Batting Cleanup for LISA… – Update for June 17, 2022

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wahoo220617We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, we’re cleaning up the week with some odds and ends left over from the week before…

Judiciary Committee Grills Sentencing Committee Nominees: President Biden’s seven nominees to the U.S. Sentencing Commission promised at a Senate hearing last week to prioritize implementing the First Step Act by amending the Guidelines, something the Commission had been unable to do since losing its quorum just as the 2018 law passed.

U.S. District Judge Carlton Reeves (S.D. Miss), nominated to be chairman of the USSC, told the Judiciary Committee that the Commission would also address what he called “troubling” divisions that emerged among courts on sentencing issues during the years it lacked a quorum.

Four Democrat and three Republican picks have been nominated to join the seven-member commission.

Senior U.S. District Judge Charles Breyer (N.D. Cal.), the lone remaining member of USSC, has complained that the Commission’s inability to update its compassionate release policy (USSC § 1B1.13) in light of First Step has resulted in inconsistent decisions across the nation on compassionate release amid the COVID-19 pandemic.

“Today, we take an important step to remedy that problem,” said Judiciary Committee chairman Sen Richard Durbin (D-IL).

Sen Marsha Blackburn (R-TN) jumped on one Democratic nominee, former U.S. District Judge John Gleeson. Gleeson, one of the most thoughtful and creative sentencing judges during his time on the E.D.N.Y. bench, has been a critic of mandatory minimum drug sentences.

“How can you possibly say that more lenient sentencing and reduced penalties for convicted criminals is the answer to our crime problems?” Blackburn complained. Gleeson, now a partner at a Wall Street law firm, responded that as a judge he tried only to show the impact mandatory sentences have on “the individualized sentencing that our system contemplates.”

pissfire220617Meanwhile, former federal defender Laura Mate, a director of the Federal Defenders’ Sentencing Resource Counsel Project, refused demands by Sen Josh Hawley (R-MO) to renounce a detailed 61-page letter to the Sentencing Commission she had co-signed in 2013. The letter had criticized mandatory minimums, especially for some child pornography offenses, with a detailed, well-reasoned argument.

Mate was pilloried by at least one YouTuber for politely dodging Hawley’s question, but given what I know of the good Senator from the Show-Me State, I would resist agreeing with him that the sun rises in the east, because he would end our exchange accusing me of causing dawn to arrive too early.

Republican USSC nominees include Claire McCusker Murray, a Justice Department official during the Trump era; Candice Wong, a federal prosecutor in Washington, D.C., and U.S. District Judge Claria Horn Boom of Kentucky.

The hearing suggests that the Senate will act soon on restoring a functional Sentencing Commission. However, as Ohio State University law professor Doug Berman observed in his Sentencing Law and Policy blog, “it is still unclear exactly when there will be a committee vote and then a full Senate vote on these nominees. I am hopeful these votes might take place this summer, but I should know better than to make any predictions about the pace of work by Congress.”

Senate Judiciary Committee, Hearing (June 8, 2022)

Reuters, Biden’s sentencing panel noms vow to implement criminal justice reform law (June 8, 2022)

Sentencing Law and Policy, Senate conducts hearing for nominees for US Sentencing Commission (June 8, 2022)

Federal Defenders, Letter to Sentencing Commission (July 15, 2013)

rockingchair220617Last Week Makes Mike Long for Retirement:  BOP Director Carvajal is probably giddy at the prospect that his replacement is finally waiting in the wings. 

Besides the USP Thomson investigation being announced last week, the BOP suffered some embarrassing press last week:

•  A Miami TV station reported on a CO’s claim that drones were being used to smuggle contraband into FDC Miami;

•  A Colorado paper reported that the BOP was paying $300,000 in damages to an ADX Florence inmate with Type 1 diabetes who alleged in a lawsuit that he had been denied adequate amounts of insulin;

•  A San Francisco area TV station reported that a former FCI Dublin inmate – who early on told BOP authorities about what has turned into a major sex abuse scandal featuring the arrest of a former warden and four other staffers – says she was punished in retaliation for calling out the staff abuse. “I will never tell another inmate that they should go to report anything to anyone higher up,” the former prisoner told KTVU. “Because all that’s going to happen is it’s going to make their life worse.”; and

•  A former correctional officer at the Federal Medical Center in Lexington, Kentucky, was sentenced to more than 11 years after pleading guilty to sexual abuse of inmates.

