Tag Archives: elderly offender home detention

Elderly Offender Program Dies – Update for October 10, 2023

Leave a comment

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

LAW FORCES END OF ELDERLY HOME DETENTION PROGRAM

The Federal Bureau of Prisons’ Elderly Offender Home Detention pilot program (EOP) is over for now, Whether it will ever return is an open question.

okboomer231010Originally adopted as a pilot program in the Second Chance Act of 2007, the EOP was authorized at a single BOP facility only, permitting nonviolent offenders who were 66 years old to serve the final months of their sentences at home. The First Step Act expanded the program to the entire BOP system in 2018, allowing “offenders who are over 60 years of age, have served two-thirds of their sentence, are not convicted of a crime of violence, and do not have a history of escape to be placed on home confinement for the remaining portion of their sentence.”

A great idea: take nonviolent, unlikely-to-offend-again oldsters who are costing the BOP a ton of money for healthcare, and send them to home confinement. OK, Boomer!

But tucked into a corner of the EOP statute at 34 USC 60541(g)(3) was the limitation that the EOP would remain a “pilot program and shall be carried out during fiscal years 2019 through 2023.” Fiscal 2023 ended on September 30th.

By all accounts, the program worked well. Since 2018, the BOP has placed over 1,220 people at home under the program with no reports of new criminal conduct.

Writing in The Hill, former BOP Director Hugh Hurwitz noted a July 2022 Sentencing Commission study showed that the recidivism rate for people over 50 is less than half that of those under 50. “Under the pilot program,” Hurwitz wrote, “only those over 60 are considered, and they can’t have any history of violence, thus making their recidivism rate even lower.”

The Vera Institute of Justice reported six years ago that the cost of keeping older people locked up “is double that of housing younger ones, due to health care expenses.” Even a decade ago, the BOP spent a fifth of its budget on older inmates. The average prisoner age is up about 8% since then. “People serving time on home confinement see their own doctors (while being monitored electronically),” Hurwitz wrote, “and bear the costs themselves, saving taxpayers millions.”

notokboomer231010Walter Pavlo wrote in Forbes that “many are calling for EOP’s renewal. Budget constraints, administrative changes, and shifts in policy priorities left the EOP program hanging in the balance. This termination has raised concerns among advocates and experts who believe that the program’s end is a step in the wrong direction.”

Sadly, reauthorization of the program will require action by a Congress that is not producing much in the way of legislation and is awaiting reauthorization of a program that will send prisoners to home confinement – even a proven one that makes perfect sense – may have a long wait. In fact, I doubt that we will see the program return in the next five years.

Not OK, Boomer.

The Hill, Moving elderly prisoners home saves taxpayer dollars without sacrificing safety (September 27, 2023)

Forbes, Old and Facing Prison (October 7, 2023)

Dept of Justice, First Step Act Annual Report (April 2023)

Vera Institute, Aging Out (December 2017)

– Thomas L. Root

Three First Step Reform Retread Bills Introduced – Update for April 24, 2023

Leave a comment

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

DÉJÀ VU ALL OVER AGAIN

deja171017Senate Majority Whip Richard Durbin (D-IL), chairman of the Judiciary Committee, and Sen. Charles Grassley (R-IA) last Wednesday reintroduced three of the biggest criminal justice of the last Congress, reform bills that made it out of Senate committee but never got voted on in 2021-2022.

Yogi Berra might say, “It’s déjà vu all over again.”

Durbin and Grassley sponsored First Step five years ago. Now, they have reintroduced the First Step Implementation Act (FSIA) (S. 1251) and Safer Detention Act (S.1248) – both of which were approved by the Committee in 2021 but did not pass the Senate the last Congress – as well as rolled out the Terry Technical Correction Act (S. 1247).

The FSIA would allow courts to apply First Step sentencing reform provisions to reduce sentences imposed prior to First Step’s December 2018 enactment and broaden the drug safety valve (18 USC § 3553(f)) to allow courts to sentence below a mandatory minimum for nonviolent controlled substance offenses, if the court finds the defendant’s criminal history over-represents the seriousness of the defendant’s criminal record and the likelihood of recidivism.

The Safer Detention Act of 2023 would reform the Elderly Home Detention Pilot Program (34 USC § 60541(g)(5)) by clarifying that the time served required for the Program should be calculated based on an inmate’s net sentence – including reductions for good conduct time credits; lowering eligibility to include nonviolent offenders who have served at least 50% (instead of 66.7%) of their terms; and making D.C. Code offenders in BOP custody eligible for the Elderly Home Detention Pilot Program. The bill would also make federal prisoners sentenced before November 1, 1987 eligible for compassionate release.

jordan230425The Terry Technical Corrections Act (S. 1247) broadens the scope of crack cocaine offenders who are eligible for a retroactive sentencing reduction under the First Step Act of 2018. The First Step Act authorized sentencing reductions for crack cocaine offenders convicted and sentenced before the Fair Sentencing Act became effective, as long as their conduct triggered a mandatory minimum sentence. This bill extends eligibility for the retroactive sentencing reduction to all crack cocaine offenders sentenced before the Fair Sentencing Act became effective, including low-level offenders whose conduct did not trigger a mandatory minimum sentence.

