” definition adopted last January.  The change resulted from the Supreme Court’s Johnson v. United States decision in June 2015, that declared the residual clause of 18 U.S.C. § 924(e)(2)(b)(ii) to be unconstitutionally vague.

Congress had six months to reject the proposed change, but of course did not.  The change becomes effective on Monday, August 1, and affects, among other sections, the “career offender” provisions
of Chapter 4B.

U.S. Sentencing Commission, Supplement to 2015 Sentencing Guidelines Manual (July 29, 2016)LISAStatHeader2small

Child Porn Guidelines ‘Arbitrary,’ Judge Finds – Update for July 28, 2016

We’re still doing a weekly newsletter … we’re just starting to post pieces of it every day.  The news is fresher this way …

Wastrel P. Gravesite – a consummate ne’er-do-well, but a piker next to today’s defendant…

Shawn Cheever is the kind of guy who gives Wastrel P. Gravesite a bad name. He had a petty criminal record as long as Reed Richard’s arm, includes 11 prior felony convictions for forgery, fraud, assault, drug possession, and criminal impersonation. He was known to have used at least seven different aliases. At age 45, he has been sentenced many times to halfway houses and probation, and in all but one instance failed to conform to the rules and ended up in jail or prison. Twice, he was given a deferred conviction, and twice the deferrals were revoked and he was convicted.

Finally, the Feds caught up to him, nailing him for possession of child porn. Like over nine out of ten defendants, he entered a guilty plea to a mandatory 10 year sentence. So far, pretty typical, and anyone can see where this is headed. The sentencing judge is going to hammer this mutt, right?

If that’s all that Senior District Court Judge John Kane had done, there would be nothing to write about, because defendants being hammered in federal court – especially child porn defendants – happens on a daily basis. But instead, Judge Kane issued a 40-page sentencing opinion arguing that the sentencing guidelines for child pornography possession cases are greater than necessary, and not based on studies, statistics, or other bases to explain or justify why the mandatory minimum of 10 years was enacted or whether any other term was considered.

The Judge complained that a sentence of five years — “if permitted” — would allow Shawn to participate in BOP programs that would ensure his safe release with a minimal risk of recidivism.

Judge Kane wrote that “punishment is an unpleasant subject and its efficacy in many cases is questionable. Nevertheless, punishment is an integral part of the sentencing constellation. The noted English jurist, Lord Justice Denning, called punishment “the emphatic denunciation by the community of a crime.” When imposed in public with stated reasons expressed, punishment reinforces the community’s respect and declaration of its moral and legal standards and for that reason is justifiable. When imposed, however, in secret or without rational justifications, it becomes more mocked than feared. As stated by Thomas Jefferson, ‘[I]f the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed’.”

“Arbitrary punishments,” the Judge continued, “are just that and serve little, if any, positive purpose. Even the utilitarian assertion that punishment serves a positive purpose is mitigated by its proviso that every human being should be treated with at least a minimum of respect as a source of rights and expectations and not merely as an instrument for promotion of the social order. Ironically, the revulsion widely felt about crimes involving child pornography is exacerbated by the utter lack of empathy shown to the child victims by the offenders. That callousness alone is a factor that increases the proportional measure for punishment.”

pervert160728The Judge noted that the collateral consequences of the sentence extend far beyond the end of the prison term. “Once released, a prisoner in the United States is frequently barred from the very aspects of law-abiding citizenship that rehabilitation and reform are intended to achieve. A released prisoner is frequently denied the right to vote, the right to sit as a juror and the right to participate in or hold elective office. The released prisoner is barred from numerous entitlements such as public housing, pensions, disability benefits, and perhaps schooling, food and health care. Some public employment is barred and employment in the private sector is exceedingly difficult to obtain. Some companies involved in contracts with the government are likewise prohibited from employing convicted felons. Most released offenders do not receive any assistance in gaining employment or subvention until a legitimate income is received. Small wonder that recidivism is the rule rather than the exception.”

Judge Kane is one of a small but growing cadre of jurists that have denounced child pornography sentences as being unduly severe and unrooted in logic. Last February, we reported on E.D.N.Y. Judge Jack Weinstein sentencing a similar defendant to 5 days in jail in United States v. R.V., Case No. 14-CR-0316 (E.D.N.Y., Jan. 22, 2016). Others have done so, too, but the trend is years away from being a tsunami.