Finally, in February, Carvajal told a Congressional committee that the “common criticism” that the BOP is understaffed was a “narrative [that] is routinely misrepresented without reference to the factual data.” Two weeks ago, he told BOP staff in an agency-wide memo that “staffing levels are currently trending downward nationwide.”

Last week, Government Executive reported that the declines have happened in the last four months and that the employees who have quit cite “lack of training and lack of connection to the institution as reasons for their leaving the bureau within the first few years of service.”

Mike must be thinking that the old rocking chair is looking pretty good right now.

WQAD-TV, Justice Department Inspector General launches investigation into USP Thomson (June 9, 2022)

WTVJ, Inmates Attempted to Smuggle Contraband Using Drones, Correctional Officer Says (June 8, 2022)

Colorado Sun, Bureau of Prisons to pay $300,000 to settle lawsuit after diabetic prisoner was allegedly deprived of insulin at Supermax facility (June 7, 2022)

KTVU, Woman who reported Dublin prison sexual abuse claims she was target of retaliation (June 10, 2022)

Government Executive, Federal Prisons Are Losing Staff. The Bureau’s Director Would Like to Fix That By October (June 6, 2022)

– Thomas L. Root

ETC FUBAR at BOP, As New Director Search Finally Over – Update for June 16, 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.

BOP: DON’T CALL US, WE’LL CALL YOU ON EARNED TIME CREDIT CALCULATION

If there is a common refrain in emails coming into this Newsletter in the past several months, it is that inmates are not getting their earned-time-credit calculations from their Unit Teams.

don'tcallus220616A recap: The First Step Act authorized the award of credits to inmates who successfully complete programs that have been found to reduce recidivism. The acronym-crazy government calls them “EBRRs,” that is, “evidence-based recidivism reduction” programs. Inmates could receive “earned time credits” (ETCs) that will reduce their prison time up to a year, grant them more halfway house or home  confinement, and even get them more phone time and commissary.

(Confusingly, the government called ETCs “FTCs” for awhile – “federal time credits” – but seems to have settled on the preferred terminology now).

Inmates are classified using a system called PATTERN according to their likelihood of recidivism.  As they complete programs, age, and behave, their PATTERN score decreases, increasing the number of ETCs they may receive.

So all is roses in the BOP. Inmates are happily earning ETCs, the staff is contentedly helping prisoners forsake their prior evil ways…

FUBAR220616Right. In fact, implementation of ETCs (and awarding time off) is becime a FUBAR.

Last week, Walter Pavlo reported in Forbes on an internal BOP memo acknowledging the frustration:

Institutions are likely getting a lot of calls from outside family members and/or questions from the inmates themselves. We ask that you refrain from referring inmates or their family members to the DSCC or Central Office. As we move toward a fully automated auto-calculation process for the calculating and awarding of FTCs, neither the DSCC nor the Corrections Programs Branch are directly involved in the process.

Forbes said the memo directed institutions to give inmates and their family members a “canned response” asking “for their patience” during the implementation of an automated credit calculation system:

While all eligible inmates are able to earn credits, the Agency is prioritizing those inmates who are within 24 months of their Statutory Release date and eligible to both earn and apply Federal Time Credits. The Agency is in the final stages of development and testing of an auto-calculation app, and once finalized all eligible inmates will have their records updated and the Federal Time applied consistently with the Federal Rules language.

Late breaking news: The BOP has finally found someone who will admit to being considered for the director’s slot, replacing Michael Carvajal (whom Sen. Richard Durbin [D-IL] wants to usher into retirement as quickly as possible). 

Could MIke Carvajal finally be leaving the building?
Could MIke Carvajal finally be leaving the building?

The Oregon Capital Chronicle reported yesterday that Colette Peters, director of Oregon’s prison system, confirmed to the paper that she is a finalist for the BOP Director’s job.

She has been director of the Oregon Department of Corrections since 2012, where she is in charge of  4,400 employees and 12,124 prisoners.

