Musings on a Slow Month – Update for July 26, 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.

THE GOOD, THE BAD, AND THE WEIRD

summertime220725In the only good news to come from Washington so far this sleepy July, Senate Democrats have introduced a bill to decriminalize marijuana at the federal level this week, although the legislation faces long odds in the evenly divided chamber.

Majority Leader Charles Schumer (D-NY) worked with Sen Cory Booker (D-NJ) and Ron Wyden (D-OR) on the measure. The senators circulated a draft of the bill last year and made tweaks after feedback from Senate committees.

The Cannabis Administration and Opportunity Act (S.4591) would remove marijuana from the list of drugs covered by the Controlled Substances Act. States, however, can still maintain and create prohibitions on producing and distributing marijuana.

marijuana160818The CAOA is the Senate’s answer to the MORE Act (H.R. 3617), passed in the House last spring on a 220-204 vote. Like the MORE Act, the CAOA will require all federal non-violent marijuana-related convictions and arrests be expunged within a year. Some lawmakers on both sides of the aisle have criticized Schumer for trying to push through a broad cannabis reform bill at the expense of a marijuana banking bill that has greater bipartisan support.

The bad is that the EQUAL Act (S.79), which passed the House (361-66) last September, remains stalled in the Senate. The Act, which would equalize sentences for crack and powder cocaine (and offer retroactivity to anyone serving a crack offense now) has well over 60 votes in the Senate. The Senate Majority Leader – the guy who schedules votes on bills – is a cosponsor. So what’s the holdup?

In a long article on a crack cocaine defendant who finally got compassionate release, the Mississippi Free Press last week reported, “FAMM President Ring told the Mississippi Free Press more about what he sees as the senators’ political calculations. ‘The problem is that lawmakers are scared that if this bill comes up, Republicans will be allowed to offer amendments to it because that’s usually how the process works,’ he said.

Ring said that votes on amendments unrelated to the bill can be “weaponized by political opponents… As a result, the political calculation has been made to shelve the bill in the Senate.”

crackpowder160606In addition, Dream Corps JUSTICE Policy Director Kandia Milton, in June 23, 2022, letter, indicated that the group is concerned about a competing Senate bill sponsored by Sen Charles Grassley (R-IA) — the SMART Cocaine Sentencing Act, S.4116 – that “maintains a disparity between these two forms of the same drug (2.5-1), lower the mandatory minimum threshold to 400 grams from 500 grams and, worst of all, mandates that the U.S. Attorney must approve all petitions for retroactivity.” Milton wrote. “Our sense of urgency is driven by the reality that if we do not pass [EQUAL] by the August recess, we won’t get another clean shot until after the midterm elections, an unpredictable two-month window at the end of the year,” he added. “We are very close to eliminating the disparity between crack cocaine and powder cocaine, and we recognize there is more work to be done.”

The weird: Two weeks ago, the Senate Judiciary Committee whiffed for a second time on approving the nomination of the seven candidates for the Sentencing Commission. At the beginning of last Thursday’s work session, Durbin said, “We have decided on a bipartisan basis to hold over for a second time the Sentencing Commission nominees while members are in… we’re going to try to find a path for all seven nominees to move together, which I think would be a positive thing and maybe even historic around here.”

The terse statement suggested some substantial pushback on one or more nominations. Laura Mate, who signed a 2014 letter to Congress supporting more reasonable mandatory minimums for sex offenders, and former federal judge John Gleeson, whose criticism of the Guidelines while on the bench was legendary, were both pilloried by several Republicans during their June nomination hearing.

Nevertheless, last week the Committee finally got the job done. It advanced the slate of seven nominees to the floor of the full Senate for its approval, bringing the Commission one step closer to being able to amend the Sentencing Guidelines.

noquorum191016The USSC has been unable to implement the First Step Act or, for that matter, do anything else after losing its quorum just as the bill was enacted in December 2018.

The Senate Judiciary Committee voted to send to the full Senate four Democrat and three Republican candidates nominated by President Joe Biden to revitalize the Commission.

Committee chairman Durbin told the Committee that while he had reservations about some nominees, it was important to move them forward as a group to “enable the commission to get back to doing its work.” He said, “[T]he Sentencing Commission has not had a quorum for three years. With no quorum, the Commission—created in 1984 and tasked by Congress to promote transparency and consistency in sentencing—has been unable to update the sentencing guidelines to provide guidance to judges. Today, we make an important step to rectify the situation… [and] enable the Commission to get back to its work.”

Cannabis Administration and Opportunity Act (S.4591)

Seeking Alpha, Senate Democrats-backed marijuana legalization bill coming next week (July 14, 2022)

Bloomberg, Pot Gets Senate’s Attention in Long-Shot Decriminalization Bill (July 14, 2022)

Politico, Schumer’s legal weed bill is finally here (July 21, 2022)

KYFR, North Dakota lawmakers, advocates push for equal sentencing in federal cocaine and crack crimes (July 12, 2022)

Senate Judiciary Hearing (July 14, 2022)

Mississippi Free Press, ‘Model Inmate’: Father Finally Has Crack Sentence Reduced as U.S. Senate Shelves Reform Bill (July 22, 2022)

Independentcloud.com, Cannabis Bill Senate: US Democrats Demand Senate Pass Its Own Marijuana Banking Bill (July 21, 2022)

Reuters, US Senate committee advances nominees to restock sentencing panel (July 21, 2022)

Sen Richard Durbin, Judiciary Committee Advances Ten Nominees, Including Two Judicial Nominees, Seven Sentencing Commission Nominees, And An Assistant Attorney General (July 21, 2022)

– Thomas L. Root

“Supreme Court – Meh,” 7th Circuit Says – Update for July 19, 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.

