EQUAL Act But Unequal Reform? – Update for April 21, 2022

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

EQUAL ACT MAY BE ALL WE GET

Congress was recessed all last week and for part of this one, so no legislative progress was made on the EQUAL Act (S.79), the MORE Act (H.R. 3617), or – for that matter – anything else. But nothing can stop politicians from talking, even during vacations.

crack-coke200804The good news is that all of the talk about EQUAL – which makes crack sentences equal to cocaine powder sentences – suggests it has the support for passage. The only question is when Senate Majority Leader Chuck Schumer (D-NY) will bring it up for a vote. While the Judiciary Committee held a hearing on the crack-cocaine disparity bill last year, it has yet to schedule a markup.

The bad news is everything else. Politico ran an analysis last week reporting that Sens Richard Durbin (D-IL) and Charles Grassley (R-IA), the top Democrat and Republican on the Senate Judiciary Committee, are still talking about a merger of bills such as the First Step Implementation Act (S.1014), the Smarter Sentencing Act (S.1013), and the COVID-19 Safer Detention Act (S. 312) into a single narrow follow-up bill amending the First Step Act, Durbin and Grassley are calling a Second Step Act. 

“But both senior senators acknowledge it’s not a glide path forward,” Politico said, “particularly given the GOP messaging on rising crime ahead of the 2022 midterms — a focus that was on full display during Ketanji Brown Jackson’s Supreme Court hearings last month.”

Jackson was blasted last month by a few Republican senators for being too soft on sentencing child sex abuse and drug offenders. “One of the most important consequences of these confirmation hearings is there are district judges across the country who may have ambitions for elevations,” Sen. Ted Cruz (R-TX), who led the charge against Judge Jackson, told CNN. Any judges looking for future promotions “are going to think twice about letting violent criminals go or giving them a slap on the wrist, rather than following the law and imposing serious sentences for those who have committed serious crimes.”

snake220421[Editor’s note: While it is correct that Cruz has been described by one conservative columnist as being “like a serpent covered in Vaseline” who “treats the American people like two-bit suckers in 10-gallon hats,”  some maintain that there are good snakes in Texas (but Sen. Cruz is not on their list).]

Far from the only effect, the Jackson hearings have also “dampened the interest in doing what we call the Second Step Act, but we’re still seeing what can be worked out,” Grassley said in a brief interview. He added that if Democrats agree to certain provisions related to law enforcement, “that might make it possible to get something done.”

Meanwhile, Durbin said he’s concerned about a Second Step Act’s prospects for passage, ‘particularly given Republican accusations during Jackson’s confirmation hearings that the justice-in-waiting was soft on crime. The Judiciary chair ranked criminal justice as high on his list of priorities, though he said legislation addressing crime and law enforcement “may be just as challenging as immigration” — a famously tough area of bipartisan compromise on Capitol Hill.

Durbin and Grassley both think a Second Step Act is needed to implement sentencing changes in the First Step law by making them retroactive, midterms are coming up in a little more than 6 months and “campaign-season politics surrounding criminal justice reform threaten broader GOP support. While some lonely voices are calling for passage of such a bill, with Democrats in control of the White House and both houses of Congress, expect a cacophony of Republicans claims that Democrats are to blame for rising crime rates. That should make sentencing changes that much harder, Politico said.

Senate aides on both sides of the aisle warn that EQUAL could still face a challenging path to final passage, including a potentially arduous debate over amendments. Republicans who oppose the bill would almost certainly want to force vulnerable Senate Democrats to take tough amendment votes amid reports of rising violent crime in major cities and the approaching November election. Even Grassley, who is not a co-sponsor but is unapologetically pro-reform, has outlined concerns about whether EQUAL could garner enough Republican support in the Senate to pass.

cotton190502So the climate for criminal justice reform is getting ugly. Once, only Sen Tom Cotton (R-Ark) (who calls First Step Trump’s biggest mistake) demanded longer sentences. Last week, mainstream Newsweek magazine ran an opinion piece claiming that “America, in the year 2022, does not suffer from an over-incarceration problem. On the contrary, we suffer from an under-incarceration problem.” The column called on Congress to end “the jailbreak of slashed sentences and the broader civilizational suicide of the ‘criminal justice reform’.”