As director of the Oregon prison system, she changed the agency’s reference to “inmates.” Oregon’s prisoners became “adults in custody.”

Forbes, As Biden Touts Action On First Step Act, Federal Prisoners Await Action From Bureau Of Prisons (June 4, 2022)

Oregon Capital Chronicle, Oregon’s prison director a finalist to lead federal prison system (June 15, 2022)

– Thomas L. Root

Dept of Justice Takes Hard Look at USP Thomson – Update for June 15, 2022

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

INSPECTOR GENERAL TO PROBE USP THOMSON

Last Thursday, the Dept. of Justice Inspector General launched an investigation into USP Thomson, based on a demand letter from Sens Richard Durbin and Tammy Duckworth, and Rep Cheri Bustos, all of whom are Illinois Democrats.

The demand letter had noted news accounts about Thomson that alleged Bureau of Prisons staff stoked tensions between cellmates to cause inmate-on-inmate attacks, encouraged assaults against sex offenders and informants, employed abusive shackling of inmates, and the highest use of pepper spray in the agency.

The letter said, “If these reports prove accurate, they describe conduct that would almost certainly contravene numerous BOP policies, as well as infringing the civil rights of individuals in BOP custody and possibly violating federal criminal statutes.”

thomson220615Thomson’s AFGE Local 4070 President Jon Zumkehr said in a released statement, “We fully support the investigation into the allegations into USP Thomson and we have also invited Sen. Durbin and Sen. Duckworth to visit USP Thomson.” Two years ago, the union complained that a staff shortage at Thomson was resulting in unsafe working conditions as the BOP used augmentation – assigning non-custody workers like nurses, psychologists and cooks to fill in as correctional officers – to address the problem.

In a speech on the Senate floor last Thursday, Durbin promised a Judiciary Committee hearing in the next few weeks on BOP oversight, including the continued overuse of solitary confinement and restricted housing. “We need answers from the Biden Administration on the failure to reduce the use of restricted housing,” Durbin said, “and we will discuss what BOP must do to address the staffing crisis that has contributed to this disastrous situation.”

Durbin also renewed his call for the immediate replacement of BOP Director Michael Carvajal, who announced his retirement months ago but is staying on until a replacement is named. Former Ohio Dept of Rehabilitation and Corrections chief Gary Mohr was rumored several weeks ago to be in line for the top BOP spot, but he denied it at the time. Nothing more has been said since then.

WQAD-TV, Justice Department Inspector General launches investigation into USP Thomson (June 9, 2022)

Press Release, Durbin Slams BOP Mismanagement, Allegations Of Abuse At USP Thomson (June 9, 2022)

– Thomas L. Root

Could EQUAL Act Be Rolled Into Pot Reform? – Update for June 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.

IS EQUAL ACT MERGING WITH MARIJUANA REFORM?

marijuana160818An unconfirmed report published yesterday suggests that the EQUAL Act may be merged into the Senate’s marijuana reform package.

Marijuana Moment reported that

Interestingly enough, a non-marijuana item might also be part of the deal in the works: the EQUAL Act to end the federal sentencing disparity between crack and powder cocaine, which experts say has exacerbated racial disparities in the criminal justice system. That legislation has passed the House in standalone form and has substantial bipartisan support in the Senate.

The proposal (still in preliminary talks) focus on putting together a wide-ranging package of incremental marijuana proposals that House and Senate lawmakers believe could be enacted into law this year.  The outline includes banking and criminal justice reforms on marijuana, but also “there are also talks about attaching language from other standalone bills dealing with issues such as veterans’ medical cannabis access, research expansion, marijuana industry access to Small Business Administration (SBA) programs and broader drug sentencing reform,” Marijuana Moment reported

Last week, the Washington Times reported on an EQUAL Act rally at the Capitol, noting that EQUAL “passed the House 361-66, but advocates fear the bill will get sidetracked in a busy summer session before senators head home to hit the campaign trail in the fall.”

crackpowder160606Reps. Ed Perlmutter (D-CO) and Dave Joyce (R-OH) publicly disclosed at a conference last week that discussions are underway about crafting a bipartisan cannabis package that includes expungement. “These talks are very serious,” Marijuana Moment quoted a criminal justice reform source as saying. “I would say this is one of the most serious bipartisan, bicameral conversations that we’ve seen occur.”