‘CONCEPCION’? WHAT ‘CONCEPCION?’ 7TH CIRCUIT ASKS

When the Supreme Court handed down the Concepcion v. United States decision a few weeks ago, I thought that the holding – that district courts’ discretion to consider any relevant information in resentencing is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence – would resolve a circuit split surrounding what factors can serve as the basis for compassionate release.

Sentencestack170404I was especially focused on cases in which courts were asked to rely on non-retroactive changes in sentencing law – such as the First Step Act’s ban on § 924(c) “stacking” – as a basis for compassionate release. After all, nothing in the text of 18 USC § 3582(c)(1)(a) supports the notion that non-retroactive changes are excluded from being “extraordinary and compelling.”

Who could possibly disagree?

The 7th Circuit, maybe. Last week, that Circuit rejected reliance on non-retroactive changes in statute as a basis for compassionate release. Christopher King was serving a mandatory minimum sentence for drug distribution that had been lowered by the First Step Act. He argued the statutory change – while not retroactive – was an extraordinary and compelling reason for a sentence reduction.

extraordinary220719The 7th disagreed, holding that when deciding whether “extraordinary and compelling reasons” justify a prisoner’s compassionate release, judges must not rely on non-retroactive statutory changes or new judicial decisions.” The Circuit ruled that “there’s nothing ‘extraordinary’ about new statutes or caselaw, or a contention that the sentencing judge erred in applying the Guidelines; these are the ordinary business of the legal system, and their consequences should be addressed by direct appeal or collateral review under 28 U.S.C. § 2255.”

The 7th observed that

Concepcion… held that, when substantive changes made by the First Step Act (principally reductions in the authorized ranges for crack-cocaine crimes) entitle a prisoner to be resentenced, the judge may consider everything that would have been pertinent at an original sentencing. We may assume that the same would be true if a district judge were to vacate a sentence on application for compassionate release and hold a full resentencing proceeding. But… the threshold question [is] whether the prisoner is entitled to a reduction under § 3582(c)(1)(A)… The First Step Act did not create or modify the “extraordinary and compelling reasons” threshold for eligibility; it just added prisoners to the list of persons who may file motions. We take the Supreme Court at its word that Concepcion is about the matters that district judges may consider when they resentence defendants. So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an “extraordinary and compelling” reason for release.

7thConcepcion220719Writing in his Sentencing Law and Policy blog, Ohio State law professor Doug Berman quite rightly complained, “[T]his new King decision reiterates the misguided notion that district judges are categorically excluded from ever considering ‘non-retroactive statutory changes or new judicial decisions’ even though Concepcion stressed that the ‘only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution.”

Concepcion v. United States, Case No 20-1650 (Supreme Court, June 27, 2022)

United States v. King, Case No 21-3196, 2022 U.S.App. LEXIS 18987 (7th Cir., July 11, 2022) 

Sentencing Law and Policy, Seventh Circuit panel refuses to reconsider its extra-textual limit on compassionate release in light of Supreme Court’s Concepcion decision (July 11, 2022)

– Thomas L. Root

The King is Dead, Long Live the Queen – Update for July 18, 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.

NEW ‘REFORM’ SHERIFF COMES TO BOP

Colette S. Peters, the longtime director of the Oregon Department of Corrections, has been tapped to lead what The New York Times last week called “the chronically mismanaged and understaffed federal Bureau of Prisons.”

Dumpster220718The appointment comes after a 5-month search to replace current BOP Director Michael Carvajal. Carvajal announced his retirement in January under pressure from Senate Democrats – especially Judiciary Committee Chairman Richard Durbin (D-IL) – who questioned his management.

The Times said Peters “was considered the favored candidate for a job seen as one of the Justice Department’s most demanding and thankless assignments.” Kevin Ring, president of FAMM, was blunter:  “Colette Peters is walking into a dumpster fire. From sexual violence and medical neglect to understaffing and years-long lockdowns, the BOP’s leadership has allowed a humanitarian crisis to develop on its watch. Families with incarcerated loved ones have been begging for change.”

The Associated Press reported that “Peters, who championed steeply reducing [Oregon’s] inmate population in the last decade, will inherit a federal agency plagued by myriad scandals. Her hiring comes about seven months after Director Michael Carvajal submitted his resignation amid mounting pressure from Congress after investigations by The Associated Press exposed widespread corruption and misconduct in the agency.”

Those issues include health and safety problems, physical and sexual abuse, corruption and turnover in the top management ranks. Staffing issues, exacerbated by the pandemic, have resulted in a huge shortage of prison guards and health personnel, according to an AP investigation last year, which uncovered a wide array of other shortcomings.

bureaucracy180122When she takes office on Aug 2, Peters will become only the second director in BOP history with no prior experience in the federal prison system. Deputy Attorney General Lisa Monaco, who led the search to replace Carvajal, said DOJ had been looking for someone focused on reforming an agency that has had cultural issues for decades.