Politico, Criminal justice reform faces political buzzsaw as GOP hones its midterm message (April 14, 2022)

Politico, What’s next for criminal justice reform? (April 14, 2022)

CNN, Ambitious trial judges could be wary after GOP attacks on Judge Jackson’s sentencing record (April 11, 2022)

Wichita Eagle, Former U.S. attorney tells how criminal justice could be more just (April 12, 2022)

EQUAL Act (S.79)

First Step Implementation Act (S.1014)

Smarter Sentencing Act (S.1013)

COVID-19 Safer Detention Act (S. 312)

MORE Act(H.R.3617)

– Thomas L. Root

Free Willie (1st Circuit-style) – Update for April 19, 2022

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

WILLIE GOT HIS GUN…

freewilly220419Back in 2009, Willie Minor got into a minor beef with his wife that led to him being charged with domestic violence. When the Maine court told Willie that if he got convicted, he couldn’t possess a gun, Willie refused to plead to the charge (despite the prosecutor’s offer of no jail time).

The Maine prosecutor amended the charge to a simple “Assault, Class D” and struck out the sentence in the complaint stating, “this conduct was committed against a family or household member…” The judgment and commitment form had initially been printed with the offense “Domestic Violence Assault,” but the words “Domestic Violence” had been crossed out by hand. The assistant district attorney told Willie this change assured that Willie could continue to own firearms.

Six years later, Willie was caught with a handgun that he was sure he was allowed to have. The Feds this time (no county assistant district attorney) charged Willie with an 18 USC § 922(g)(9) felon-in-possession charge. Well, not really a “felon” in possession, but rather a wife-beater in possession: § 922(g)(9) prohibits possession of a gun by someone convicted of a misdemeanor crime of domestic violence (MCDV).

Willie went to trial, arguing that he hadn’t been convicted of an MCDV, and even if he had, he had no idea that he had. Relying on Rehaif v. United States, Willie argued the government had to prove he knew it was illegal for him to have the gun. The government argued Willie only needed to know he had done the acts that led to the assault conviction, and because the assault was against a family member – regardless of what the state conviction documents said or did not say – he had the guilty knowledge that supported the conviction.

Last week, the 1st Circuit split the case down the middle but vacated Willie’s conviction in the process. The Circuit agreed it is no defense for those charged with a 922(g) offense to say that they did not know that persons convicted of misdemeanor crimes of domestic violence could not possess guns. But, the 1st said, “while a defendant need not have known that possessing firearms was unlawful… the government need[s to] prove that he knew he violated the material elements of § 922(g)… which in this case means that he knew he had been convicted of a misdemeanor crime of domestic violence.”

manyguns190423In this case, whether the defendant knew was a dicey proposition. Willie had no lawyer for the assault conviction, and the Maine assistant DA told him that changing the domestic violence charge to a simple assault would let him keep his guns. But – as I have pointed out repeatedly where the definition of “crime punishable by imprisonment for a term exceeding one year” (§ 922(g)(1)) is concerned – the definitions undergirding Section 922 can be tricky. MCDVs are like that. They are defined as any misdemeanor assault where the victim is a family member or significant other. The offense doesn’t have to be called “domestic violence,” or even specify the victim’s connection to the defendant. What’s more, the court said, a § 922(g) usually results from the defendant having been convicted of a felony in a prior case where he had been represented by counsel. “And,” the Circuit said, “competent defense counsel is usually going to advise the client of the serious collateral ramifications of conviction.” (This pollyannish observation is laughable, but we’ll reserve discussion of it for another time).

So who cares about Willie’s victory (besides Willy, of course)? This decision could have ramifications for § 922(g)(1) felon-in-possession offenses. As I noted, the definition of a “crime punishable by imprisonment for a term exceeding one year” is detailed and legalistic, set out in 18 USC 921(a)(20). The logic used by the 1st Circuit in freeing Willie could well apply to any 922(g) conviction.