Marijuana Moment, New Details On Congressional Marijuana Omnibus Bill Emerge As Lawmakers Work For 60 Senate Votes (June 13)

Washington Times, Equal Act backers rally for Senate action on new drug-sentencing norms (June 8, 2022)

Marijuana Moment, New Details On Congressional Marijuana Omnibus Bill Emerge As Lawmakers Work For 60 Senate Votes (June 10, 2022)

– Thomas L. Root

Supreme Court Bloodies Bivens – Update for June 13, 2022

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

BIVENS IS BARELY ALIVE AFTER SUPREME COURT MAULING

Rejecting 4th Amendment excessive force and 1st Amendment retaliation damages claims against a Border Patrol agent, the Supreme Court last week brought the venerable Bivens claim to the brink of extinction.

policeraid170824Federal law (42 USC § 1983) permits private citizens to sue state and local officials for violation of constitutional rights. But Section 1983 does not apply to federal officials and employees, and Congress has never passed a law similar to Section 1983 authorizing such actions against the feds.

However, back in 1971, the Supreme Court held that the right to file such an action should be presumed from the constitution, letting a 4th Amendment unlawful search and seizure claim go forward under “general principles of federal jurisdiction” in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.

Since Bivens, SCOTUS has been trying to limit the holding, in fact turning down every Bivens claim since 1980. Last week, the Court adopted a test that just about assures that Bivens will not be usable for any claim other than unlawful search and seizure and 8th Amendment claims.

Last week’s case arose when a Border Patrol agent allegedly entered the driveways at Smuggler’s Inn, a bed-and-breakfast sort of place in Blaine, Washington. The Inn’s backyard property line is the Canadian border, with nothing but some warning signs to stop people from coming and going.  According to the decision, the facility is both Spartan and pricey, appealing only to a clientele that wants to sneak north or sneak south.

Because of that, the Border Patrol has a special love for the place. The Egbert case arose when a Border Patrol agent followed the Inn’s van into the driveway, suspecting the passenger – a man who had just arrived from Turkey – of immigration shenanigans. When the Inn’s owner told the officer to leave, the border cop allegedly roughed him up. When the owner complained about the agent’s conduct, the Border Patrol allegedly began a campaign of harassment.

The Inn’s owner sued under Bivens for alleged 4th Amendment excessive force and 1st Amendment retaliation violations. But last week, the Supreme Court stopped him in his tracks.

smugglersinn220613

“[R]ather than dispense with Bivens altogether,” Justice Clarence Thomas wrote on behalf of the majority, “we have emphasized that recognizing a cause of action under Bivens is ‘a disfavored judicial activity.’” Yet, while it kept Bivens alive, the Court make it clear that Bivens remains on thin ice, warning “that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.”

Writing for a 5-4 majority, Thomas applied the two-step inquiry established in prior Bivens cases — whether the case involves an “extension” of Bivens into a “new context” that is “different in a meaningful way from previous Bivens cases decided by this Court,” and whether “special factors… counsel hesitation about granting the extension.”

For the “special-factors” analysis, the Court asks broadly whether judicial intrusion into a “given field” is inappropriate. Here, Thomas wrote, the question was whether it was appropriate to imply a Bivens action should apply to Border Patrol agents generally. Because border protection implicates national security, the Court ruled, it was more appropriate to leave the authorization of any remedy to Congress.

The opinion thus reduces the two-step analysis “into a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.”

paperwork171019Here, the Court said, it also matters that a citizen has an adequate alternative remedy in the Border Patrol’s internal grievance process. This is despite the fact that that process does not entitle a complainant to participate in the proceeding, is not subject to judicial review, and does not provide a money damages remedy to the complainant. But because Bivens “is concerned solely with deterring the unconstitutional acts of government officers” with the goal of preventing constitutional violations, the Court said, that’s enough.

Bivens cannot be used for 1st Amendment retaliation claims under any circumstances, the Court said. Allowing such “claims imposes costs and burdens on federal officers affecting how they perform their duties; Congress should decide whether the public interest is served by allowing damages and imposing those costs.”