Durbin had been especially critical of Carvajal, who started his BOP career as a correctional officer 30 years ago, accusing him of failing to properly implement the First Step Act. Last winter, he called repeatedly for Carvajal’s firing, describing the BOP as rife with abuse and corruption.

The accuracy of that criticism was underscored this week by a Forbes report that 42 months after First Step became law, the BOP is only now beginning staff training on how to apply earned-time credits for inmates, with training set to start next month. Forbes said, “While the training on FSA is a great idea, it also serves as verification that the BOP is way behind on implementing the most important aspect of the law, which is to allow prisoners to earn time off of their sentences. After training, it will take months to coordinate local training at the institution level. Until then, expect the chaos to continue and questions to go unanswered.”

Shane Fausey, national president of the Council of Prison Locals, which represents BOP employees, welcomed the selection of Peters. “We believe that the lessons [Peters] learned while leading the Oregon Department of Corrections can be used to effectively improve the BOP,” he told Government Executive. “Additionally, it is extremely important that officer and employee safety are prioritized in all decisions.”

Rep Fred Keller (R-PA), chair of the House BOP Reform Caucus, said, “I look forward to maintaining an active and productive relationship with Director Peters in her new capacity on BOP priorities such as improving the agency’s operations, increasing correctional officer staffing levels, and ensuring the safety of staff and inmates.”

Peters has faced criticism during her stint as ODOC chief. She was accused in a lawsuit of placing underqualified friends in high-ranking positions within the ODOC and creating openings for them by firing other employees or creating a hostile environment causing other employees to quit.

Bobbin Singh, the executive director of the Oregon Justice Resource Center, last week expressed concern about Peters’s appointment given his experience with her. “This appointment is an insult to all those incarcerated in Oregon who are fighting for their civil rights and dignity,” Singh told the online publication Law Dork last Tuesday.

Less than a month ago, his organization sent a report to Oregon lawmakers detailing ongoing problems at ODOC. In the letter to lawmakers accompanying the report, Singh wrote, “Despite a cascade of evidence revealing serious issues within the department, ODOC continues to put forward a misleading narrative that either ignores the issues entirely, profoundly sanitizes the facts, or wrongly shifts blame and responsibility away from itself.”

goodbad220718Law Dork reported, “Another person familiar with Peters’s work helped explain how Singh could have such criticisms and DOJ could nonetheless want Peters for the job: ‘She both runs a bad system and is one of the handful of best DOC heads in the country. She has made some concrete improvements to the system. But the system is still really bad. It says so much about American prisons that ODOC can both be very bad — and be one of the better ones in the country.’”

NY Times, Justice Department Taps Oregon Official to Run Troubled Bureau of Prisons (July 11, 2022)

Associated Press, Justice Dept taps reforming outsider to run federal prisons (July 12, 2022)

Forbes, 42 Months After The First Step Act Was Signed Into Law, The Bureau Of Prisons Starts Training Staff (July 15, 2022)

Govt Executive, A New Federal Prisons Director Has Been Named, and Union Officials and Lawmakers Are Optimistic She Will Bring Positive Reforms (July 12, 2022)

Law Dork, New Prisons Head Comes From Oregon, With Baggage (Jul y 13, 2022)

FAMM, FAMM releases statement on new Bureau of Prisons Director (Jul 12)

– Thomas L. Root

A Dollop of Common Sense on § 2255 Review – Update for July 14, 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.

A DAVIS/TAYLOR ROADMAP

Last week, the 8th Circuit provided a “how-to” instruction manual for people looking to challenge their 18 USC § 924(c) convictions in the wake of United States v. Davis and, more recently, United States v. Taylor. It’s a good read.

robber160523In 2005, Christopher Jones pleaded guilty to conspiracy to commit Hobbs Act robbery (18 USC § 1951) and brandishing a firearm during a crime of violence. Originally, Chris was charged with conspiracy to commit a Hobbs Act robbery and two counts of attempting and aiding and abetting the robbery. Although the § 924(c) count was linked to all three counts, under Chris’s plea deal, the government threw out all of the counts except the conspiracy and § 924(c) charges.

After Chris’s conviction became final, the Supreme Court handed down Davis. Chris promptly moved under 28 USC § 2255 to have his § 924(c) conviction thrown out.

His district court denied the § 2255 motion on the grounds of clairvoyance. It seems Chris’s appeal lawyer could not see into the future. On appeal, he didn’t waste any space in the brief arguing that the Hobbs Act conspiracy was not a crime of violence, because the 8th Circuit – like many others – had always held that it was.

Too bad, the district court said. He should have imagined that someday a case like Davis would reverse what the Circuit said was law. Thus,  Chris had “procedurally defaulted” on the issue and could not raise it in a § 2255.

Last week, the 8th Circuit opted for common sense. It held that Chris had established “cause” for failing to raise the issue that ultimately won in Davis on direct review, “because the state of the law at the time of his appeal did not offer a reasonable basis upon which to challenge the guilty plea.” Chris’s Davis claim was reasonably available only after the Supreme Court in Johnson v. United States held that the residual clause of § 924(e) was unconstitutionally vague.

violence160110Significantly, the 8th held that none of Chris’s predicate convictions supported a § 924(c) charge. “Conspiracy to commit Hobbs Act robbery does not qualify,” the Circuit held, “because conspiracy does not have as an element ‘the use, attempted use, or threatened use of physical force against the person or property of another,’ and the Supreme Court held in Davis that the residual clause is unconstitutionally vague.” And the count for “aiding and abetting an attempted Hobbs Act robbery does not qualify, because no element of the attempted robbery offense requires that the defendant use, attempt to use, or threaten to use force,” the 8th ruled, citing last month’s Supreme Court Taylor ruling.