United States v. Minor, Case No 20-1903, 2022 U.S. App. LEXIS 9632 (1st Cir., Apr. 11, 2022)

– Thomas L. Root

Biden Makes Former Public Defender DOJ Pardon Attorney – Update for April 18, 2022

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

NEW BLOOD IN THE PARDON OFFICE

clemency220418It only took him 15 months, but President Joe Biden has taken baby steps on addressing clemency by appointing a new Dept of Justice Pardon Attorney. Elizabeth G. Oyer, the first permanent Pardon Attorney in six years (everyone else was “acting” without official appointment), formerly served as Senior Litigation Counsel to the Office of the Federal Public Defender for Maryland.

Oyer, a Harvard law graduate, has “represented indigent defendants at all stages of proceedings in federal district court [and] handled a wide variety of criminal cases, ranging from complex fraud to drug and gun offenses, as well as violent crimes,” law prof Mark Osler, a national expert in clemency law, said last week on Twitter.

“It means something that Prez Biden has actually filled this slot,” Ohio State University law prof Doug Berman said last week in his Sentencing Law and Policy blog. “It’s also significant – and positive – that he has given a career defender an important job in the Department of Justice.”

Don’t expect miracles, however. Osler warns that the problem of the 18,000-petition backlog “may not have been the Pardon Attorney, but the bureaucracy that takes up the petitions after they are evaluated by the pardon attorney,” referring to review by the Attorney General and White House. There are over 18,000 pending petitions, many of them now years old (including unresolved petitions from the Obama administration). “It’s a mess,” Osler wrote. “We just know what kind of mess, or where the mess is located. The whole thing needs reform.

chickens160208In last week’s blog, Berman argued again that the federal clemency process should be removed from DOJ, noting the FIX Clemency Act (H.R. 6234), introduced four months ago, that would set up an independent clemency authority to review applications. GovTrack, a website that tracks legislation, gives the bill a 2% chance of passing.

Berman warns that “a full 15 months into his administration, Prez Biden has not granted a single pardon and has not granted a single commutation. With more than 18,000 applications pending, not to mention many low-risk, COVID-vulnerable persons released to [CARES Act] home confinement, it ought not be that hard to find at least a handful of “non-violent and drug” offenders who deserving of clemency… Whomever is in charge of the matters at DOJ, where these is a clemency will there is surely a clemency way. As of now, though, it does not appear that Prez Biden really has much of a clemency will.”

Twitter, Biden Administration has appointed a Pardon Attorney (April 14, 2022)

Sentencing Law and Policy, Justice Department has new Pardon Attorney who is a former public defender … which means …? (April 15, 2022)

DOJ, Meet the Pardon Attorney (April 12, 2022)

H.R. 6234, FIX Clemency Act

– Thomas L. Root

Supremes Reject ‘The Greater The Harm, The Lesser the Remedy’ § 1983 Standard – Update for April 15, 2022

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

SUPREMES EXPAND RIGHT TO SUE LOCAL COPS UNDER 42 U.S.C. § 1983

Larry Thompson was charged with resisting arrest when he tried to stop police from entering his apartment in response to a false child abuse complaint. A New York court later dismissed the case on motion of the prosecution “in the interest of justice,” which is code for “no way we can win this dog of a case.”

policestate190603When Larry later sued under 42 U.S.C. § 1983, alleging that the police violated his 4th Amendment right to be free of unreasonable search or seizure), his case was thrown out. Existing New York law held the plaintiff had to show the underlying criminal case had been initiated without probable cause, initiated for a purpose other than bringing the defendant to justice, and terminated in favor of the defendant. A “favorable termination” was one where the plaintiff had been found to be not guilty.

Larry’s problem was that the criminal case against him was so specious that it didn’t make it to trial. He never enjoyed a “favorable termination” because the prosecution gave up before trial.

