Tag Archives: FIRST STEP Act

Peters May Be The One – Update for March 5, 2024

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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.

PETERS BLUNT WITH SENATORS ABOUT BOP TROUBLES

No one who’s ever had a beef with what I publish in this blog – and there surely are a lot of people who have complaints – has ever accused me of being an apologist for the Federal Bureau of Prisons. But here goes…

cucumber240305Watching BOP Director Colette Peters testify before the Senate Judiciary Committee last week was a refreshing departure from her previous appearances and a downright treat after enduring years of painful appearances by her clueless predecessor Michael Carvajal.

“The Feds survey says the Federal Bureau of Prisons is the worst place to work in federal government, so we have a lot of work to do,”  Peters candidly told the Committee last Wednesday during the hearing Committee Chairman Richard Durbin (D-IL) called in response to a DOJ Inspector General report on inmate deaths in federal prison.

That report, issued two weeks before, found that systemic and operational failures contributed to scores of prisoner deaths over the years. Durbin convened the hearing to underscore the report findings that – among others – suicide accounted for over half of the deaths reviewed by the IG.

Sharing the witness stand with DOJ IG Michael Horowitz, Peters was the target of most of the senators’ questions. But unlike her stumbling performances in prior Congressional hearings, Peters was confident, direct and armed with facts and numbers during the 2-hour session. And when Sen John Kennedy (R-LA) hectored her in one of the most bizarre barrage of questions in recent memory, she cooly stared him down while undoubtedly controlling the urge to ask him who tied his shoes for him every morning.

But back to the hearing.

Paters laid most of the blame for the issues raised in the report on BOP’s chronic staffing shortages. She told the senators that the data on BOP correctional officers are “startling,” rattling off the stats:

One in three have symptoms of PTSD. That means more anxiety, more depression, [and] that means more reliance on substance abuse and higher levels of divorce. Over 90% are obese or in the overweight category, over 90% have hypertension or pre-hypertension… What we’re finding across the country, in some places they can leave the [BOP] and work for state corrections and make two to three times more, let alone the bonuses that we’re battling against at fast food organizations. So it is incredibly difficult… I also want to remind the committee that the average onboarding for law enforcement in this country is 21 weeks [of training] and our officers receive about six. It’s truly unfortunate.

psy170427The IG report found that a shortage of psychiatric services employees “strained the ability of staff” in facilities where prisoners died “to provide adequate care to mentally ill inmates.” This has been a chronic BOP problem, where a dearth of mental health resources has led to many people being underdiagnosed, a 2018 Marshall Project investigation found. In the Senate hearing, Horowitz noted that over 60% of people who died by suicide in federal prisons had been on the Mental Health Care Level 1, meaning the BOP had determined that they did not need regular care mental health care.

Peters and Horowitz both pointed to staffing shortages as a key driver of the problems. A lack of clinical staff like psychologists and corrections officers has been an endemic challenge in many BOP facilities, the Marshall Project reported last weekend.

Horowitz also suggested that the BOP’s problems may be more than just staffing. Talking about contraband, he that “we’ve had a staff search policy recommendation open for years that has not been implemented, the basic search policy for staff coming into the facility, that hasn’t happened, either…” Several senators cited a GAO report last month that the BOP has failed to implement 58 of 87 recommendations on improving restrictive housing (also known as Special Housing Units, or SHUs) practices.

Kennedy tried to beat up Peters with a theatrical performance accusing her of using the First Step Act to release 30,000 criminals, 12% of whom have been recidivists (as though the decision when to release prisoners is her responsibility). Punctuating his questions with dramatic eye rolls and sighs of “Wow,” Kennedy sought to blame Peters for releasing thousands of violent criminals to prey on helpless civilians.

Kennedy: “How many criminals have you released under the First Step Act?”

Peters: “We have about 30,000 individuals that have been released since the passage of the First Step Act.”

Kennedy: “All right, so you’ve released 30,000 criminals under the First Step Act, okay? . . . Before you released them, did you contact any of their victims to say, ‘We’re about to let this guy out’?”

Peters: “Senator, it’s my understanding that that notification happens through the U.S. Attorney’s Office, but I will check into that and get back to you.”

Kennedy: “You don’t know?”

Peters: “Senator, I don’t.”

Kennedy: “Wow. Okay, of the 30,000 criminals you let free, how many of them have come back, have committed a crime again, hurt somebody else?”

Peters: “So, that number is one that we’re still looking at as it relates to the recidivism rate for those that were released on the First Step Act.”