Finally, the appeals court said, “Davis qualifies as a substantive rule that applies retroactively. By declaring unconstitutional the residual clause of § 924(c)(3)(B), Davis changed the substantive reach of § 924(c), altering the range of conduct or class of persons that the statute punishes… Accordingly, we must apply Davis in this postconviction proceeding.”

Jones v. United States, Case No. 20-2067, 2022 U.S. App. LEXIS 18412 (8th Cir., July 5, 2022)
.

– Thomas L. Root

BOP’s Ship Takes On Water – Update for July 12, 2022

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EDITOR’S NOTE: ARE WE INFLUENTIAL OR WHAT?

Only a couple of hours after we posted this, the Dept. of Justice announced that Colette Peters had been hired as BOP director.  While some may say that this is post hoc, ergo proper hoc reasoning, we’re quite willing to think that Merrick Garland starts his day with LISA’s posts.

BOP’S SHIP SLOWLY SINKS AS SEARCH FOR CAPTAIN SEEMS TO BE STALLED

sinking220712With July 4th, last week was short. Good thing, too, because the Bureau of Prisons probably could not have taken a fifth day of bad news.

First, an Associated Press report on a lawsuit about conditions at FCI Sheridan said that the Oregon Public Defender Lisa Hay alleged in a filing that the BOP turned off water at the Sheridan detention center in order to end refusal by some detainees to eat.

The warden allegedly issued a memo to detainees that “showers are postponed due to continued threats of assault to staff.” The court filing said that temperatures in Sheridan reached 90 degrees when showers were withheld.

Oregon Public Broadcasting said BOP “didn’t answer questions about the memo or whether the water was cut off in an effort to end the hunger strike.”

Conditions inside the federal prison have been the subject of concern since the pandemic took hold in 2020. Hay has in court filings detailed lockdowns that have lasted for days. In other filings, her office has documented poor medical and dental care that has left many suffering.

Meanwhile, in a letter Wednesday to Deputy Attorney General Lisa Monaco, USP Thomson staff and union leaders called for the immediate removal of Warden Thomas Bergami, citing “an abundance of serious incidents” and the mass departure of 60 correctional officers since March.

“Warden Bergami has failed within his position of trust and has placed the staff, inmates and communities at risk,” AFGE Local 4070 President Jonathan Zumkehr wrote. “Attempts to address these issues directly have gone unheeded and even to the extent of being covered up and or distracted from the facts… Managers are blatantly violating laws and refusing to adhere to local agreements, placing the hard-working staff in limbo with ever-changing policies and procedures that have done nothing but set USP Thomson ablaze.”

Bergami has only been at Thomson since March.

The BOP settled two lawsuits last week. One, a 20-year old suit by six people detained after 9/11 at MDC Brooklyn, included a cash payment and letters to each of the plaintiffs from BOP Director Michael Carvajal wrote a letter to each of the men saying the Dept of Justice had determined they were “held in excessively restrictive and unduly harsh conditions of confinement and a number of individuals were physically and verbally abused by certain MDC officers.”

sorry190124“I don’t know that the director of the Bureau of Prisons has ever signed a letter of this nature before to individual clients, so that is unique,” Rachel Meeropol, an attorney for the men, said.

On June 28, the BOP settled the two-year-old FCC Lompoc class action, agreeing “to comply with Attorney General Barr’s March 26 and April 3, 2020 memoranda, the current BOP guidance at the time of each review, and the standards set forth in this Court’s orders when making decisions about a request for home confinement. In addition, the agreement requires Respondents to transfer individuals within one month of the decision granting home confinement and, if the transfer does not occur timely Respondents must provide an explanation of the reasons for the delay.”

The agreement substantially contains the terms previously imposed by the court in an injunction and enforcement orders.

covidneverend220627Last week, the BOP reported two more inmate COVID deaths, an April 21 death at USP Tucson and a May 16 death at Yazoo City Medium. Both men had previously had COVID and been declared to have recovered. The federal prisoner inmate COVID death total now stands at 319 or higher. COVID cases ended the week at 520 (inmates) and 338 (staff), the highest since the beginning of March.

Finally, there seems to be no movement on a new BOP Director since Colette Peters, director of the Oregon prison system, was reported to be a finalist for the post almost a month ago. One would hardly blame her for any second thoughts she might be having.

KGW-TV, Lawyer: People at federal prison in Oregon denied showers amid hunger strike (July 5, 2022)

Corrections1, Prison staff, union call for warden’s removal after ‘abundance of serious incidents’ (July 7, 2022)

Colorado Springs Gazette, Feds settle suit alleging abuse by men detained after 9/11 (July 5, 2022)

Santa Maria Times, Settlement reached in Lompoc prison COVID-19 class action laws (July 7, 2022)

Joint Motion, Torres v Milusnic, Case No 2:20cv4450 (CD Cal)

BOP, Inmate Death at USP Tucson (July 6, 2022)

BOP, Inmate Death at FCI Yazoo City Medium (July 6, 2022)

– Thomas L. Root

Butterfly Wings Don’t Beat For Innocence – Update for July 7, 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.