The good news, if there is any, is that the Court acknowledged that a Bivens action still exists “for a federal prisoner’s inadequate-care claim under the 8th Amendment.” But it’s pretty clear for federal prisoners that, except for that “deliberate indifference” claim, Bivens is dead.

Egbert v. Boule, Case No. 21-147, 596 U.S. —, 2022 U.S. LEXIS 2829 (June 8, 2022)

SCOTUSBlog, Court constricts, even if it does not quite eliminate, damages actions under Bivens (June 8, 2022)

Interrogating Justice, SCOTUS Says Doing Nothing Deters Fourth Amendment Violations (June 9, 2022)

– Thomas L. Root

Feds Descend on USP Thomson – Update for June 10, 2022

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DOJ INSPECTOR GENERAL LAUNCHES USP THOMSON INVESTIGATION

A week ago, three members of Congress called for an immediate federal investigation into violence and abuse at  USP Thomson, prompted by a Marshall Project/NPR report from two days before.

thomson220610Yesterday, the Dept. of Justice Inspector General launched an investigation into Thomson, based on the news report’s details of inmate deaths and alleged Bureau of Prisons staff abuses.

Sens. Richard Durbin and Tammy Duckworth, and Rep Cheri Bustos (all D-IL), wrote in last week’s letter to DOJ Inspector General Michael Horowitz that it was “imperative” he look into allegations that

• Staff purposely stoked tensions between cellmates and intentionally paired men whom they knew would attack each other;

• Staff encouraged assaults against sex offenders and informants and falsely told inmates that a particular person was a sex offender, resulting in repeated physical and sexual assaults;

• Abusive shackling leaving scars known as “the Thomson tattoo,” including use of a room known as “the dungeon,” where men would lie shackled to a bed for hours without food or water;

• abusive behavior towards incarcerated persons after the SMU was transferred to USP Thomson;

• The highest rate of pepper-spray usage in the BOP; and

• Staff laughing and joking at a Jewish inmate as he lay dying in a hospital following an assault after staff placed him in a recreation cage with white supremacists.

prisonfight220211The letter said, “If these reports prove accurate, they describe conduct that would almost certainly contravene numerous BOP policies, as well as infringing the civil rights of individuals in BOP custody and possibly violating federal criminal statutes.”

Yesterday, AFGE Local 4070 President Jon Zumkehr said in a released statement, “We fully support the investigation into the allegations into USP Thomson and we have also invited Sen. Durbin and Sen. Duckworth to visit USP Thomson.” No doubt Thomson staff also enthusiastically anticipates root canal procedures performed without anesthetic.

Back in May 2020, the union complained that a staff shortage at Thomson was resulting in unsafe working conditions as the BOP used augmentation – assigning non-custody workers like nurses, psychologists and cooks to fill in as correctional officers – to address the employee shortage. WQAD-TV reported that over 2,000 overtime shifts were being authorized every month just to keep up with daily prison functions.

In a speech on the Senate floor yesterday, Durbin – who is chairman of the Senate Judiciary Committee – promised a Committee hearing in the next few weeks on BOP oversight, including the continued overuse of solitary confinement and restricted housing in federal prison facilities such as USP Thomson. Currently, he said, about 7.8% of BOP inmates are housed in a form of restricted housing.

'Enjoy retirement,' Durbin tells Carvajal, 'preferably sooner rather than later.'
‘Enjoy retirement,’ Durbin tells Carvajal, ‘preferably sooner rather than later.’

“We need answers from the Biden Administration on the failure to reduce the use of restricted housing,” Durbin said, “and we will discuss what BOP must do to address the staffing crisis that has contributed to this disastrous situation.”

Durbin also renewed his call for the immediate replacement of BOP Director Michael Carvajal, who announced his retirement months ago but is staying on until a replacement is named.