Remember that this same trio of modest proposals did not pass even when the Democrats ran the House, the Senate and the White House. Now, the Republicans run the House, with Rep. Jim Jordan (R-OH) chairing a House Judiciary Committee more interested in attacking Democrats for being soft on crime and hard on former President Trump than it is in addressing criminal justice reform.

Writing in his Sentencing Law and Policy blog last Thursday, Ohio State University law prof Doug Berman said, “For a wide variety of reasons, I am not at all hopeful that any form of federal sentencing reform will be enacted in the current Congress. But I was still pleased to learn… that a pair of notable Senators are still seeking to advance some notable (previously stalled) sentencing bills.”

underthesun230424

Kohelet was an old and wise guy when he reputedly wrote the Book of Ecclesiastes. If he were still writing, it would be about these three bills.  Nothing new under the sun, indeed, as will probably be the fate of these three – demise in December 2024, just as the last three died at the end of 2022. At that time, we will be writing of the FSIA, Safer Detention Act and Terry Technical Correction Act, “Vanity of vanities! All is futile! What profit hath a man for all his toil, in which he toils under the sun?”

Reintroduction of the three measures last week came as The Crime Report complained that “after four years, the impact of the First Step Act has been mixed… In March 2022 that there were 208,000 inmates in federal prisons and jails. But only 5,000 inmates… have been released through one or more provisions of the FSA.”

The Crime Report concluded

The sheer number of reforms in the FSA that are the antithesis to the Nixon-era ‘lock-‘em-up-and-throw-away-the-key’ penal philosophy of both the Bureau of Prisons and the US Sentencing Commission make it exceedingly difficult to have the promise of the FSA fulfilled. The very magnitude of the law and its stated objectives, which include reducing recidivism and improving conditions in federal prisons, has resulted in less than what was initially promised by the supporters of FSA.

First Step Implementation Act (S.1251)

Safer Detention Act of 2023 (S.1248)

Terry Technical Corrections Act (S.1247)

Sentencing Law and Policy, Senators Durbin and Grassley introduce again set of First Step follow-up bills (April 20, 2023)

The Crime Report, The Promises Of Federal Criminal Justice Reform: Shortcomings of the First Step Act (April 17, 2023)

– Thomas L. Root

Who Knows What Joe’s Thinking? – Update for August 17, 2021

Leave a comment

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

ADMINISTRATION HINTS AT DRUG CLEMENCY (MAYBE)

Biden Press Secretary Jen Psaki started hearts and tongues fluttering last week when she said the Administration was looking at clemency for federal drug offenders.

clemencypitch180716“The president is deeply committed to reducing incarceration and helping people successfully reenter society,” Psaki said in a press briefing. “And he said too many people are incarcerated — too many are black and brown — and he’s therefore exploring multiple avenues to provide relief to certain nonviolent drug offenders, including through the use of his clemency power.”

As a candidate, Biden said in 2019 that he wanted to release “everyone” in prison for marijuana, but Psaki has referred questions on whether he will do so to the Justice Department, saying last April it was “a legal question.”

The New York Post reported that “Psaki’s remark thrilled clemency advocates who have been pushing for Biden to commute prison sentences and issue pardons early in his term, which is uncommon for presidents. Clemency advocate Amy Povah said, “We are elated that President Biden has expressed an interest in using his executive clemency power with an emphasis upon drug cases.”

caresbear210104Meanwhile, other advocates feel frustrated that Biden has done nothing on a matter as small as addressing the status of people on CARES Act home confinement. Last Wednesday, Senators Richard Durbin (D-Illinois) and Cory Booker (D-New Jersey) wrote to President Biden, urging him to act on keeping CARES Act home confinees at home. They suggested, in part, that the Bureau of Prisons could “provide relief for certain individuals through prerelease home confinement, under 18 USC § 3624(c)(2), and the Elderly Home Detention Pilot Program, pursuant to 34 USC 6054l(g). For those who do not qualify for those provisions, BOP can recommend, and DOJ should support, compassionate release pursuant to 18 USC § 3582(c)(l)(A). Compassionate release is authorized whenever extraordinary and compelling reasons warrant a sentence reduction, and the once-in-a-century global pandemic that led to these home confinement placements certainly constitutes such an extraordinary and compelling circumstance.”

Reuters last week reported that the Justice Department had asked an Oregon federal judge on Tuesday to deny a bid by federal inmates to qualify for early release through First Step earned time credits. Prosecutors argued that no programs or activities completed by the inmates qualified for earned time credits.

Reuters said, “The rift could increase pressure on the Justice Department, which is under fire from civil rights advocates for its inaction to prevent BOP from sending thousands of federal inmates back to prison once the pandemic emergency is lifted.”

At issue is a provision from the 2018 First Step Act, which aims to ease harsh sentencing for non-violent offenders and reduce recidivism. The BOP may award 10 or 15 days’ credit for every 30 days of participation in recidivism-reduction or activities such as academic classes or certain prison jobs.

In a November 2020 proposed rule, the BOP defined a day of participation as eight hours and limited the menu of qualifying programs.

recid160321One issue is the BOP’s definition of a day of participation as 8 hours. “The math speaks for itself,” federal defenders wrote in a January 2021 letter to BOP. “It would take 219 weeks, or over 4 years to earn a full year of credit under the BOP’s proposed rule.”