THE BEIJING BUTTERFLY

butterfly220707When mathematician Edward Lorenz first posited the notion that a butterfly flapping its wings in Beijing today could affect the path of a tornado in Kansas three weeks hence, his fanciful illustration became the interface with chaos theory that the average Joe and Jane could understand. Essentially, the butterfly effect is the sensitive dependence on initial conditions in which a small change in one state of a deterministic nonlinear system can result in large differences in a later state.

When a federal defendant is presented with a plea agreement and told by her lawyer that it’s the best deal she can hope for, the fine print is rarely explained. That includes Section 10(b)(1)(A)(iii) on page 12 which says something like “Defendant waives the right to challenge the conviction or sentence under 18 USC § 3742 or on any collateral attack under 28 USC § 2255 or other section, except in cases of ineffective assistance of counsel.”

pleawaiver220707And why not sign it? The defendant is under plenty of stress as she contemplates agreeing to spending a decade in prison, and a lot of that gibberish in the back of the plea agreement means a lot less to her than her attorney’s blandishments that the judge certainly won’t give her more than 48 months.

In chaos theory parlance, the appeal/collateral attack waiver is a pretty small input. Only later does the output become huge.

The Supreme Court left for vacation in time for the 4th of July. Like a fireworks display, the finale was stellar and stunning: abortion, guns, prayer, and the biggest case of all, a decision that may spell doom for the administrative state. But just like many fireworks finales, after the final glowing detonation fades, one straggler rocket goes airborne, with no light but a surprise reverberating boom.

Last Thursday, the Court released its final list of certiorari grants and denials for the term, announcing the one or two cases it will add to next term’s docket while denying a long list of petitions. One of the denials was a guy named Zenon Grzegorczyk (pronounced just the way it sounds). Zenon, a good father, wanted to murder six people whom he blamed for his divorce and for the loss of custody of his child. He hired and paid hitmen to pull it off.

hitman220707Problem was that Zenon, not being an avid news consumer, was unaware that all hitmen available for hire are undercover law enforcement officers, moonlighting for some pocket money. Thus it was in this case. Zenon was promptly charged with murder for hire (18 USC § 1958) and an 18 USC § 924(c) count for using a firearm during and in relation to a crime of violence.

Zenon signed a plea agreement in which, among other things, he waived any right to challenge his murder-for-hire and firearms convictions. He was sentenced to about 18 years.

A couple of years later, after the Supreme Court decided in Johnson v. United States and Sessions v. Dimaya that crimes of violence had to be accompanied by use or threat of force, Zenon filed a § 2255 motion challenging the firearms conviction. Because of his plea agreement, the District Court denied the motion, and the 7th Circuit affirmed. Zenon filed a petition for certiorari seeking Supreme Court review.

Meanwhile, the Supreme Court ruled in United States v. Davis that a conspiracy to commit a violent crime was not itself a violent offense that could support an 18 USC § 924(c) conviction. The government flipped its position, asking the Supreme Court to vacate the 7th Circuit’s judgment because Davis made Zenon actually innocent of the 18 USC § 924(c) conviction. The mechanism is called a “GVR,” because the Supremes grant the petition for certiorari, vacate the lower court’s decision, and remand the case for further consideration, all in one order.

judgeB160229The Supreme Court refused, denying the petition last week. Justice Kavanaugh wrote in a concurrence to the denial that “[b]ecause the 7th Circuit correctly concluded that the defendant’s unconditional guilty plea precluded any argument based on the new caselaw, this Court has no appropriate legal basis to vacate the Seventh Circuit’s judgment.”

What is notable was the spirited dissent written by Justice Sotomayor. She argued that Zenon’s case

falls comfortably within this Court’s longstanding GVR practice… The Solicitor General’s considered concession that 18 USC § 1958(a) is not a “crime of violence” under the elements clause of § 924(c)(3)(A) is an intervening development that has triggered the Government’s agreement to forgo assertion of the procedural bar that proved decisive below. Consequently, there is surely a reasonable probability of a different result on remand: With the Government waiving the procedural bar, Grzegorczyk’s § 924(c) conviction and 5-year sentence should be vacated, and his § 1958(a) sentence reduced by at least 2 years and 7 months. Moreover, given the stakes for Grzegorczyk, as well as the Government’s express consent, this is a case where the marginal cost to judicial efficiency and finality from a remand should yield to solicitude for Grzegorczyk’s rights. “Further proceedings” are therefore “just under the circumstances,” 28 USC § 2106, and the Court should issue a GVR order.

“By denying certiorari rather than issuing a GVR order,” Justice Sotomayor fumed, “the Court allocates the full cost of the Government’s error to Grzegorczyk, who faces over 7½ extra years of incarceration as a result.”

innocent210504What this means, of course, is that actual innocence of a count of conviction will always yield to an oppressive appeal waiver signed in haste by a defendant who is understandably focused on the larger issues in her plea agreement rather than flitting butterfly of a provision, whose wingbeats seem inconsequential at the time but may later spawn a tornado of injustice.