WQAD-TV, Justice Department Inspector General launches investigation into USP Thomson (June 9, 2022)

Press release, Durbin Slams BOP Mismanagement, Allegations Of Abuse At USP Thomson (June 9, 2022)

Sen. Durbin, Letter to DOJ Inspector General (June 1, 2022)

NPR, Lawmakers call for probe into deadly federal prison (June 2, 2022)

– Thomas L. Root

Supremes Burning Midnight Oil To Finish Term – Update for June 8, 2022

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SUPREME COURT FACES HISTORIC BACKLOG IN FINAL MONTH OF TERM

The Supreme Court – waiting until the bitter end to do the largest share of its work in more than 70 years – has scheduled a rare second opinion day for today.

scotus161130At 10 am, the Court will issue one or more opinions. It still has a lot to choose from.

The court is scheduled to hand down 30 more opinions, 48% of its expected total in argued cases, as its 2021-22 term ends in slightly more than three weeks. While most people are awaiting rulings that could hold that abortion is not a constitutional right but carrying a concealed gun is, there are five decisions of particular interest to federal inmates and defendants:

• Concepcion v. United States, Case No. 20-1650. Issue: Whether, when deciding if it should “impose a reduced sentence” under Section 404(b) of the First Step Act (Fair Sentencing Act retroactivity), a district court must – or even may – consider intervening legal and factual developments.

• Ruan v. United States, Case No. 20-1410. Issue: Whether a physician charged with prescribing controlled substances outside the usual course of professional practice may be convicted under 21 USC § 841(a)(1) without regard to whether, in good faith, he or she “reasonably believed” or “subjectively intended” that the prescriptions fall within that course of professional practice.

• United States v. Taylor, Case No. 20-1459: Whether 18 USC § 924(c)’s “crime of violence” definition excludes attempted Hobbs Act robbery (which could end up excluding all attempted crimes of violence from being predicates for § 924(c) offenses).

• Egbert v. Boule, Case No. 21-147: Whether one can sue a federal officer under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims.

• Kemp v. United States, Case No. 21-5726: Whether F.R.Civ.P. 60(b)(1) authorizes relief based on a district court’s error of law.

scotussplit190627The Supreme Court typically announces opinions on Monday, but as June progresses, more second opinion days like today are likely.

Supreme Court Faces Historic Case Backlog as Fractious Term Comes to an End (June 1)

The New York Times, We preview the five biggest rulings expected from the Supreme Court in the next few weeks (June 8, 2022)

– Thomas L. Root

Earned Time Credits Just Got Easier to Spend – Update for June 7, 2022

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PATTERN CHANGES MAKE MANY MORE ELIGIBLE FOR CREDITS

In April, the Dept of Justice told Congress that it would roll out a new version of the PATTERN recidivism risk measurement system in May, one that contained adjustments it said would improve accuracy and possibly benefit up to 33,000 federal prisoners.

Nothing has been publicly announced since, although a lot of inmates have reported that their categories were changing while their PATTERN point scores were not. A hard-to-find report by the Attorney General I obtained last week confirmed that while no scoring categories have changed in the revised PATTERN system – known as PATTERN 1.3 – the cut points did.

PATTERNsheet220131Cut points are crucial, being the level at which an inmate’s recidivism rating changes from “minimum” to “low,” from “low” to “medium,” and from “medium” to “high.” Because the First Step Act generally does not let anyone with a “medium” or higher risk level cash in earned time credits (ETCs), a prisoner’s level can make a difference of up to a year on sentence length, and enhanced home confinement or halfway house.

It is now harder for a male to be a PATTERN “minimum” – the former cut point of “8 or less” fell to a new cut point of “5 or less” – although the female “minimum” cut point rose from “5 or less” to “7 or less.” But the big change is from “low” to “medium.”

The former male cut point between “low” and “medium” rose from 30 to 39. The women’s “low to medium” cut point jumped from 31 to 38. The former “medium to high” cut point went from 44 to 55 for males and 31 to 53 for females.

Under the old PATTERN, 40% of males were “minimum” or “low.” Under PATTERN 1.3, that number jumped to 68%. Female “minimums” and “lows” increased from 78% to 86%. The PATTERN 1.3 changes made 33,070 more inmates eligible to use their ETCs.

cutpoints220607PATTERN is still criticized by some commentators for being insufficiently dynamic, meaning that too much of what goes into scores – like age and criminal history – cannot be changed despite a prisoner’s best efforts. The DOJ report asserted that “PATTERN 1.3 displays dynamic validity… Across the four gender/recidivism tools examined, approximately 25 to 35% of individuals had a lower [risk] designation during their last assessment compared to their first, and between 3 and 5% had a higher risk designation.” The DOJ position suggests that category changes in future PATTERN amendments are unlikely.