United States v. Cheever, Case No. 15-cr-00031-JLK (D. Colo. Jul 18, 2016)


Voting for Felons – Update for July 27, 2016

 We’re still doing a weekly newsletter … we’re just starting to post pieces of it every day.  The news is fresher this way …


vote160726The kerfluffle over felon disenfranchisement continues in Virginia. Last April, Virginia governor Terry McAuliffe – a Democrat who worked closely with the Clintons before being elected governor in the Commonwealth – restored the voting rights of all ex-felons in the state.

Although McAuliffe had the power to restore voting rights to ex-felons on an individual basis, opponents argued that his authority did not extend to restoring the rights to every felon at once. Last Friday, the Virginia Supreme Court agreed, and nullified the governor’s clemency order.

This week, McAuliffe vowed to sign individual orders restoring the voting rights of more than 200,000 convicted felons living in the state. Republicans have complained that McAuliffe’s move is a cynical political ploy, one that assumes that ex-felons will tend to vote for Democrats and not Republicans, and promised to scrutinize all of the enfranchisement orders for errors.

Virginia is one of just 12 states not permitting ex-felons to vote automatically upon release from prison. However, only two states – Main and Vermont – permit felons to vote while they are in prison.

In a Washington Post article yesterday, Yale law professor Gideon Yaffe argued that all states should not just ex-felons vote, but indeed let them vote while they are incarcerated. He argued that “most felons — whether in prison, on probation or parole, or entirely free of state supervision — are citizens. They should not be treated like foreigners. First of all, they have no other geographic home: They cannot be deported, because citizens have a right to be here. But felons also have no other political home. Nowhere else can they live under a government whose actions are their actions. In this way, they are importantly different from immigrants, who (if they come from a place governed by the rule of law) are granted a say over the behavior of some government somewhere.”

Prof. Yaffe argued that felons were deemed competent to stand trial, so they should be considered competent to vote. He argued, “Many liberals supported McAuliffe’s actions for the wrong reasons. “The Daily Show” host Trevor Noah, for instance, repeatedly noted that McAuliffe wants to restore the vote to people who have “served their time.” But even those still serving time are held to account for any crimes they commit in prison. Denying them the vote destroys the fundamental justification for standing by while the state punishes them — namely, that they brought it on themselves.”

Yaffe, Give felons and prisoners the right to vote, Washington Post, July 26, 2016


Too Much Talk for One Sentence – Update for July 26, 2016

 We’re still doing a weekly newsletter … we’re just starting to post pieces of it every day.  The news is fresher this way …


jones160726Billy Robinson may have just caught his district judge on a bad day. Maybe the judge was a Joe Jones fan. Whatever the reason, the sentencing in Billy’s mine-run drug trafficking case set the judge to such prolixity that even the Court of Appeals for the 7th Circuit said, “enough”.

Billy joined his cousin’s heroin conspiracy at just the wrong time – as though there could ever be a right time to sign up for such an enterprise – as the police were closing in. He sold some dope to an undercover cop, and thus was swept up with the rest of the co-conspirators.

He pled guilty, and was looking at a Guidelines sentence of 84 months. He appeared for what should have been a pretty plain vanilla sentencing, not expecting the district court to deliver wide-ranging soliloquies on urban decay, the changing nature of Robinson’s neighborhood, the “pathology” of certain neighborhoods, and the connection between Milwaukee’s 1967 riots and recent protests in Baltimore.

As the 7th Circuit described it, “the sentencing hearing took a wrong turn by focusing on urban decay, social unrest, and the judge’s personal experiences in the relevant neighborhood… It is inappropriate to blame a defendant for issues of broad local, national, and international scope that only tangentially relate to his underlying conduct.”

badjudge160502The district recalled his college days of Robinson’s neighborhood, noting that many years ago it was a safe place and now it was not, because of the omnipresent drug trade. The Court of Appeals said “these references are troubling because they could be understood as a personal grudge that the judge bore against Robinson for dealing drugs in his old neighborhood… They appear to attribute issues of broad local and national… scope – changing crime rates in cities – to Robinson’s crime, when these issues at best only tangentially relate to his underlying conduct.”