In Tuesday’s case, the lead plaintiff has held prison jobs such as a painter and an HVAC worker and completed courses such as anger management, entrepreneurship, and a residential drug abuse program. But the government argued that none of those programs is on the BOP’s EBRR program list.

“If HVAC work doesn’t qualify, what kinds of jobs do?” asked Magistrate Judge John Acosta, noting the program’s goal of reducing recidivism and facilitating reintegration into society.

“The ones that are identified by the Bureau of Prisons,” AUSA Jared Hager replied, noting the inmates have “not shown entitlement to any credit.” The list of qualifying programs and activities will be updated by Attorney General Merrick Garland, he added.

Similar suits are on file in federal courts throughout the country.

Finally, JDSupra.com reported last week that Senate Majority Leader Chuck Schumer (D-New York) has partnered with Senate Finance Committee Chairman Ron Wyden (D-Oregon) and Sen Booker to draft comprehensive federal cannabis reform legislation, which the sponsors plan to introduce this fall.

marijuanahell190918The measure, called the Cannabis Administration and Opportunity Act (the CAOA), would – among other matters – would require the federal government to expunge any arrest or conviction for a non-violent federal cannabis offense, and allow any person serving a criminal justice sentence for a non-violent federal cannabis offense to move for sentence reduction. After the hearing, the court would be required to expunge each arrest, conviction, or adjudication for a non-violent federal cannabis offense.

The drafting of the bill is in its early stages. The sponsors are actively soliciting comments prior to CAOA’s introduction. Comments may be submitted through September 1, 2021, at Cannabis_Reform@finance.senate.gov.

New York Post, Biden ‘exploring’ clemency for federal drug crimes, Psaki says (August 11, 2021)

Letter from Senators Durbin and Booker to President Biden (August 12, 2021)

Reuters, U.S. Justice Dept clashes with inmates over credits to shave prison time (August 10, 2021)

JDSupra.com, US Senators Seeking Input on Comprehensive Federal Cannabis Reform Legislation (August 11, 2021)

 

– Thomas L. Root

BOP COVID Report – Update for August 10, 2021

Leave a comment

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

SO WHAT ABOUT THAT COVID VARIANT?

The Bureau of Prison’s own sometimes-controversial numbers suggest the agency is holding the COVID-19 Delta line for inmates, with 310 reported ill as of last night, up only 5.4% since a week before. The BOP has complete control over that number. But it has less control over the number of ill BOP employees – up 48% from a week before, from 157 to 233 – and the number of facilities with COVID-19 present. That number jumped from 80 to 96 joints, the highest level in four months.

Raisedead210208According to data published Sunday by the U.S. Centers for Disease Control and Prevention, 50.1% of the total U.S. population is now fully vaccinated – more than 166 million people. The US now is averaging more than 100,000 new COVID-19 cases every day, the highest in almost six months. The BOP reports 55.7% of inmates and 52.5% of staff have been vaccinated.

Two more inmate deaths were reported last week, one July 17th at Texarkana and a second, on July 28th at FMC Ft Worth. Roy Berry, who died at Ft Worth, had COVID in March but had been declared recovered by the BOP. At least 257 federal inmates have died of COVID. Due to squirrely reporting from private prisons (where reports of deceased prisoners magically disappeared from time to time), the number is certainly higher than that.

USP McCreary reported 56 sick inmates, Miami FDC 25, FCI Texarkana 25, FCI Phoenix 24, USP Yazoo City 14, FMC Butner 13; and FCI Terminal Island with 11.

NPR reported last Friday on the COVID-19 Safer Detention Act, noting that the bill – sponsored by Sens Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa) – would extend compassionate release to the ever-decreasing numbers of “old law” inmates (those sentenced before 1988) still in the system.

The bill, which has passed out of the Senate Judiciary Committee and is also pending in the House, would ease COVID-19 compassionate release procedures, make permanent CARES Act home confinement, and benefit Elderly Offender Home Detention  inmates.

home190109Meanwhile, Reason magazine argued last week that the CARES Act home confinees have proven that home detention is a viable imprisonment alternative. “The overwhelming majority of those released on home detention have not reoffended. Of the 28,881 prisoners allowed on home detention last year, only 151 individuals, less than 1%, violated the terms of their confinement. Only one person has committed a new crime… In short, home detention seems to be largely successful. Most prisoners under the program have stayed out of trouble and are working to become law-abiding citizens. In doing so, they are saving taxpayers the exorbitant price of incarceration—which, on average, costs over $37,500 per year versus $13,000 per year for home confinement and monitoring.”

BOP, COVID-19 resource page (August 9, 2021)

CDC, COVID Tracker (August 8, 2021)

BOP, Inmate Death at FCI Texarkana (August 2, 2021)

BOP, Inmate Death at FMC Ft Worth (August 3, 2021)

NPR, Some Older Prisoners Aren’t Eligible For Compassionate Release. Lawmakers Want Change (August 6, 2021)

Reason, The Pandemic Showed Home Detention Works (August 6, 2021)

– Thomas L. Root

Will BOP Director Carvajal Be The Next One to Be Sent Home? – Update for June 29, 2021

Leave a comment

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

SOME BOP HONCHOS GET EARLY RELEASE, AND CARVAJAL MAY BE NEXT

hitroad210629The Associated Press reported last Wednesday that two Federal Bureau of Prisons Regional Directors have been relieved of their posts. Senior Biden administration officials are also considering replacing Director Michael Carvajal, whom the AP describes as being “at the center” of the “beleaguered agency’s myriad crises.”