In his concurrence, Kavanaugh suggested that if the government really felt that Zenon was entitled to relief from the five -year 924(c) sentence, “the Attorney General may recommend a pardon or commutation to the President, and the President may pardon the defendant or commute the sentence.”

Like that’s gonna happen…

Grzegorczyk v. United States, Case No. 21-5967, 2022 U.S. LEXIS 3273 (June 30, 2022)

– Thomas L. Root

NBC Says DOJ Failing to Assign Earned-Time Credits – Update for July 6, 2022

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NBC NEWS ACCUSES DOJ AND BOP OF BOTCHING EARNED-TIME CREDITS

screwup191028An NBC report aired last Sunday blasted the Dept of Justice for botching the award of First Step Act earned-time credits. “Thousands of nonviolent federal prisoners eligible for early release under a promising Trump-era law remain locked up nearly four years later because of inadequate implementation, confusion and bureaucratic delays, NBC quoted prisoner advocacy groups, inmates and BOP officials as saying.

Even the Biden administration’s attempt to provide clarity to the First Step Act by identifying qualified inmates and then transferring them to home confinement or another form of supervised release appears to be falling short, according to prisoner advocates familiar with the law.

“It shouldn’t be this complicated and it shouldn’t take this long,” NBC quoted Kevin Ring, president of FAMM, as saying. “Here we are, four years later, and it’s maddening.”

The BOP gave NBC data showing that as of June 18, more than 8,600 inmates have gotten sentence recalculations and are slated for earlier release due to ETCs. But the BOP’s own data identified about 66,600 inmates eligible to receive ETCs.

NBC quoted BOP officials as saying, “We have no data which suggests inmates had their release dates delayed.”

Others are not so sanguine. “We estimate that there are thousands of inmates who will not receive the full benefit — days off of their federal prison sentence — of the First Step Act simply because the agency is uncertain how to calculate these benefits,” Walter Pavlo, president of the consulting firm Prisonology LLC, and a Forbes contributor, told NBC.

funwithnumbers170511Making the logjam worse is the revision to PATTERN a month ago. While the change increase the number of points an inmate could have while still being eligible, the change quietly modified some of the point reductions inmates could earn. Completing a GED used to earn a -4, but now only earns a -2. Completing RDAP fell from a -6 to a -4. Past points for violence increased as well.

The effect of the change was to make some inmates who had been eligible for ETCs suddenly ineligible, further jamming up the calculation works. What’s worse, some inmates who had received adjusted release dates have had those dates rescinded.

NBC, Thousands of federal inmates still await early release under Trump-era First Step Act (July 3, 2022)

DOJ, First Step Annual Report (April 17, 2022)

– Thomas L. Root

Ain’t No Cure For the Summertime COVID Blues – Update for July 5, 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.

JUST WHEN YOU THOUGHT IT WAS SAFE TO COME OUT OF YOUR CELL…

FreeFood220705They’re handing out free food samples at Sam’s Club again, a sure sign that COVID is no more.

So perhaps someone can explain why the number of Bureau of Prisons inmates with COVID doubled in the last week to 444, the highest it has been since Match 2, 2022. The number of sick staffers this past week – 358 on Friday – has not been seen since March 15, 2022. A full 100 BOP facilities reported COVID cases on Thursday, a number not seen since March 9.

The troubling reports came as the BOP announced that Monday that three inmate deaths last fall and winter were actually from COVID. Inmate deaths at FCI Bennettsville last October and at both FCI Florence Camp and FCI Otisville last winter were reclassified as COVID, bringing the federal prisoner COVID death toll to at least 319.

Meanwhile, more COVID bad news: A World Health Organization official said last Monday that the more times a person becomes infected with COVID-19, the more likely the person is to contract long-term health effects from the virus.

longcovid220705“The more times you get it, the more likely you are to be unlucky and end up with long COVID — which is the thing that none of us want because it can be so serious,” David Nabarro, a WHO special envoy for COVID-19, said. “It can knock people off their stride for several months.”

Long COVID happens when someone with COVID-19 develops symptoms that linger for an extended period, according to the Centers for Disease Control and Prevention. The CDC says symptoms could last weeks or months, and even go and come back.

The New York Times reported last week that the COVID Omicron subvariants known as BA.4 and BA.5 have together become dominant among new coronavirus cases in the US. As of the week ending June 22, BA.4 made up 15.7% and BA.5 36.6% of COVID cases nationwide. In recent weeks, more than 100,000 new coronavirus cases have been reported each day on average in the United States, the Times said, “a figure that captures only a portion of the true number. Many infections go uncounted in official reports. Some scientists estimate that the current wave of cases is the second-largest of the pandemic.”

COVIDheart200720

New York magazine reported yesterday, “The newest wave of COVID infections and reinfections, fueled by more transmissible subvariants of the Omicron strain including BA.4 and BA.5, continues to grow across the U.S. As countless Americans gather over the July 4 holiday weekend, it’s entirely possible that there are more new daily infections happening in the country than at any other point in the pandemic other than the Omicron wave. And as the worrisome BA.5 subvariant rapidly rises to what will likely be global dominance, the U.S. isn’t the only country experiencing a surge.

Last week, the U.S. test positivity rate — which is now a more reliable indicator of case surges than official case counts — reached a seven-day average of over 15 percent for the first time since February 3.”