PATTERN 1.3 is a welcome change, but real problems with the First Step Act earned time credits remain. Writing in Forbes last week, Walter Pavlo reported that “according to insiders at the BOP, prisoners and former executive staff with connections to the current state of the BOP as it relates to the FSA, there is ‘mass confusion at every institution,”’ and that the Designation and Sentence Computation Center, the entity ultimately responsible for calculating sentence duration, is backed up and the programming is not in place for FSA. The result is that thousands of prisoners are incarcerated beyond their legal release date.”

bureaucrat200421Pavlo wrote that “BOP staff who have no official program statement to work from are spreading misinformation to prisoners. Many prisoners are being told that they do not qualify for FSA credits for a variety of reasons, [and] many those reasons are just not true. As a result, prisoners are not only confused but have no place to go to get clarification. Now, some are going to Court.”

DOJ, First Step Act Annual Report – April 2022

Forbes, First Step Act Inaction Keeps Federal Inmates In Prison (May 30, 2022)

– Thomas L. Root

Criminal Justice Reform Bottled Up in Fractious Senate – Update for June 6, 2022

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SENATE CRITICIZED FOR INACT… – SQUIRREL, SQUIRREL!

Readers all seem to wonder why the EQUAL Act (S.79), a bill that would finally equalize punishment for crack cocaine and powder cocaine offenses, could pass the House of Representatives with an 85% vote last year and have over 60% support in the Senate (and support of the leadership), but still be sitting around with no vote in sight.

grid160411After the House passed EQUAL last fall, Ohio State University law professor Doug Berman wondered in his Sentencing Law and Policy blog whether the Senate would “move quickly to finally right a 35-year wrong?”

Nope. In a commentary last week, FAMM President Kevin Ring explained why thousands of families are still waiting for the Senate to act:

The Senate is broken. And the EQUAL Act is perhaps the best and most infuriating example of just how broken the Senate has become — it can’t even pass a bill with broad, bipartisan support and fix a 36-year-old mistake…

So what’s the problem? Senators may have to vote on amendments that get offered to the bill and they are scared. They fear that members in the small minority who oppose the bill will offer amendments that sound good, yet are bad policy, known as “poison pills.”

This fear has always existed, especially in election years, but in recent years it has grown to the point of creating paralysis. In the past, supporters of important reforms would stand together in opposition to obviously ill-intentioned amendments. But senators today obsess over voting against poison pills they think will hurt their re-election chances, and leaders of the Senate’s majority party fear these votes could lose their side’s control of the chamber. The Democrats control the Senate now, but this has been the practice of both parties in recent years.

The result is an unwillingness to move even popular reforms like the EQUAL Act. Filibuster or not, the Senate is broken.

Add to that explanation another one. Just like I can easily distract my dog by shouting, “Squirrel, squirrel!” and pointing in some direction, the Senate is easily distracted. The Ukraine crisis needs a big weapons bill, a mass shooting needs a debate on gun control, a Supreme Court decision leak needs a spate of bills on abortion… every crisis in the headlines disrupts Senate business.

squirrel220606A bill to fund the fight against the next COVID wave, battles over gun control and abortion (sure to be fired up with Supreme Court decisions on both due this month), and the fact that a third of senators are up for re-election, all make focus on EQUAL – which should be an easy lift – difficult.

Berman said last week, “I do not think this commentary signals that the EQUAL Act cannot still get passed, but it reinforces my fear that the climb is far more uphill than it seemingly should be.”

Of all the criminal justice reform measures before Congress – including the First Step Implementation Act (S. 1014), the Safer Detention Act (S. 312), the Marijuana Opportunity Reinvestment and Expungement Act (H.R. 3617) – EQUAL is the one closest to the finish line. If EQUAL can’t get to a final vote in the Senate, it’s hard to imagine any other measure getting to the President’s desk, either.