Kennedy: “You don’t have any idea?”

Peters: “No, Senator.”

The implication that Peters and the BOP should be responsible for victim notification – a duty of the US Attorneys offices – or maintaining recidivism records is risable. It’s like asking the Veterans Administration how much ammo the Defense Dept has.

tieshoes240305Beyond that, suggesting that somehow Peters was releasing BOP prisoners on her whim, rather than in response to the court-ordered sentences ending or statutory mandates requires a special kind of ignorance of the law unbecoming of a man who was Phi Beta Kappa and with years of experience as a lawyer. That makes his embarrassing performance all the more puzzling.

He did not embarrass Peters, who was calmly unfazed by his attack. Committee Chairman Richard Durbin (D-IL) finally braced Kennedy: “Don’t put your head in a bag… The First Step Act was a constructive reform of the penal system and I think it was a good idea and I stand by it.”

Sen Cory Booker (D-NJ) said the BOP has simply not been provided enough resources. “I have a lot of frustrations obviously with what’s going on. But I’ve watched you now as a professional struggle mightily to meet the demands that are put on you in a moment where Congress is not giving you the resources necessary to do your job,” Booker said.

Sen Chris Coons (D-DE) told Peters that she has “inherited a deeply troubled institution and I suspect you some days feel like your job is more akin to trying to change the direction of an aircraft carrier than lead an agile and well-resourced organization because the BOP is frankly neither and I appreciate the determination, openness and vigor with which you’ve approached this task.”

Almost half of the suicides took place in a “restrictive housing setting,” the IG Report said. Durbin told Peters that “despite the decrease in Bureau of Prisons total population since you were sworn in as director in August of 2022 the percentage and total of number of individuals and restricted housing is actually higher than it was at that time…”

shucell240212Peters said that almost 40%t of those who lived in restrictive housing did so by their own choice. Nevertheless, she admitted that “everyone who is in restrictive housing has or will suffer from some form of mental or physical damage. I think even those that are agreeing or wanting to be in restrictive housing need to be educated on the fact that that isn’t where they belong and that we need to be able to safely house them in [general population]. Just because they’re volunteering to be there doesn’t mean that the physical and mental wear and tear isn’t happening for them as well.”

“It’s time for solutions and change,” Durbin agreed. “The lives of hundreds of Americans in Bureau of Prisons custody are at risk.”

Roll Call, Federal prison director tells senators about staffing ‘crisis’ (February 28, 2024)

Capital News Service, Deaths in federal prisons draw fire from Senate panel (February 29, 2024)

DOJ, Office of Inspector General, Evaluation of Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

The Marshall Project, How Federal Prisons Are Getting Worse (March 2, 2024)

WHBF-TV, Senate Judiciary Committee grills Bureau of Prisons chief on staffing, inmate deaths (February 28, 2024)

Sen John Kennedy, Kennedy questions Bureau of Prisons on early release of criminals: “You don’t have the slightest idea how many of them committed another crime and came back?” (February 28, 2024)

– Thomas L. Root

‘You Can Earn Them, Just Not Spend Them,’ Said No One To The Senators – Update for January 22, 2024

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JUDICIARY COMMITTEE FIRST STEP ACT HEARING IGNORES HALFWAY HOUSE ELEPHANT

Senate Judiciary Committee leader Richard Durbin (D-IL) presided over a hearing last Wednesday commemorating the 5th anniversary of the First Step Act. The testimony was positive, upbeat, and largely useless.

Cake201130“Five years ago, we wrote the blueprint for reimagining rehabilitation and protecting public safety, and now we know by the numbers that it works,” Durbin said to open the proceeding. “Today, I am looking forward to reflecting on what we can achieve… In order to make our system fairer, we must continue to learn from and [build upon] the proven successes of ‘smart on crime’ policies like the First Step Act. We must provide more opportunities for those who are incarcerated to reenter society successfully, reunite with their families, and contribute to their communities.”

Ja’Ron Smith, former Deputy Assistant for Domestic Policy under Trump, noted that the recidivism rate for First Step releasees is about 37% lower than what it was before the Act passed, used to be. Smith said, “For those released under the First Step Act, the rate is just 125. And technical violations – not new crimes – account for a third of that number.”

J. Charles Smith III, president of the National District Attorneys Assn, said First Step “did a great job of differentiating between good people making bad decisions and bad people making bad decisions. The bad people who make bad decisions stay in jail… The good people who made a bad decision, were convicted for it, [and] went to jail for it, are getting rehabilitated and released earlier as well, as they should.”