You can see the problem in this approach: the sketchier the criminal case, the more likely it is that the matter will never make it to trial. That means the greater the outrage visited on a hapless defendant, the less likely he or she will be found “not guilty” after a trial, because the lower the likelihood that there will even be a trial. The “favorable termination” rule thus punishes the people who have been most aggrieved.

champions220415Last week, the Supreme Court greatly expanded a former defendant’s ability to bring a 42 U.S.C. § 1983 claim, holding that “terminated in favor” means only that the “prosecution ended without a conviction” and not “with some affirmative indication of innocence.”

Justice Brett Kavanaugh wrote for a six-justice majority:

The question of whether a criminal defendant was wrongly charged does not logically depend on whether the prosecutor or court explained why the prosecution was dismissed. And the individual’s ability to seek redress for a wrongful prosecution cannot reasonably turn on the fortuity of whether the prosecutor or court happened to explain why the charges were dismissed. In addition, requiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a §1983 claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial. That would make little sense. Finally, requiring a plaintiff to show that his prosecution ended with an affirmative indication of innocence is not necessary to protect officers from unwarranted civil suits—among other things, officers are still protected by the requirement that the plaintiff show the absence of probable cause and by qualified immunity.

Thompson v. Clark, Case No. 20-659, __ S.Ct. __, 2022 WL 994329, 2022 U.S. LEXIS 1885 (April 4, 2022)

– Thomas L. Root

Acquitted Conduct No Panacea for Current Prisoners – Update for April 14, 2022

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

ACQUITTED CONDUCT AND THE HOPEMONGERS

The House of Representatives’ passage of the Prohibiting Punishment of Acquitted Conduct Act of 2021 (H.R. 1621) ten days ago appears to be chum on the water for some hope-mongering sharks who prey on inmates.

shark170607I already have heard from one person who is busy hiring an outside “research” service to evaluate his case to tell him whether he’ll benefit from the Prohibiting Punishment of Acquitted Conduct Act. For everyone’s benefit, here are two things to keep in mind.

First, the Act has not passed the Senate. It may. It may not. It may pass, but with different text, and then a conference committee will have to work out compromise text.

Second, the Act will apply to very few cases. It does not necessarily apply to relevant conduct. It does not apply to conduct not mentioned to a jury. If you did not have a jury trial, it does not apply (unless you were acquitted of the same conduct in a prior federal or state trial).

Finally, it is very unlikely that the Act will be retroactively applied to people already sentenced. The bill does not specify that it applies retroactively. Such bills are usually presumed not to be retroactive. Read 1 USC § 109 and Dorsey v. United States before you decide the courts will open their doors to post-conviction motions seeking resentencing because Prohibiting Punishment of Acquitted Conduct Act passes.

No reputable legal services company will take any money now to tell you whether you can get any sentencing benefit from the Prohibiting Punishment of Acquitted Conduct Act. It’s just too premature.

Prohibiting Punishment of Acquitted Conduct Act of 2021 (HR 1621)

Dorsey v. United States, 567 US 260 (Supreme Ct., 2012)

SPEAKING OF PREMATURE…

George Fower was sentenced to 24 months, but before he self-surrendered to the Bureau of Prisons, he sought compassionate release under 18 USC § 3582(c)(1)(A)(i) on the grounds he was very susceptible to COVID. Because he was not yet in prison, George found the statute’s administrative exhaustion requirement challenging, but he wrote to the warden of the prison to which he was to surrender in a month’s time, and later to the BOP’s Designation and Sentence Computation Center, the Regional Director and the Bureau of Prisons General Counsel.

Thirty days later (while still not in custody), George filed his compassionate release motion. The district court denied it, holding in part that “compassionate relief is not available to a defendant not in custody.”