The discussions about whether to fire Carvajal are in the preliminary stages and a final decision hasn’t yet been made, AP said it had been told by two people familiar with the matter. They were not authorized to publicly discuss the internal talks and spoke on condition of anonymity.

However, AP reported, “there’s an indication that the bureau is shaking up its senior ranks following growing criticism of chronic mismanagement, blistering reports from the Justice Department’s inspector general, and a bleak financial outlook.”

shocked191024Mismanagement at the BOP? I’m shocked.

“Since the death of Jeffrey Epstein at a federal lockup in New York in August 2019,” the AP claimed, “Associated Press has exposed one crisis after another, including rampant spread of coronavirus inside prisons and a failed response to the pandemic, escapes, deaths and critically low staffing levels that have hampered responses to emergencies.”

At least two regional directors, officials in charge of institutions in the South Central and the Southeast regions are also being replaced. BOP said the two regional directors — Juan Baltazar, Jr. and J.A. Keller — are retiring and had been planning to do so. But the sudden removal apparently was not the testimonial dinner and gold watch the two had anticipated: other people familiar with the matter said that neither had planned to leave for months and were told other officials were being appointed to their jobs.

On Wednesday, AP said, the BOP announced it was appointing wardens William Lothrop and Heriberto Tellez to the regional posts. Tellez, one of the “morons” recently referred to by Senior US District Judge Colleen McMahon, is currently in charge of MDC Brooklyn, the high-rise dungeon where a 34-year-old inmate was found dead in his cell as recently as a week ago.

Carvajal took over as director in February 2020, a month before COVID-19 began galloping through all 122 of the BOP’s facilities, infecting over 48,000 inmates and killing 255.

reel210629To be sure, the Director does not have a lot of highlights on his reel.  Nearly a third of BOP correctional officer jobs are vacant, forcing the BOP to continue to use augmentation, pressing medical, educational, office, and other staff into temporary CO duty.

Some question whether the staffing shortage will prevent the agency from maintaining security and at the same time carrying out its First Step Act programming duties. Over the past 18 months, 30 prisoners have escaped from federal lockups across the U.S. — and nearly half still have not been caught. The AP said prisoners have broken out at lockups in nearly every region of the country.

The Bureau has said it expects to bring on 1,800 new employees, and that its recent hiring initiative has been “a huge success.” But the AP reports the BOP has been slow-walking its hiring process, pausing most new hires until at least October. Officers at several facilities have held protests calling for Carvajal to be fired.

Late last week, Shane Fausey, national president of the Council of Prison Locals, AFL-CIO (representing 30,000 BOP employees) told Politico, “A clear and dangerous staffing crisis in the Bureau of Prisons, as explicitly outlined in a number of OIG reports and a recent scathing report by the GAO, has pushed this agency beyond its limits. Our employees and officers continue to endure unrelenting overtime and reassignments as the budgetary shortfall is preventing the hiring of much needed Correctional Officers.”

Meanwhile, President Biden’s detailed 2022 BOP budget request does not throw the BOP a life preserver. It includes a reduction of $267 million to reflect decreases in the BOP’s inmate population — a decrease that is a result, in part, of the CARES Act and increased use of the Elderly Offenders Home Detention program.

Jail151220But it’s not just the staff shortage and cash crunch. The BOP continues to be plagued by embarrassing allegations of misconduct. Although this predates Carvajal’s administration, a loaded gun was found smuggled into MCC New York not long after Epstein committed suicide. In the last month, the DOJ Inspector General issued a report about security lapses at BOP minimum-security facilities. Last week, the family of Jamel Floyd – who died a year ago at MDC Brooklyn after being pepper-sprayed by guards (only a few months before scheduled release after 15 years) – sued the BOP.

The Floyd suit came only a few days after a suit filed in Denver by BOP employees alleged that USP Florence special operations (SORT) team members fired pepper spray, plastic bullets, and pepper balls at their unarmed, administrative colleagues during a training exercise, in “inappropriate and dangerous” training episodes. Those failings prompted the DOJ Inspector General to recommend that some of its special operations training be suspended until better safeguards could be put in place.

“We believe that staff members at the Bureau of Prisons abused their coworkers in a way that undermines, or should undermine, the faith of the public in the ability to do their jobs,” said attorney Ed Aro, who is representing four current and former Bureau of Prison employees who say they were injured and traumatized by the training.

Last week, Vanity Fair published a long piece chronicling pretrial detainee Ghislaine Maxwell’s complaints about inhumane treatment at MCC New York.

And we end with an Eastern District of Virginia federal judge last week angrily and publicly blaming the BOP for the suicide death of a presentence defendant.

angryjudge190822The man had been sent to FMC Butner – a BOP medical and psychiatric center – for a mental evaluation. He was declared competent to enter a plea and returned to a local jail. After the man pled guilty but before sentencing, Judge T.S. Ellis III again became concerned about the man’s mental health and ordered him back to FMC Butner for further care.  BOP officials refused him unless the defendant was deemed incompetent again or required a new psychiatric evaluation. So the defendant went to a local jail where he took his own life on May 18.