BOP, Inmate Death at FCI Bennettsville (June 27, 2022)

BOP, Inmate Death at FCI Florence’s Satellite Camp (June 27, 2022)

BOP, Inmate Death at FCI Otisville (June 27, 2022)

Business Insider, WHO official says the more times a person gets COVID-19, the more likely they are to be ‘unlucky’ and get long COVID (June 27, 2022)

The New York Times, The Omicron subvariants BA.4 and BA.5 have together become dominant in the US, the CDC estimates (June 28, 2022)

New York magazine, The BA.5 COVID Surge Is Here (July 4, 2022)

– Thomas L. Root

Doc Feelgood Feels Better in Wake of Ruan Decision – Update for June 30, 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.

WHAT’S UP, DOC?

Almost everyone has heard lurid stories about doctors running pain clinics who operate as nothing more than drug dealers. Busloads of people from out of state unload every day, lining up for five-minute “appointments” that come with prescriptions for powerful opioid painkillers, filthy “clinics” accepting only cash but having hours from 6 a.m. to midnight… The surge in opioid distribution in America is, to use an ironic term, sobering: between 2006 and 2012, 76 billion doses were sold in America, about 230 pills for every person in America.

doritos220630As USA Today once put it: 

If it sounds like [drug] companies were dispensing dangerous drugs like candy or snack chips, well, they were. In one email exchange from 2009, a former Mallinckrodt national account manager, Victor Borelli, told a customer that 1,200 bottles of oxycodone 30 milligram pills had been shipped. “Keep ’em coming!” the customer responded. “Flyin’ out of here. It’s like people are addicted to these things or something. Oh, wait, people are.” To which Borelli responded: “Just like Doritos keep eating. We’ll make more.”

But there’s always an “on the other hand,” and this issue is not an exception. Finding doctors who have crossed the line by counting the number of opioid prescriptions issued runs the risk of sweeping up physicians who practice responsibly albeit on the cutting edge of pain management. And it can cause a chilling effect, leading “good providers to fear that they will be taken as bad actors even when exercising their best judgment in caring for their patients,” according to a Supreme Court brief filed in the National Pain Advocacy Center.

No one wants to ask, “What’s up, Doc?” only to hear, “I’m afraid to say.”

bugs220701Last Monday, the Supreme Court decided in Ruan v. United States that when a criminal defendant is authorized to dispense controlled substances — such as a doctor who may lawfully prescribe medications — prosecutors can only win a conviction under 21 USC 841 by proving beyond a reasonable doubt that the defendant intended to act or knew he or she was acting in an unauthorized manner.

The Court ruled 9-0 in favor of Xiulu Ruan and Shakeel Kahn, who had argued in appealing their convictions that their trials were unfair because jurors were not required to consider whether the two physicians had “good faith” reasons to believe their numerous opioid prescriptions were medically valid.

Xiulu and Shakeel were physicians who had issued thousands of opioid prescriptions. Both were licensed to do so, but each was charged with a violation of 21 USC 841, which prohibits distribution of controlled substances “except as authorized.” The Government used the accepted standard for such dispensing cases, arguing that the specific prescriptions at issue were issued outside the bounds of the usual course of professional practice and not for a legitimate medical purpose.

quackdoc210707Section 841(a) begins with “[e]xcept as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally… dispense…” The Court ruled that “once a defendant meets the burden of producing evidence that his or her conduct was ‘authorized,’ the Government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner.” The Court ruled that the “knowingly or intentionally” requirement was necessary because a legal authorization to prescribe and distribute controlled substances “plays a ‘crucial’ role in separating innocent conduct — and, in the case of doctors, socially beneficial conduct — from wrongful conduct.” This “strong scienter requirement helps to diminish the risk of ‘overdeterrence,’ i.e., punishing acceptable and beneficial conduct that lies close to, but on the permissible side of, the criminal line.”

Writing about the decision, one physician – who is also a senior fellow at the Cato Institute – said,

There are always robust debates among clinicians regarding the proper and rational treatment of a host of conditions, from high blood pressure to diabetes to acute and chronic pain—and that patients and their clinical contexts vary—that there is no ONE RIGHT WAY to treat a wide range of medical conditions, treatment must be individualized, and clinicians must remain open to modifications and adjustments along the way. In Ruan vs. United States, the government failed to consider this.

Prescribing medications in an unusual manner, or a manner that falls outside the mainstream, might be a “standard of care” or malpractice issue, but should not be automatically considered a criminal issue. Approximately 20 percent of medications approved by the Food and Drug Administration (FDA) are legally prescribed “off‐label,” i.e., for different purposes than those for which the FDA approved them. The originators of off‐label uses fall outside the mainstream of prescribers, but they are not treated as criminals. And many off‐label uses are later approved by the FDA. This is one of the ways clinical medical science advances.

feelgood160805Even in this 9-0 opinion, there was dissension on the Court. Justice Alito, in a concurring opinion joined by Justice Thomas and partially joined by Justice Barrett, complained that the majority had made things too difficult and thus produced a muddle:

In criminal law, the distinction between the elements of an offense and an affirmative defense is well-known and important. In these cases, however, the Court recognizes a new hybrid that has some characteristics of an element and some characteristics of an affirmative defense. The consequences of this innovation are hard to foresee, but the result may well be confusion and disruption. That risk is entirely unnecessary.