The Circuit said criminal sentences must be based only on the criteria authorized by Congress in 18 U.S.C. § 3553. “The court’s comments made at this sentencing were irrelevant and had no basis in the record. They therefore undermine our confidence in the fairness of the proceeding… Because the district court’s improper extraneous comments were interwoven with its consideration of the Section 3553(a) factors, we have no way of knowing how, if at all, these extraneous considerations influenced Robinson’s sentence.”

The 7th remanded the case for resentencing in front of a different judge.

United States v. Robinson, Case No. 15-2019 (7th Cir. July 22, 2016)


Two Negatives Don’t Make a Positive – Update for July 25, 2016

We’re still doing a weekly newsletter … we’re just starting to post pieces of it every day.  The news is fresher this way …


Not everyone likes high school grammar classes, but we understand that peaking well is the best way to be understood. You know, no dangling participles, no split infinitives, and especially no double negatives.

nuthin160725The double negative: When the Rolling Stones sang, “I can’t get no satisfaction,” they were really saying “I can get satisfaction.” A double negative becomes a positive.

LA banger Kevin Jones could have saved himself some grief if he had listened better in high school (or better yet, attended high school at all). He was arrested after three members of a rival gang were shot at a gas station from a moving vehicle that looked an awful lot like his car. Police questioned him for a few hours without making any progress. But finally, a detective said, “You drove the car. You just didn’t know it was going to happen like that. Kevin, sit up, man.”

Kevin shook his head and replied, “I don’t want to talk no more, man.”

But the cops’ questions continued and so did Kevin’s answers, until he had incriminating himself. After losing at trial, he filed a state habeas corpus claim, arguing that his 5th Amendment rights had been violated by the police.

California state courts took the position that “I don’t want to talk no more, man” was ambiguous, which is technically true. Generally, it means “I don’t want to talk anymore,” but it could mean “I don’t want to talk not anymore.”

Chief Joseph famously said, “I will fight no more forever,” but these words – from a non-native English speaker – had eloquence to them. Kevin’s did not. Still, last week, the 9th Circuit held that the California state courts had been unreasonable in finding his statement ambiguous.

no160725The Circuit panel held that any reasonable judge would have to conclude that when Kevin said he did not want to talk “no more,” he was invoking his right to remain silent. By continuing to question Kevin after his invocation of the right to remain State cannot use as evidence anything he said after his invocation, and contrary to clearly established Supreme Court case law.

“No” means “no,” even if it is used too often.

Jones v. Harrington, Case No. 15-56360 (9th Cir.  July 22, 2016)


Are the Stars Aligning for Sentencing Reform? – Update for July 24, 2016

We’re still doing a weekly newsletter … we’re just starting to post pieces of it every day.  The news is fresher this way …




SR160509Last week may have been the Republican Convention in Cleveland, but some Republicans were baking in the Iowa sun instead, talking about the Sentencing Reform and Corrections Act of 2015. Sen. Charles Grassley (R-Iowa), held a news conference last Wednesday in Des Moines International Airport with Sen. Tim Scott, (R-South Carolina), to talk up the SRCA, which Grassley introduced almost a year ago.

Scott said he is optimistic the SRCA can pass, given the bipartisan support it is receiving from outside groups such as the conservative Koch brothers and the American Civil Liberties Union. “It’s one of those unusual times when the stars align,” Scott said.

Scott and Grassley noted the House is looking at a wider array of criminal justice bills, but they expect both side to narrow in on legislation that can be passed this year.

One hopeful sign is that, according to, the 2016 GOP platform is trying to swap support for the Senate version of SRCA with House bill, which includes mens rea rules that Democrats complain would restrict the prosecution of white-collar executives for violating federal business laws and rules.

The proposed exchange is outline in a section of the platform which calls for reductions in penalties for criminals that mostly hurt blue-collar communities and minority communities, such as gangs and drug traffickers who are convicted for apparently non-violent crimes.

The platforms offer of reduced jail sentences for blue-collar criminals — drug-runners, murderers, muggers — is tied to a rollback of criminal prosecutions rules. Democrats are reluctant to trade the mens rea, guilty mind rollback for the opportunity to release criminals back onto the streets.

actus160222Yet unless Democrats agree to the mens rea requirements, crucial swing-vote Sen. Orrin Hatch (R-Utah) said in May that he won’t back the SCRA. “The current criminal justice bill is inadequate … [unless it deals with] the problem of over-criminalization,” he said.