At a hearing on June 24, the judge excoriated the BOP for refusing to take the man and failing to provide his medical records to the local jail. “If I issue an order, you must obey it,” he told prison officials who participated in the hearing. “Nobody in the Bureau of Prisons should ever decide they don’t want to obey my order because they think it violates the law. I trump their view of the law.”

Welcome to the culture of the BOP, Your Honor.

Associated Press, AP sources: Officials mulling ousting US prisons director (June 23, 2021)

Newsweek, Trump-Appointed Bureau of Prisons Director Michael Carvajal Could Be Replaced Amid Crises (June 23, 2021)

Midnight Report, Federal Bureau of Prisons Oust Regional Directors in South Central and Southeast Regions (June 23, 2021)

Time, After His 2020 Death in a New York Jail Cell, Jamel Floyd’s Family File Lawsuit Against Bureau of Prisons (June 24, 2021)

Denver Post, Supermax special ops team used pepper spray, plastic bullets on unarmed colleagues during training exercise, lawsuit alleges (June 23, 2021)

Politico, Union boss: Bureau of Prisons faces dangerous cash crunch (June 25, 2021)

Vanity Fair, Inside Ghislaine Maxwell’s Battle With the Bureau of Prisons (June 24, 2021)

Washington Post, Judge faults federal prison system after suicide of Great Falls man (June 25, 2021)

– Thomas L. Root

Last Week in Washington… – Update for March 11, 2021

Leave a comment

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

ODD COUPLE STRIKE AGAIN; CALL TO REPEAL AEDPA

oddcouple210219A few weeks ago, Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), the top two guys on the Senate Judiciary Committee, teamed up to introduce the COVID-19 Safer Detention Act (S.312), which would make grant of compassionate release for COVID-related reasons easier and relax the Elderly Offender Program age and sentence limits. Last week, the odd couple was at it again, introducing the Prohibiting Punishment of Acquitted Conduct Act (S.601).

The Act, a similar version of which was introduced last year but died without a vote, would prohibit federal courts from using conduct for which a defendant was acquitted as factors to pump up Guidelines scores.  

nuns170427The problem is this: Donnie Dopehead is charged with two drug counts, one for distributing 100 kilos of marijuana and the other for selling 15 grams of cocaine. The Feds have Donnie dead to rights on the coke: as he sold it to his customers, a busload of nuns was stopped at the light, and they all saw it happen. But the marijuana beef is based on the vague testimony of a demented neighbor with poor eyesight, who – on the witness stand – admits it may have been bales of hay, not marijuana, and the guy unloading it may have been Clarence Crackfiend, not Donnie.

The jury acquits Donnie of the pot, but convicts on the coke.

If Donnie had no prior criminal record, his sentencing range for the cocaine of which he was convicted would be 10-16 months. But at sentencing, the court will also consider the marijuana, if it finds by a preponderance of the evidence that Donnie dealt it. In sentencing law, “preponderance” seems to mean that the prosecutor said it, and that’s good enough for the judge.  With the pot added in, Donnie’s Guideline sentencing range is 51-63 months.

hammer160509The thinking (and I employ that term loosely) is that just because the jury said the government hadn’t proved the pot charge beyond a reasonable doubt didn’t mean that it hadn’t been proved by a preponderance of the evidence. And the lower evidentiary standard, coupled with the loosey-goosey procedural protections of a sentencing proceeding, means that the defendant has little of avoiding a five-year sentence for what should be more like 12 months.

The Prohibiting Punishment of Acquitted Conduct Act, simply enough, would have said in Donnie’s case that the court could sentence on the cocaine, but not the pot.

An identical bill, backed by a long list of conservative and liberal advocacy groups, is being introduced in the House by Reps Steve Cohen (D-Tennessee) and Kelly Armstrong (R-North Dakota).

You may reasonably suspect that this bill, along with the Safer Detention Act and other measures may be rolled together in a larger criminal justice package later this year.

chip201016

Meanwhile, a Washington Post article last week kicked off a series on the horror that is the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Back in 1996, Congress took a chisel to habeas corpus, adopting procedural limitations that make arguing the merits of 2254 and 2255 motions – especially second ones – a byzantine nightmare, a “thicket of real through-the-looking-glass shit,” according to one long-time defense attorney.

The Post series will “look at how the AEDPA was passed, how it works in the real world, the injustices it has wrought and what we can do to fix it. The good news is that much of this can be fixed. Congress could repeal or reform the AEDPA tomorrow. And for all the criticism of his criminal justice record — most of it justified — Joe Biden was one of the most vocal critics of the AEDPA’s habeas provisions. The then-senator warned of dire consequences if those provisions passed. History has proved him right.”

S.601, A bill to amend section 3661 of title 18, United States Code, to prohibit the consideration of acquitted conduct at sentencing (March 4, 2021)

Press Release, Durbin, Grassley, Cohen, Armstrong Introduce Bipartisan, Bicameral Prohibiting Punishment Of Acquitted Conduct Act (March 4, 2021)

Washington Post, It’s time to repeal the worst criminal justice law of the past 30 years (March 3, 2021)

– Thomas L. Root

Some Guys With Clout Propose Sentence Reform – Update for February 18, 2021

Leave a comment

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

THE ODD COUPLE ARE BACK… WITH A WELCOME BILL

Senate Judiciary Committee chairman Richard Durbin (D-Illinois) and Sen Chuck Grassley (R-Iowa), Ranking Republican on the Committee are a political odd couple if ever there was one. Liberal lion Durbin from uber-Democrat Illinois and an octogenarian raised-on-the-farm Republican seem to have nothing in common, but…

oddcouple210219But they are the duo who brought you the First Step Act, and last week they jointly introduced a bill to reform the Elderly Home Detention and compassionate release programs.

elderly180517The Elderly Offender program lets old folks (age 60 and above, so that includes your correspondent) – non-violent criminals whose continued incarceration cost the Bureau of Prison so much in medical expenses – serve the last third of their sentences on home confinement (where they pay for their room, board and medical, not Uncle Sam). That seems like a sweet deal for them and for the government. 