Last week, the 9th Circuit agreed. It noted that the First Step Act amended the compassionate release statute only to allow the prisoner, rather than requiring BOP, to file the motion. At no time in the history of the “matrix of statutory and other enactments,” the Circuit said, were the BOP’s powers ever extended to grant it jurisdiction over those who had yet to commence their incarceration.

compassion160208It makes sense that the BOP has no place to play in compassionate release prior to a prisoner’s incarceration, the 9th noted. “The statute states that the defendant’s request must be addressed to ‘the warden of defendant’s facility,’ which cannot be known until there has been a designation by the BOP. This is further evidence that the statute contemplates that the defendant must be in a BOP facility before qualifying for compassionate relief.”

The 9th suggests that before a defendant self-surrenders, he or she may ask the district court to delay sentencing or to extend the surrender date.

United States v. Fower, Case No 21-50007, 2022 U.S. App. LEXIS 8919 (9th Cir., April 4, 2022)

– Thomas L. Root

A Tale of Two Bills (Part 2 – Up in Smoke) – Update for April 12, 2022

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

… MARIJUANA REFORM IS SUFFERING FROM TOO MUCH INTEREST

Politico was just one of several news outlets last week admitting that the MORE Act – far-reaching marijuana legalization bill passed two weeks ago by the House – still has “no real path to President Joe Biden’s desk.”

MORE’s passage marks the second time in less than two years that the House passed legislation to decriminalize pot, but the Democrats have “passed a party-line bill that has little chance of getting the necessary Republican support to pass the Senate.”

senatemarijuana220412“You’re not going to be able to get Republicans on board… the way that the MORE Act is done,” said Rep Nancy Mace (R-SC), who introduced a bill last year that decriminalizes marijuana and expunges some records but does not create federal grant programs. “You’ve got to have Republicans on board if we’re going to have any chance of getting it done in the Senate.”

Ironically, Republican complaints about MORE relate to federal funding of pot programs. No one is critical of the expungement and retroactive sentencing reforms.

The Senate — where Senate Majority Leader Chuck Schumer (D-NY), Sen. Cory Booker (D-NJ) and Sen. Ron Wyden (D-OR), are working on the Cannabis Administration and Opportunity Act — is even tougher ground for weed.

Booker and Schumer have refused to even hold a hearing on a cannabis banking bill the House has approved six times because it does not address criminal justice reform. But Democrats’ pursuit of a perfect comprehensive pot bill worries some lawmakers and advocates, who do not see a clear path forward for sweeping drug policy changes under Republican leadership in either chamber — especially the Senate. Given that Democrats may not control both houses of Congress next year, the window for federal cannabis policy port reform may not be open much longer.

MORE faces significant hurdles in the Senate. First, not all Democrats are in favor of marijuana legalization; conservative Democrats, represented by a few senators such as Sen Joseph Manchin (WV), stand in the way of reform. In order to pass the Senate, the bill needs to secure 60 votes to be safe from a Republican filibuster. Because not all Democrats are expected to vote in favor of the MORE Act, ensuring its success would require more than 10 Republicans voting in favor of it.

marijuana220412But the future of marijuana legalization does not rely solely on the success of the MORE Act. Schumer intends to introduce  CAOA later this month. If CAOA gets a vote in the Senate, it will be the first time in 50 years that the Senate voted on cannabis reform. The downside, according to the National Law Review, is that “the competing interests of these two bills could create an unnecessary deadlock, potentially leaving the cannabis industry with another year of failed reforms.”

MORE Act (H.R. 3617)

Politico, House passes marijuana legalization bill (again), but with no clear path forward (April 1, 2022)

Shepherd’s, Marijuana Legalization Act Passes the House, Likely to Die in the Senate (April 7, 2022)

National Law Review, The House Does It Again: MORE Act Ready for Senate Action (April 4, 2022)

Cannabis Administration and Opportunity Act (not yet introduced)

– Thomas L. Root

A Tale of Two Bills (Part 1 – Fixing a ‘Crack’ in the Law) – Update for April 11, 2022

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

EQUAL ACT PICKING UP STEAM…

capitol160110Last Monday, Sen. Roy Blunt (MO) became the 11th Republican to sign onto the EQUAL Act (S.79/H.R.1693), joining a spectrum of Republicans from Sen. Lindsay Graham (SC) to Sen. Susan Collins (ME) adding their names to the bill.