House Speaker Paul Ryan (R-Wisconsin) said two weeks ago that he intends to push the SRCA and other criminal justice bills slashing sentences for federal prisoners amid rising murder rates in U.S. cities, cops being targeted for execution by black radicals, and a heroin epidemic fueled by Mexican drug cartels and their illegal alien traffickers.

The SCRA companion bill has stalled in the Senate after several prominent Republicans, including Sens. Jeff Sessions, Tom Cotton, and David Vitter — along with law enforcement groups — slammed the bill, saying it would sign “death warrants” for more crime victims.

Ohio State law professor Doug Berman said in his sentencing law post last month that the SRCA was essentially dead in Congress, but last week he said, “I am certain Senator Grassley knows a lot more than I do about whether it may still have some legislative life left in it. I sure hope so.”


A Kinder, Gentler Robbery – Update for July 23, 2016

We’re still doing a weekly newsletter … we’re just starting to post pieces of it every day.  The news is fresher this way …


Corey Jones had just finished a 92-month sentence for being a felon-in-possession, but apparently his nearly eight years in federal stir was not quite long enough to get through to him. While in halfway house, he got into a shouting match with a staffer. The U.S. Marshals came to get him, whereupon he bit one of them on the finger.

Charged with assaulting a federal officer, Corey faced 210 additional months because his Guidelines set him as a career offender, based on – among others – a prior New York first-degree robbery. The 2nd Circuit had already held that New York Robbery 1 was a violent crime, but that was before Johnson v. United States.

Thursday, the 2nd Circuit reversed its prior stance, agreeing with Corey that after Johnson, New York 1st degree robbery was no longer a violent crime. The Court acknowledged that under Johnson, “the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another. Correspondingly, force that is not “capable of causing physical pain or injury to another,” i.e. less‐than‐“violent,” cannot qualify a crime as a violent felony…”

Robber160229A defendant commits 1st degree robbery in New York when he commits a robbery and during the course of the crime or his immediate flight either causes serious physical injury to any other person who is not a participant in the crime, is armed with a deadly weapon, uses or threatens the immediate use of a dangerous instrument, or displays what appears to be a gun. The Court found the New York statute to be divisible, but it could not tell from the record which subdivision Corey had violated. Thus, it had to rely on the least of the four subsections, being armed with a deadly weapon.
The case turned on whether the force that a defendant used in the robbery was “violent force.” The Circuit found that New York law interprets “‘forcible stealing’ so that it does not always involve “force capable of causing physical pain or injury to another’.”

The Court was talking about a concealed firearm...
The Court was talking about a “concealed and unmentioned” firearm. Probably not this one…

That leaves the gun. Considering whether the presence of a firearm turns a less-than-violent encounter into a violent on, the Court of Appeals decided that “when we conduct the inquiry Johnson requires, we cannot conclude that the presence of a gun that a robber does not display, use, or threaten to use during a robbery has any effect on the nature of the force that the robber exerts on his victim. Put another way, a robber’s possession of a concealed and unmentioned weapon while he commits a robbery can support a first‐degree robbery conviction… but such possession cannot turn what is otherwise less‐than‐violent force into violent force. It is therefore possible to commit first‐degree robbery in New York in a way that does not fall within the Career Offender Guideline’s definition of ‘crime of violence’.”

Thus, the 2nd concluded, “in the wake of Johnson that a New York robbery conviction involving forcible stealing, absent other aggravating factors, is no longer necessarily a conviction for a ‘crime of violence’ within the meaning of the Career Offender Guideline.”

United States v. Jones, Case No. 15-1518 (2nd Cir. July 21, 2016)


A Really Bad Idea – Update for July 22, 2016

We’re still doing a weekly newsletter … we’re just starting to post pieces of it every day.  The news is fresher this way …


badidea160725Good criminal defenses can rely on all sorts of time-tested strategies to win acquittal for a defendant, even after conviction. John Walthall tried one that was not so good. Really not good at all.

John was convicted in Los Angeles federal court last Tuesday of trying to hire some fellow inmates to kill the team of lawyers and agents who prosecuted him, and then, for good measure, kidnaping the judge who presided over the trial and feeding him into a wood chipper.