But trust the Bureau to manage to screw up a one-car parade. The BOP decided that two-thirds of the sentence meant two-thirds of the whole sentence, not for the good-time adjusted sentence that everyone ends up serving.  So an aged fraudster with a 100-month sentence – who will serve 85 months with good conduct time figured in – doesn’t get home confinement starting at 66.7% of 85 months, but instead must serve 66.7% of 100 months before he goes to home detention.

That’s not what Congress ever meant, as the House explained to the BOP last year in the HEROES Act (H.R.6800), which modified the statute to say as much). But HEROES never got a vote in the Senate.

elderly190109Now, Durbin’s and Grassley’s COVID-19 Safer Detention Act would clarify that the amount of time an inmate must serve to qualify for Elderly Home Detention should be calculated based on his or her 85% date, not the gross sentence. Additionally, the bill would reduce the minimum sentence for Elderly Home Detention from 66% to 50%, and give inmates who are denied Elderly Home Detention the right of judicial review.

The bill also proposes providing that COVID-19 vulnerability is a legitimate basis for compassionate release, and shortening the period prisoners must wait after submitting requests to the BOP to file with their courts from 30 to 10 days.

Three Republican and three Democrats have joined in sponsoring the bill. Ohio State law professor Doug Berman said last week in his Sentencing Law and Policy blog, “Senators Durbin and Grassley are now the leading member of the Senate Judiciary Committee, which would seem to improve the odds of this bill moving forward.”

Press release, Durbin, Grassley Introduce Bipartisan Legislation to Reform Elderly Home Detention and Compassionate Release Amid COVID-19 Pandemic (February 10, 2021)

Sentencing Law and Policy, Senators Durbin and Grassley re-introduce “COVID-19 Safer Detention Act” (February 11, 2021)

– Thomas L. Root

Congress Leaves Stimulus – and Federal Prisoners – Up In The Air – Update for August 10, 2020

Leave a comment

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

DON’T START TO FEEL TOO STIMULATED JUST YET

Congress left Washington, D.C. last Friday for its August recess without passing a supplemental stimulus bill. The Democrats are pushing the HEROES Act, passed by the House last May, which proposes $3.5 trillion in spending and includes a lot of beneficial provisions for federal prisoners. The Republican-controlled Senate favors the HEALS Act, which includes about $1 trillion in spending but nothing of the sentencing relief measures favored by the House.

senatestimulus200810The HEROES Act provides that the Bureau of Prisons shall send to home confinement anyone who is 50 or over, is within 12 months of release, or has a list of COVID-19 risk conditions. Those conditions, which were just expanded for a second time by the Centers for Disease Control and Prevention on July 30, include pregnancy, heart disease, asthma, diabetes, HIV, cancer, sickle-cell anemia, respiratory problems, obesity, hypertension, or immune system weaknesses. The only exception are people who pose a specific and substantial risk of bodily injury to or to use violent force against another person.

What’s more, courts would be required to reduce sentences for people unless the government can show by clear and convincing evidence that the defendant poses a risk of “serious, imminent injury” to an identifiable person. The Act also incorporates a reduction of the elderly offender home detention program sentence requirement (the subject of a separate bill that has already passed the House, H.R. 4018) to two-thirds of the sentence reduced by good time, instead of the current two-thirds of the whole sentence.

The Health, Economic Assistance, Liability Protection and Schools (HEALS) Act being pushed by the Senate is a mashup of eight other bills, none of which favors prisoners. What’s worse, HEALS’ stimulus package of an additional $1,200 per person is now withheld from people who were prisoners for every day of the 2020 calendar year.

Senate Democrats are trying to get the HEALS Act to require that phone calls from federal prisons remain free during the pandemic, which is a fig leaf (but not much of one) for prisoners.

No one knows whether a final bill, if there even is one, will include any of the House provisions.

housestimulus200810Several groups led by ACLU wrote to Senate and House leaders last week, urging that any stimulus package require the BOP to transfer vulnerable federal inmates to home confinement, clarify the authority of courts to order compassionate release based on COVID-19, and reduce the amount of time courts must wait before considering compassionate release motions during the pandemic. The letter also called on Congress to expand the elderly offender home detention program.

Finally, the House last week added an amendment to the 2021 Commerce, Justice, Science, and Related Agencies Appropriations bill which prohibits the BOP from collecting its 25% fee from halfway house or home confinement inmates. “For returning citizens lucky enough to find jobs, especially in the midst of a national pandemic and economic crisis,” Congresswoman Eleanor Holmes Norton (D-District of Columbia) said, “charging up to 25% of their income in unnecessary fees is not only unfair, it is counterproductive. Returning citizens could far better use this money to save for future rent, child support and fines and fees associated with their conviction, such as restitution.”