The significance of Blunt’s co-sponsorship is that with full Democrat support for the measure and at least 11 Republican votes, EQUAL’s passage is assured if it is put up to a vote. The legislation was approved by the House of Representatives last fall.

If it becomes law, the EQUAL Act will make statutory punishment for crack cocaine no different than for powder cocaine. Currently, crack is penalized at an 18:1 ratio, meaning that while a half kilo of coke powder carries a five-year mandatory minimum, only 28 grams of crack is needed to get a defendant the same sentence. The EQUAL Act is fully retroactive, meaning that thousands of current sentences involving crack could be reduced.

lineofcoke160803The question always is when – or if – the Senate will bring the bill up for a vote. That decision lies with Senate Majority Leader Chuck Schumer (D-NY). Axios reported that Schumer – who also is an EQUAL Act co-sponsor – met last Tuesday with advocates and formerly incarcerated leaders, where he described the legislation as “a priority.” He has given no indication of timing on EQUAL, but he told Axios last week he does plan to bring the legislation to the floor.

The Hill said last Wednesday that EQUAL’s having collected 60 sponsors is a “threshold that is expected to trigger a hearing in the coming weeks.” Politico says the measure “may already have the votes to get to President Joe Biden’s desk.”

The Congressional Black Caucus sent Schumer a letter last Monday urging quick passage of EQUAL. The letter said in part

We write in support of bringing the EQUAL Act (H.R. 1693/S. 79) to the Senate Floor for consideration as soon as possible. It would eliminate the crack and powder cocaine sentencing disparity and ensure that those who were convicted or sentenced for a federal offense involving cocaine can receive a re-sentencing under the new law. According to a recent analysis from the U.S. Sentencing Commission, approximately 827 individuals would benefit from the prospective section of the bill each year, and 7,787 offenders in BOP custody would be eligible to seek a modification of their sentence based on the retroactive section. In total, the EQUAL Act will reduce excessive prison time by 67,800 years, and 91% of the individuals who will get this critical relief are Black.

optimism220411Politico optimistically reported last week that “other bipartisan federal legislation that could reach President Biden’s desk this year include bills that abolish federal life without parole sentences for juveniles, prevent the use of acquitted conduct in sentencing, extend Medicaid to otherwise eligible individuals within 30 days of their release from incarceration, and invest in treatment for people with mental illness in the justice system.”

We’ll see about some of that tomorrow…

Axios, Congress closes in on cocaine sentencing disparity (April 6, 2022)

The Hill, Confirmation combat can’t crush bipartisan criminal justice reform (April 6, 2022)

Politico, A major group of House Democrats is asking the Senate to end a policy widely considered racist: sentencing disparities between crack and powder cocaine (April 5, 2022)

Hakeem Jeffries, Letter to Schumer and Durbin (Apr 5)

– Thomas L. Root

Details Matter, 10th Circuit Says – Update for April 8, 2022

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

DISTRICT COURT PUNT BLOCKED BY 10TH CIRCUIT

In 2004, Tony Burris was sentenced to 262 months on a crack cocaine charge, the low end of his Guidelines sentencing range. After the First Step Act was passed, Tony applied for his retroactive Fair Sentencing Act reduced sentence under First Step Section 404.

ghostdope220408The government opposed the motion, arguing that Tony’s Guidelines range remained the same because the calculation should be based on the quantity of crack cocaine attributed to him in the Presentence Report (typically stratospheric) rather than the smaller amount charged in the indictment. Recognizing that the parties raised an issue that had not yet been addressed by the 10th Circuit, the district court declined to resolve it and instead held that it would deny relief to Tony regardless of the correct Guidelines calculation.