In Alito’s view, the Controlled Substances Act should be interpreted like its predecessor. The Harrison Narcotics Act provided that “[a]registered physician acts ‘in the course of his professional practice’ when the physician writes prescriptions ‘in good faith,’” Alito wrote. “I would hold that this rule applies under the CSA and would therefore vacate the judgment.”

Ruan v. United States, Case No. 20-1410, 21-5261, 2022 U.S. LEXIS 3089 (June 27, 2022)

Cato Institute, Supreme Court Sets Higher Bar for Prosecuting Doctors Who Prescribe Opioids for Pain (June 27, 2022)

Reuters, U.S. Supreme Court sides with doctors challenging opioid convictions (June 27, 2022)

– Thomas L. Root

Concepcion’s Concept: Discretion on Resentencing is Presumed – Update for June 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.

DOES CONCEPCION HOLD LESSONS FOR COMPASSIONATE RELEASE?

The Supreme Court ruled on the final two criminal cases of the term on Monday (although there are six more October Term 2021 cases yet to be decided before the end of the week).

crack-coke200804Back in 2009, Carlos Concepcion pled guilty to distributing at least five grams of crack cocaine, and was sentenced to 228 months in prison. The following year, Congress passed the Fair Sentencing Act, which brought crack sentences more in line with powder cocaine sentences, down from a 100:1 ratio to an 18:1 ratio.

But the Fair Sentencing Act was not retroactive, so people sentenced before it was passed – like Carlos – could not benefit from it. Only when the First Step Act (FSA) passed in 2018 were the benefits of the Fair Sentencing Act extended to the Carlos Concepcions of the world.

Under FSA § 404, Carlos was entitled to apply to his sentencing court for resentencing at a lower level. Like most inmates – whose resources are only sufficient to pay for some telephone calls home and a few items in the commissary – Carlos could not afford a lawyer, so he filed pro se.

careeroffender22062Complicating Carlos’s case was the fact that under the advisory Sentencing Guidelines, he was deemed to be a career offender. Career offender status, a label that is easily applied to people who have hardly spent their lives as a criminal, sends a defendant’s minimum sentencing range guideline into low earth orbit. Carlos’s range was no exception. Under the statute, Carlos faced a minimum 5-year sentence, but his advisory sentencing range as a Guidelines career offender started at 17½ years.

The government argued that Carlos’s Guidelines sentencing range did not change despite the fact that the Fair Sentencing Act lowered his minimum sentence to zero, because the career offender guidelines were not based on drug amount or statutory minimum sentences. Carlos responded that he should no longer be considered a career offender because one of his prior convictions was vacated and his prison record showed evidence of rehabilitation through his participation in drug and vocational programs, spiritual growth, and a solid reentry plan.

Carlos’s sentencing judge sided with the government, holding that because Carlos’s sentencing range remained the same, Carlos could not rely on the Fair Sentencing Act for a lower sentence.

Last Monday, the Supreme Court ruled in favor of Carlos. Justice Sonia Sotomayor, writing for a 5-4 majority, said that “Federal courts historically have exercised… broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”

discretion220629Congress did nothing in the First Step Act to “contravene this well-established sentencing practice,” Sotomayor said. “Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, argues that the Concepcion ruling has an impact well outside the seemingly limited FSA Sec. 404 resentencing. “Specifically,” he wrote, “I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.

Berman noted:

There is a deep circuit split about whether non-retroactive changes in sentencing law may constitute “extraordinary and compelling reasons” for compassionate release. Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute ‘extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise. And yet, this language from the Supreme Court’s opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained…

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution….

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much…. Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

Berman argues that the Supreme Court’s language about a sentencing judge’s broad discretion “when considering a sentence modification is directly relevant to federal judges’ consideration of so-called compassionate release motions.”

compassion160124There is nothing in 18 USC § 3582(c)(1)(A)(i) (the statute on sentence reductions, generally if inaccurately known as “compassionate releases”) that in any way limits a judge in what he or she may consider in fashioning a lower sentence, or for that matter, in deciding whether to impose a lower sentence at all. That should be game, set and match for the issue of the limits of a court’s discretion on deciding a compassionate release motion.

One interesting twist: the Sentencing Commission will soon be reconstituted, and it seems clear that the new commissioners consider rewriting U.S.S.G. § 1B1.13 – the Guidelines policy statement on compassionate releases – as job one. If a rewritten § 1B1.13 limits a sentencing court’s discretion in granting or denying a compassionate release motion, would such a limitation be one “set forth by Congress in a statute or by the Constitution?” Sentencing Guidelines must be submitted to Congress, but go into effect unless the Senate otherwise directs. And the compassionate release statute requires a sentencing judge to ensure that any sentence reduction “is consistent with applicable policy statements issued by the Sentencing Commission.”

But that’s a question for another time (specifically, after a new § 1B1.13 goes into effect, which probably will not be before November 2023. For now, movants for compassionate release would do well to apply Prof. Berman’s broad interpretation of Concepcion’s holding.

Concepcion v. United States, Case No 20-1650, 2022 U.S. LEXIS 3070 (June 27, 2022)

ABA Journal, In unusual lineup, SCOTUS rules for pro se prisoner who sought lower sentence under First Step Act (June 27, 2022)

Sentencing Law and Policy, SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors (June 27, 2022)

– Thomas L. Root