Medium, The Senate’s Unwillingness to Pass the EQUAL Act Highlights Its Dysfunction (June 2, 2022)

Sentencing Law and Policy, Hoping it is not yet time to give up on passage of the EQUAL Act (June 2, 2022)

PBS, Congressional stalemate makes a quick compromise on COVID funding unlikely (June 1, 2022)

– Thomas L. Root

BOP: Not a ‘Common Jailor’ But A Pretty Indifferent One – Update for June 3, 2022

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WHERE HAVE WE HEARD THIS ONE BEFORE?

Complaints about the BOP healthcare system are as common as kvetching about the food it serves. There may be a reason for that.

chickie220603Vincent “Chickie” DeMartino, serving the final 30 months of a 300-month sentence for an attempted mob hit, sought compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) because of his deteriorating health – in particular, complications with his right eye – and because of the BOP’s “cavalier attitude” in addressing his worsening medical problems.

Vince argued that his poor health and the BOP’s refusal to do anything about it constituted the “extraordinary and compelling” reasons required by the statute for a reduction of his sentence to time served.

Last week, the United States District Court for the Eastern District of New York agreed. As the Daily News colorfully put it

A Brooklyn judge sprang a violent mobster from prison because he said the federal Bureau of Prisons did a lousy job taking care of the wiseguy’s medical problems.

Federal Court Judge Raymond Dearie issued a scathing ruling Thursday, saying the feds weren’t competently treating made man Vincent “Chickie” DeMartino’s maladies. The goodfella had more than two years left of his 25-year sentence for an attempted hit on a fellow Colombo family member.

The Court found that Vince suffered from high blood pressure which puts him at severe risk of stroke and numerous ophthalmologic issues. Vince said he was essentially blind in his right eye and had 20/400 vision overall, which made him legally blind.

healthcare220224What made his condition “all the more extraordinary and compelling,” the Court held, was “the BOP’s lack of responsiveness and candor with respect to his medical conditions.” Despite the BOP being aware of the condition, the District Court said, “the record reflects a consistent pattern on the part of the BOP of downplaying Mr. DeMartino’s conditions and delaying treatment. Despite the severity of his ocular conditions, it has been a herculean task for Mr. DeMartino to see an ophthalmologist.”

A month ago, the Court told the parties that Vince required “immediate appropriate care.” The government promised the Court that Vince would see an outside specialist right away. That of course did not happen. Vince’s prior visits to the eye doc had been canceled, according to the BOP, because the facility Health Administrator asserted that the “retina specialist does not need to see the defendant again unless he is having further complications.”

This statement, charitably put, lacked the kind of candor that the government would have demanded from Vince, were the tables turned.. The Court found the statement to be “misleading, as the Health Administrator’s note omitted reference to the ophthalmologist’s recommendation that Mr. DeMartino undergo pars plana vitrectomy surgery.”

When the Court ordered the Government and BOP to provide clarification about Vince’s need for surgery from the same ophthalmologist who had recommended surgery, the Government pulled the old “bait-and-switch.” It provided a memorandum from an optometrist – not an ophthalmologist and definitely not the one who had recommended the surgery – to support the appalling lack of care. The BOP optometrist said Vince’s surgery was unnecessary, but then qualified his opinion by admitting that he could not “directly determine the need, or lack thereof, for surgery” and would need to “defer questioning related to a need for surgery and/or the urgency of surgery to an ophthalmologic surgeon.”

That’s sort of like saying “it’s definitely not going to rain tomorrow, but I have not seen a weather forecast and even if I had, I’m not a meteorologist and I really have no idea whether what I just said is right or not.”

healthbareminimum220603“All told,” the court ruled, “this record leaves the Court with the impression that the BOP has undertaken the bare minimum of care for Mr. DeMartino, limiting its efforts to ensuring that he does not require emergency surgery, but minimizing the fact that his vision is failing and refusing to implement any meaningful plan to monitor or treat the conditions in the longer term… The BOP is not a common jailor. Theirs is a far more challenging and vital responsibility. Human beings are entrusted to their care for decades on end. There is no excuse for inaction or dissembling and, in this Court’s view, no alternative to immediate release.”

Order (ECF 276), United States v. DeMartino, Case No 1:03cr265 (EDNY, May 26, 2022)

– Thomas L. Root