Steve Markle, an officer with the National Council Of Prison Locals, lauded the Act but said the Federal Bureau of Prisons 20% staffing shortfall (40% among correctional officers) “not only compromises safety by reducing the number of staff available to respond to emergencies but also hinders the provision of programming for the First Step Act. To fully realize the Act’s potential,” he said, “it is crucial to address the critical staffing crisis within the Bureau. The Council believes that the staffing crisis can only be resolved by addressing the pay band issue.”

Not this kind of halfway house...
Not this kind of halfway house…

It fell to Walter Pavlo, who was not a witness at Durbin’s lovefest, to explain a major glitch in First Step Act’s implementation of the evidence-based programming problem. Inmates are motivated to earn credits because those credits can buy up to a year off their sentences and – if any credits are left after the one-year credit -more halfway house or home confinement. But, writing in Forbes last week, Pavlo observed that inmates are being denied the right to spend those credits because “the BOP does not have room in halfway houses to monitor those who have rightfully earned First Step Act credits. The result, thousands of prisoners languish in expensive institutions rather than being placed in community halfway houses.”

Prisoners with many months of First Step halfway house/home confinement credit are being told by halfway houses that they cannot be accommodated. I know of one prisoner awarded his nine months of halfway house/home confinement credit only to be told that the halfway house could only give him a third of that. The Act states in 18 USC 3624(g)(11) that the BOP Director “shall ensure there is sufficient prerelease custody capacity to accommodate all eligible prisoners.” Pavlo writes, “This is a problem that is going to persist unless something is done.”

The BOP’s Residential Reentry Management Branch administrator said in a speech two weeks ago that halfway houses had a “90-day projection of 99% utilization,” meaning, Pavlo said, “that there was no room to place any more prisoners.”

The BOP knew five years ago that it would have to increase halfway house capacity, but doing so is a bureaucratic nightmare. Because the BOP has relied on halfway house staff to monitor home confinement inmates, the capacity crunch has affected home confinement placement as well. A decade ago, the BOP worked with the US Probation Office to get some prisoners monitored on Probation’s Federal Location Monitoring (FLM) to allow some home confinement prisoners to be monitored by Probation rather than halfway houses. But as of now, only 3.6% of home confinement prisoners are on FLM.

The BOP has an Interagency Agreement with Probation which Pavlo says presents “an opportunity to expand FLM in a manner that is both cost-effective and consistent with the evidence-based practices. However, each district court is responsible for participating, or not, in FLM. Getting every district court to coordinate with the BOP has been an issue for years, as the few prisoners in FLM clearly demonstrate.”

release161117FLM costs far less than a halfway house per diem or halfway house-monitored home confinement. However, FLM is managed by each of the 94-odd federal judicial districts. Some participate with the BOP: others do not. Pavlo said a retired BOP executive told him, “I think the BOP would be receptive to expanding the program and it would resolve many of the issues related to capacity for prerelease custody, but the Courts are going to have to help.”

Senate Judiciary Committee, Five Years of the First Step Act: Reimagining Rehabilitation and Protecting Public Safety (January 17, 2024)

Press Release, Durbin Delivers Opening Statement During Senate Judiciary Committee Hearing on the Fifth Anniversary of the Landmark First Step Act (January 17, 2024)

Forbes, The Bureau of Prisons’ Halfway House Problem (January 16, 2024)

– Thomas L. Root

Last Gift in the Bag: Something For The First Step Act – Update for December 29, 2023

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FINALLY, A CANDY CANE FOR THE FIRST STEP ACT (BUT A LUMP OF COAL TO THE BOP)

I end my year-end emptying of Santa’s bag with this: The First Step Act turned five years old last week.


candycane231229I still wonder how the First Step Act ever passed. Back then, back in those dark November and December days in 2018, I was wondering how the bill would make it through the 115th Congress before the session expired. In fact I wrote its obituary several times in those waning days.

Back then, I publicly lamented the bill’s “dumbing down” to appease the Senator Tom Cottons, Josh Hawleys and Ted Cruzs of the world and wondered how quickly prisoners would see any advantages. It didn’t unfold like I thought it would, but then, who saw the pandemic coming?

First Step emerged from Congress leaner and definitely meaner than it started. Changes in 18 USC 924(c) to limit draconian mandatory sentences for successive violations were made nonretroactive. The list of convictions excluded from getting credit for successful completion of programming intended to reduce recidivism got longer and longer.