This was on top of his prior bad idea of becoming a fugitive instead of showing up for his trial, a fraud case in which he was accused of fleecing some elderly people out of a couple million dollars.

Once behind bars, the government contended, John approached two inmates with his plans. He issued step-by-step instructions, prosecutors said. Hired hands would assault and murder the team of prosecutors and FBI agents who won the fraud conviction against him, while the judge would be kidnapped and forced to exonerate John before being tortured with the wood chipper. In return, John agreed to pay up to $1 million per victim, according to court papers. Probably in commissary.

But the two inmates’ families notified the FBI. The FBI sent an additional co-conspirator (who unsurprisingly was actually an undercover agent). John’s plans quickly went awry.

John’s lawyers argued their client was crazy and was just saying crazy things, but BOP psychiatrists found him quite sane.

John faces a maximum sentence of another 20 years on top of the 14 he’s already doing for the fraud, thus proving that no matter how bad things are for you, they can always get worse. Always.

Los Angeles Times, Man is convicted of plotting to kill a judge with a wood chipper in a case resembling ‘Fargo’ (July 20, 2016)


Two FOIA Decisions Affecting Criminal Law – Update for July 21, 2016

We’re still doing a weekly newsletter … we’re just starting to post pieces of it every day.  The news is fresher this way …

(Note: We updated this post on July 23, 2016)



GBL160725Two Freedom of Information Act decisions of particular interest to our readers were handed down in the past few days, one good for inmates and one bad.  And a case filed in D.C. Federal Court accuses the FBI of a FOIA practice that;s just plain ugly.

The Good: A week ago, the 6th Circuit reversed its 20-year holding that arrestees’ mugshots are discoverable by the news media and public under FOIA. The Court summarized its holding as follows: “In 1996, we held that FOIA required the release of booking photos of criminal defendants who have appeared in court during ongoing proceedings, finding that criminal defendants lack any privacy interest in the photos. Detroit Free Press, Inc. v. Dep’t of Justice (Free Press I), 73 F.3d 93 (6th Cir. 1996). Twenty years and two contrary circuit-level decisions later, we find Free Press I untenable. Individuals enjoy a non-trivial privacy interest in their booking photos. We therefore overrule Free Press I.”

The holding is especially important because it affected arrestees around the country. No matter what other circuits said, if a newspaper in Los Angeles, for instance, needed the booking photo of Dennis Defendant – who was being held in San Diego – the reporters would just call a buddy at the Detroit News (or anywhere else in the 6th Circuit). The Detroit reporter would request the picture, and because any FOIA action to get it could be filed in the 6th Circuit, the San Diego cops would send the photo.

 No more free booze at Christmas for 6th Circuit-based reporters...
No more free booze at Christmas for 6th Circuit-based reporters…

No more. The 6th Circuit is now aligned with other federal circuits. This means that reporters in Detroit doing favors for their friends elsewhere in America can no longer look forward to that bottle of single malt arriving every Christmas.

The Bad: The National Association of Criminal Defense Lawyers asked the DOJ for a copy of the Federal Criminal Discovery Blue Book. The Blue Book is a manual created by DOJ to guide federal prosecutors in the practice of discovery in criminal prosecutions containing advice about conducting discovery, including guidance about the obligation to provide discovery to defendants. It would be a treasure trove for defense attorneys, like having the other team’s playbook before the game.

Naturally, DOJ refused to disclose the Blue Book, invoking FOIA Exemption 5, which exempts from disclosure agency records that would be privileged from discovery in a lawsuit with the agency. DOJ said the Blue Book fell within the attorney work-product privilege, and therefore Exemption 5, because it was prepared by and for attorneys in anticipation of litigation. The district court agreed . Last week, the D.C. Circuit did, too.

Under Exemption 5, agencies may withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Exemption 5 allows the government to withhold records under at least three privileges: the deliberative-process privilege, the attorney-client privilege, and the attorney work-product privilege.

Here, the Court said, release would offend the attorney work-product privilege. The privilege provides a working attorney with a ‘zone of privacy’ within which to think, plan, weigh facts and evidence, candidly evaluate a client’s case, and prepare legal theories, the Court said. “Protecting attorney work product from disclosure prevents attorneys from litigating “on wits borrowed from the adversary.”