H.R. 6800, HEROES Act

S.4318 – American Workers, Families, and Employers Assistance Act

The Hill, Senate Democrats push to include free phone calls for incarcerated people in next relief package (August 6, 2020)

ACLU Leadership Conference, Open Letter to Senate and House Leaders (August 4, 2020)

Press Release, Norton Amendment Prohibiting Bureau of Prisons from Collecting Subsistence Fees from Returning Citizens Passes House (August 3, 2020)

– Thomas L. Root

Congress Lurching Toward Easing Compassionate, Elderly Offender Release? – Update for June 29, 2020

Leave a comment

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

COVID-19 SPURS LAWMAKERS, CDC

corona200313Last week’s upsurge in COVID-19 cases nationally has begun to translate to an increase in Federal Bureau of Prisons inmates with coronavirus. A number that had dwindled last week to 1,256 by last Thursday shot back up to 1,429 as of last night. The inmate death count is 93, with COVID-19 present on 71 prison compounds throughout the BOP system (57% of all facilities).

As of yesterday, the BOP had tested 21,400 inmates, up about 12% from last week. The Bureau is still showing about 30% of inmates tested as positive for COVID-19, and it has only tested about now out of six inmates.

The noteworthy developments in COVID-19 last week, however, were not viral, but rather legislative and medical.

Legislative: Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), principal authors of the First Step Act, last week jointly introduced S.4034, bipartisan legislation to reform the Elderly Offender Home Detention (EOHD) Program and compassionate release.

Sen. Charles Grassley (R-Iowa)
                  Sen. Charles Grassley (R-Iowa)

EOHD, authorized by First Step as part of 34 USC § 60541(g), permits the BOP to place prisoners who are 60 years old or older, convicted of non-violent offenses, and with good conduct in home detention for the remainder of their sentences. Compassionate release, expanded by First Step, permits a court to reduce a prisoner’s sentence for extraordinary and compelling reasons, pursuant to 18 USC § 3582(c)(1).

S.4034, dubbed the COVID-19 Safer Detention Act, would reform the EOHD and compassionate release by:

• Clarifying that the percentage of time an inmate needs to qualify for EOHD should calculated based on an inmate’s net sentence, including reductions for good time. Currently, the BOP charily calculates it as two-thirds of the total sentence, not two-thirds of the 85% of the sentence the inmate actually serves. This change has already passed the House by voice vote in HR 4018, which las been languishing in the Senate since last Christmas;

• Cutting the percentage of time an inmate must serve to qualify for  EOHD from two-thirds of the sentence to one-half;

• Making “old law” federal prisoners (those convicted prior to 1988) eligible for compassionate release;

• Making DC offenders housed in BOP facilities eligible for EOHD;

• Making denial of EOHD release subject to court review; and

• Providing that during the pandemic, COVID-19 vulnerability is deemed a basis for compassionate release, a statutory change that would prevent the government from trying to convince courts (and some have been convinced) that the pandemic is hardly extraordinary; and

• Shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days. Currently, there is no judicial review of a BOP denial of EOHD, and inmates must ask the BOP to file for compassionate release on their behalf, and wait 30 days for an answer before filing themselves.

Sen. Richard Durbin (D-Illinois)
Sen. Richard Durbin (D-Illinois)

It is unclear whether the bill will pass, but sponsorship by a Democrat and Republican increases its odds. Hamodia reported that the bill “will likely be attached it to another bill, such as a stimulus bill or the police-reform bill currently being crafted by Sen. Tim Scott (R-S.C.)”

Medical: The other COVID-19 major development last week was medical. Last Thursday, the Centers for Disease Control and Prevention in Atlanta released updated COVID-19 guidelines to adjust the ages and expand the health problems that could make people more likely to have severe complications. The move comes amid the rising number of younger patients and new studies that show the effects of certain conditions.

The new CDC guidelines are crucial for prisoners, because courts determine whether movants for compassionate release qualify according to whether the inmates have one or more of the CDC risk factors.

First, the CDC walked back the “65 and over” risk factor, which many judges have interpreted as being a hard number, denying any health-concern consideration for a 64-year old but treating a 66-year old prisoner as knocking on death’s door.

death200330Instead, CDC highlights that all ages could catch the coronavirus but effects of the infection may get worse as people get older. “There’s not an exact cutoff of age at which people should or should not be concerned,” Jay Butler, the CDC’s deputy director of infectious diseases, said in a news briefing.

Of more relevance to prisoners, the CDC has found that risks associated with obesity start at a much lower level. The CDC had held that only the morbidly obese (body mass index of 42+) were at risk. Now, the CDC says anyone with a BMI of 30 or more is at risk.

Under the old standard, a 50-year old 6-foot tall man would have to weigh 310 lbs. to be at risk. Now, the same guy only has to tip the scales at 225 lbs. to exceed a 30 BMI.

Other conditions CDC identified as elevating COVID-19 risk included chronic kidney disease, COPD, weaker immune system due to organ transplant, heart conditions, sickle cell disease, type 1 and 2 diabetes, asthma, dementia, cerebrovascular diseases, cystic fibrosis, high blood pressure, liver disease, pulmonary fibrosis, and an inherited blood disorder known as thalassemia. The CDC also added pregnancy to the list.