Last week, the 10th Circuit reversed, holding that the district court was obligated to calculate Tony’s revised Guidelines range before denying relief on his Section 404 motion. “A defendant’s Guidelines range is the starting point and the initial benchmark of sentencing,” the Circuit ruled, and “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.”

error161022The government argued that any error was harmless because the district court “looked at both proposed Guidelines ranges and concluded that it would deny the motion under either” one. The 10th rejected that contention, holding that while the district court may have said it would deny relief “whatever the result” of the correct Guidelines calculation, “our court has rejected the notion that district courts can insulate sentencing decisions from review by making such statements.” Here, the Circuit held, “the district court’s error, by its very nature, was not harmless; the district court’s exercise of discretion was untethered from the correct calculation of Tony’s revised Guidelines range.

United States v. Burris, Case No. 19-6122, 2022 U.S.App. LEXIS 8363 (10th Cir., Mar 30, 2022)

– Thomas L. Root

News Briefs from Capitol Hill – Update for April 7, 2022

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

CONGRESSIONAL SHORT TAKES…

House OKs Prohibition on Using Acquitted Conduct in Sentencing: Last week, the House passed H.R. 1621, the Prohibiting Punishment of Acquitted Conduct Act of 2021 by an overwhelming 405-12 vote.

Co-sponsor Steve Cohen (D-TN), said, “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”

A similar measure introduced by Sens Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) was considered in the Senate Judiciary Committee last June and has been advanced to the full Senate.

sliceofpie220407The bill actually does very little. If a federal defendant goes to trial and is acquitted on one or more counts, but is convicted on at least one count, the sentencing judge may nevertheless take into account all of the conduct for which the defendant was acquitted in setting a sentence.  All the judge has to do is conclude that the government proved the defendant committed the acquitted acts by a preponderance of the evidence, a lower standard than the standard for conviction, which is “beyond a reasonable doubt.”

So the legislation will benefit the portion of the 6% who go to trial who are not acquitted of all charges and who are not convicted of all charges.  That’s a pretty small slice. It will not help people whose sentences are affected by charges that the government dismisses or, even more common, accusations of relevant conduct which are never charged to begin with.

And, no, it will not be retroactive. Still, any nudge of sentencing procedure toward sanity is welcome.

H.R. 1621, Prohibiting Punishment of Acquitted Conduct Act of 2021

Steve Cohen, Congressman Cohen Speaks in Favor of and Votes for His Bill Prohibiting the Consideration of Acquitted Conduct in Sentencing (Mar 28)

Sen Hawley Introduces Bill to Slam Judge Jackson and CP Defendants: Who saw this coming?

kittyporn170420In the wake of his criticism of Judge Ketanji Brown Jackson for being soft on child pornography defendants, Sen Josh Hawley (R-MO) has week introduced a bill to require a minimum 5-year sentence on people possessing child pornography and to require judges to sentence within the Guidelines for any child pornography offense.

Rep Ken Buck (R-CO) introduced companion legislation in the House.

A Democratic Party opponent to Hawley said of the bill, “We can count on Senator Hawley to find the lowest common denominator to draw attention to himself. The independent ABA’s review board found this line of questioning to be misleading and multiple fact checkers have debunked the allegations regarding sentencing. Choosing this time to introduce this legislation is purely for attention and designed to appeal to conspiracy.”

S.3951, Protect Act of 2022

H.R. 7263, Protect Act of 2022

Washington Times, GOP introduce bill to beef up child porn sentences after Judge Jackson’s confirmation hearing (March 30, 2022)

KYTV, Springfield, Missouri, Missouri U.S. Sen. Josh Hawley introduces bill over sentences for child porn offenders (April 2, 2022)

crack211102FAMM Issues EQUAL Act Analysis: FAMM released an analysis last week urging the Senate to approve the EQUAL Act reporting that if the bill becomes law, it will reduce sentences for people already serving time for crack offenses by an average of just over six years, cutting 46,500 years off sentences. FAMM estimates that 91% of people benefitting from EQUAL Act are black.