In ascertaining whether a document is covered by the work-product privilege, the Court applied a “‘because of’ test, asking whether, in light of the nature of the document and facts in the case, the document “can fairly be said to have been prepared or obtained because of the prospect of litigation.” For that standard to be met, the attorney who created the document must have “had a subjective belief that litigation was a real possibility,” and that subjective belief must have been “objectively reasonable.”

BlueBook160725The Blue Book describes the nature and scope of federal prosecutors’ discovery obligations under applicable constitutional provisions, caselaw, and the Federal Rules of Criminal Procedure. It has nine chapters, written by DOJ prosecutors with expertise in a wide range of discovery-related topics, addressing subjects including: Federal Rule of Criminal Procedure 16, regarding discovery; the government’s obligations to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972); disclosure duties arising from the Jencks Act, 18 U.S.C. § 3500; items protected from disclosure; and the use of protective orders and ex parte and in camera submissions in discovery. The Blue Book contains confidential legal analysis and strategies to support the Government’s investigations and prosecutions, and is nothing less than an internal manual containing litigation strategies.

Thus, the Court concluded, the Blue Book was “created in anticipation of reasonably foreseeable litigation,” namely, federal criminal prosecutions, and does not have to be disclosed.

The Ugly:  A lawsuit filed recently in the U.S. District Court for the District of Columbia claims the FBI uses outdated information technology systems to deliberately block FOIA requests. A Massachusetts Institute of Technology security researcher claims the agency deliberately runs FOIA searches through a decades-old system – knowing the searches will fail to produce any results.

“The FBI will do anything in their power to maintain functional immunity from FOIA requests. They’re outright hostile to FOIA,” the researcher told the Wall Street Journal. He says instead of full-text search, the agency uses an antiquated index system similar to a library card catalogue.

The FBI denies the allegation.




Detroit Free Press v. Dept. of Justice, Case No. 14-1670                           (6th Cir. July 14, 2016)

Nat’l Ass’n of Criminal Defense Attorneys v. Dept. of Justice,                  Case No. 15-5051 (D.C. Cir. July 19, 2016)

FBI Blocking FOIA Requests With Aging IT, Lawsuit Alleges, Wall Street Journal (July 22, 2016)


Prisoners with Disabilities – Update for July 20, 2016

We’re still doing a weekly newsletter … we’re just starting to post pieces of it every day.  The news is fresher this way …



America’s four-decade-long experiment with mass incarceration and overcriminalization is widely recognized as a failure, according to a study on the disabled in America’s prisons issued earlier this week.

disabledgraf160725The report, Disabled Behind Bars – The Mass Incarceration of People With Disabilities in America’s Jails and Prisons, argues “the crushing impact of the criminal justice system’s failure is felt acutely in communities across the United States. Significant and growing research shows how certain populations — including communities of color; residents of high-poverty neighborhoods; and lesbian, gay, bisexual, and transgender, or LGBT, individuals — have been particularly hard hit. But rarely discussed is the impact of the criminal justice system on Americans with disabilities.”

Over 30% of prison inmates and about 40% of jail detainees suffer from hearing, vision, cognitive, ambulatory, self-care, or independent living disabilities, the report states. “People with disabilities are thus dramatically overrepresented in the nation’s prisons and jails today. According to the Bureau of Justice Statistics, people behind bars in state and federal prisons are nearly three times as likely to report having a disability as the non-incarcerated population.”

The report also found a dearth of support for disabled prisoners, who are “often deprived of necessary medical care, as well as needed supports, services, and accommodations.” The report claims that this imbalance of needs and services exists despite long-standing federal disability rights laws such as the Americans with Disabilities Act and other statutes “that mandate equal access to programs, services, and activities for all people with disabilities in custody.”

The study called for a number of changes in the approach to disabled inmates, including establishing of an Office of Disability within the Department of Justice, more diversion of the disabled into community-based corrections, and enhancing training and resources within prisons to ensure compliance with the Americans with Disabilities Act.

Disabled Behind Bars was written by Rebecca Vallas and published by The Center for American Progress, a liberal think tank in Washington, D.C.

Center for American Progress, Disabled Behind Bars – The Mass Incarceration of People With Disabilities in America’s Jails and Prisons (July 2016)