A number of inmates have been denied compassionate release because judges decided their risk factors – such as hypertension and dementia – did not match the risk factors on the prior CDC list. There is no statutory limitation to the number of times an inmate may file for compassionate release (other than the judge’s ire, perhaps), meaning that the changing COVID-19 risk landscape offers prisoners a new shot at release.

COVID-19 Tracker: The Marshall Project is running a state-by-state COVID-19 prison tracker website, which includes “Federal” as a category. The site charts total cases, inmates and staff currently sick, deaths, and new cases by date.

S.4034, COVID-19 Safer Detention Act (introduced June 22, 2020)

Hamodia, New Senate Legislation Expands Early Release (June 23)

CDC, People of Any Age with Underlying Medical Conditions (June 25, 2020)

Medical Daily, CDC Updates Guidelines On Coronavirus Risk Factors (June 26)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (June 25)

– Thomas L. Root

BOP Directed to Send Some Boomers Home – Update for March 27, 2020

Leave a comment

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

ATTORNEY GENERAL TELLS BOP TO SEND SOME PEOPLE HOME

Attorney General William Barr moved yesterday to release some federal inmates at heightened risk from the coronavirus, but he said no one would be freed immediately under the policy because of the need to make sure prisoners are not spreading the virus into the community.

corona200313Barr told the BOP in a memo to prioritize granting home confinement to inmates who were convicted of lower level crimes, have shown good conduct behind bars and have plans for release that won’t put them and others at greater risk for contracting the virus.

“We don’t want our institutions to become petri dishes,” Mr. Barr said at an unrelated news conference. “We have the protocols that are designed to stop that. One of those tools will be identifying vulnerable prisoners who would make more sense to allow to go home to finish their confinement.”

The attorney general said he asked BOP officials last week about protecting vulnerable inmates and lowering the chances of a serious outbreak by lowering prison populations.

“I asked if it was possible to expand home confinement, particularly for those older prisoners who have served substantial parts of their sentences and no longer pose a threat and may have underlying conditions that make them particularly vulnerable,” Barr said.

Barr told prison officials to give priority to inmates held in low and minimum security facilities; to those who haven’t been involved in violence or gang activities; and to those with low PATTERN scores. Those convicted of serious offenses, including sex crimes won’t be eligible, Barr said.

Barr’s guidance overlaps with a provision in the relief bill the U.S. House of Representatives is expected to pass TODAY, which lets the BOP shift federal inmates into home confinement sooner. Under 18 USC § 3624(c) as currently written, home confinement is capped at six months or 10% of a sentence, whichever is shorter. The bill removes that limit during the pandemic. The moves come as prisons are detecting more cases of the deadly virus.

release160523As of Thursday morning, Barr said six federal inmates and four staffers had tested positive for the virus, prompting the lockdown of several facilities, including ones in New York City, Atlanta and Louisiana. Barr said he’s getting reports of additional cases as well, but didn’t have the details.

As of yesterday’s 3 pm BOP update, the number had climbed to 10 inmates and eight staff, at MDC Brooklyn, MCC New York, USP Atlanta, FCI Oakdale and in halfway houses in Phoenix and Brooklyn. Staff have tested positive at Butner, NC; Ray Brook, NY; New York City; Danbury, CT; Yazoo City, MS; Leavenworth, KS; Atlanta, GA; and Grand Prairie, TX.

Criminal justice experts welcomed the idea of releasing more inmates to home confinement, but hoped the BOP would break its track record of granting release or home confinement in fewer cases than it could. Kyle O’Dowd, associate executive director of policy for the National Association of Criminal Defense Lawyers, told Law360 that while the law and the memo are steps in the right direction, it remains to be seen how the BOP will carry them out.

“My concern is that it won’t be implemented as robustly as it needs to be. There is a history of BOP being pretty conservative in their application of authorities they already have,” O’Dowd said.

Any prisoners moved out of federal facilities as part of the effort would be held in quarantine within the prison for 14 days before release to make sure they are not infectious, Barr’s memo said. Those convicted of sex offenses would not be considered for release, and those serving time for “serious offenses“ would have less chance of getting out, the directive said.

In some cases, vulnerable prisoners might be at less risk in jail than they would be at home, Barr argued. “Many inmates will be safer in BOP facilities where the population is controlled and there is ready access to doctors and medical care,“ he wrote.

Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that

[e]ven assuming that only a very small percentage of prisoners, say, only 1 out of every 15 current federal prisoners, meet the home confinement criteria, that would still mean that well over 11,000 federal prisoners would be eligible to head home to serve out the rest of their sentences. Because BOP has a well-earn reputation for being unwilling or unable to help prisoners get out of federal facilities early, I am not so confident that we will soon be seeing thousands of federal prisoners heading home. But the directive from AG Barr now would seem to make that more of a possibility.

Politico, Feds may send some prisoners home due to virus risk (Mar. 26, 2020)

Wall Street Journal, Barr Tells Federal Prisons to Increase Use of Home Confinement, Fearing Spread of Coronavirus (Mar. 26, 2020)

Law360.com, Federal Prisons Can Send More Inmates Home. Will They? (Mar. 26)

Sentencing Law and Policy, Will thousands of federal prisoners be eligible for home confinement under AG Barr’s new guidelines? (Mar. 26)

– Thomas L. Root