FAMM, The EQUAL Act: Why Congress Must #EndTheDisparity Between Federal Crack & Powder Cocaine Sentences (March 31, 2022)

– Thomas L. Root

‘Disheartened’ BOP Director Tells Staff ‘Don’t Be Evil’ – Update for April 5, 2022

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

MANPOWER AND CORRUPTION WOES CONTINUE TO PLAGUE BOP
Carvajal advises BOP staff...
Carvajal advises BOP staff…

The indictment of a fifth Bureau of Prisons employee in connection with the ongoing sexual abuse scandal at FCI Dublin (California) has caused ‘disheartened’ outgoing BOP Director Michael Carvajal to remind all 36,000-plus BOP staff “that we ALL have a responsibility to protect staff and inmates by reporting wrongdoing of any kind, especially misconduct, and we must have the courage to do so.”

According to the indictment unsealed last Friday, Enrique Chavez, a Cook Supervisor/Foreman at Dublin, engaged in abusive sexual contact with inmates in October 2020. Chavez joins former Warden Ray Garcia, former Chaplain James Highhouse, Safety Administrator John Bellhouse, and recycling technician Ross Klinger as defendants in the unfolding FCI Dublin sex abuse scandal.

Chavez’s arrest came only weeks after eight members of Congress, including Rep. Eric Swalwell (D-CA) (whose district includes Dublin), demanded an investigation into allegations of abuse and misconduct at the prison.

Writing in Forbes last week, Walter Pavlo said, “The BOP has a substantive history of corruption, staff shortages and, recently, delays in implementation of The First Step Act… Tens of thousands of prisoners who believe they have earned credits are awaiting a backlogged BOP to determine when they will be released.”

paperwork171019Pavlo said, “I spoke with Mary Melek, a case manager at FDC Miami who had 364 prisoners on her caseload until a recent hire cut that in half, still over the recommended 150:1 ration. Melek expressed her frustration, ‘There are 5 augmented openings on a shift, openings where the BOP has planned augmentation, and that has pulled me away from my work’. The augmentation not only applies to case managers, but other workers, including health services where FDC Miami is at 56% of its staffing rate.”

Help could be on the way to the BOP in the form of money. The recently-passed FY2022 omnibus spending bill included $7.865 billion for BOP salaries and expenses, a $200 million dollar increase over the agency’s requested funding. According to a press release from AFGE National Council President Shane Fausey, the BOP is “expected to hire additional full-time correctional officers in order to reduce the reliance on augmentation and improve staffing beyond mission-critical levels in custodial and all other departments, including medical, counseling, and educational positions.”

President Biden’s proposed budget for next year, released last week, asks for even more: $8.18 billion “to ensure the health, safety, and wellbeing of incarcerated individuals and correctional staff; fully implement the First Step Act and ease barriers to successful reentry,” according to the DOJ.

bullshit220330The money, of course, does not address the recent spate of corruption. Carvajal said in last week’s internal communication to BOP staff that “the recent media attention regarding misconduct in the BOP as being characterized using phrases such as “cover-ups,” “sign of a larger problem” and “toxic culture of sexual abuse.” These phrases are not true characterizations of the vast majority of the staff who work in our facilities across the Nation.”

Of course not. That is, unless you read the inmate email I get. Walter Pavlo seems to feel the same, writing that “Carvajal could have noted that since his rising to the agency’s highest position” a House subcommittee investigation found that BOP “discipline and accountability is not equitably applied … For high ranking officers, bad behavior is ignored or covered up on a regular basis, and certain officials who should be investigated can avoid discipline.”

DOJ, Correctional Officer At FCI Dublin Charged For Abusive Sexual Contact With Female Inmate (March 23, 2022)

Pleasanton Weekly, Another guard at Dublin prison charged with sex abuse of inmate (March 28, 2022)

Forbes, ‘Disheartened’ Director Of Bureau Of Prisons Calls On Staff To Out Corruption (March 31, 2022)

DOJ, Department of Justice Fiscal Year 2023 Funding Request (March 28, 2022)

Forbes, Bureau Of Prisons Is Overworking Its Most Critical Staff Positions During First Step Act Implementation (March 31, 2022)

– Thomas L. Root