But for all of the belly-aching at the time, there has not been a piece of criminal justice reform legislation like First Step for at least 50 years. It’s easy to complain about the failings of the bill, largely due to political horse-trading needed to get the measure passed and Federal Bureau of Prisons administrative misfeasance and malfeasance. For the public, it has been an unqualified success. Without it, the federal prison population would be substantially higher than it is today. What’s more important, as The Hill put it last week, “since the First Step Act passed, thousands more people leaving the federal prison system have rebuilt their lives without reoffending — in fact, the federal recidivism rate has dropped by an estimated 37%t since the law was enacted.”

compassion160124What’s more, nearly 4,000 people received retroactive Fair Sentencing Act sentence reductions, over 4,600 people went home on compassionate releases, almost 1,250 elderly offenders went to home confinement under the 34 USC 60541(g)(5) pilot program, and almost 27,000 inmates have gotten earlier release through FSA credits.

As we approach the 2024 elections, some Republican candidates have been grousing about the First Step Act. Florida Gov Ron DeSantis, who voted for First Step as a Congressman in 2018, denounced the bill last summer as a “jailbreak bill” and said he would get it repealed. But last week, Trump published his campaign’s “Platinum Plan” including a commitment to “continue to make historic improvements to the criminal justice system through common sense actions like the First Step Act” with a “Second Step Act.”

One commentator said that “the Act’s positive outcomes, such as significantly lower recidivism rates among those released under its provisions, demonstrate that public safety reforms are not inherently linked to the recent surge in violent crime… On the other end of the spectrum, we find the likes of Chris Christie and Nikki Haley. Their records of reform in New Jersey and South Carolina, respectively, have been lauded as models of successful criminal justice reform.”

lumpofcoal221215One piece of coal fell out of Santa’s bag along with First Step’s candy cane. The coal goes to the BOP for its disingenuous press release last week that said “the Federal Bureau of Prisons is proud of the work accomplished implementing the First Step Act. Including the support and collaboration of our partners and stakeholders, the dedication and hard work of our employees, and the courage and resilience of the AICs [‘adults in custody’ for you Philistines who still think of them as prisoners and inmates]and their families.”

Anyone who recalls the BOP’s approving 36 out of 31,000 compassionate release requests during the pandemic (an average of 1 in 1,000), its mean-spirited and chary November 2020 proposed rules for FSA credits that were rejected only by new leadership in the Dept of Justice just before adoption a year later, and its ham-handed efforts to timely credit and post FSA credits knows that First Step’s successes have been despite, not because, of BOP administration.

The Hill, Five years on, Congress must build on the First Step Act successes (December 21, 2023)

BNN, The First Step Act: A Pivotal Landmark in Criminal Justice Reform and its Political Implications (December 18, 2023)

BOP, Fifth Anniversary of the First Step Act (December 21, 2023)

– Thomas L. Root

Government Seeks to Bushwhack Disparate-Sentence Compassionate Release Guideline – Update for December 11, 2023

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TIGER TRIES TO EAT ITS YOUNG

Traditionally, the Department of Justice defends federal statutes and regulations from constitutional attack. In fact, DOJ’s role as watchdog over the sanctity of its statutes and rules is so established that the Federal Rules of Civil Procedure require a private litigant to serve the Attorney General in a lawsuit against another private party if the litigant is claiming that any federal statute is unconstitutional.

tigers231211I have seen cases in the past where the government conceded that the application of a statute was unconstitutional – but usually after the Supreme Court has found the statute itself to violate the Constitution. Good examples abound, such as United States v. Brown, a 2nd Circuit summary order noting that where “the underlying crime of violence was a racketeering conspiracy… [t]he Government concedes that the Supreme Court’s recent decision in United States v. Davis… requires vacatur of those counts of conviction [under 18 USC 924(c)]”).

But I don’t recall a case where the government has mounted a defense based on the argument that the federal agency rule applicable to the private party’s claim was void as contrary to federal statute. Until now.

To channel Rodney Dangerfield, this is a case of a tiger eating its young.

The new USSG § 1B1.13(b)(6) – the Guideline that sets out binding Sentencing Commission policy on 18 USC § 3582(c)(1)(A) “compassionate release” sentencing reductions – holds that where a prisoner has

an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law… may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed…

You may recall that when this provision was adopted by the Commission last April, it generated vigorous debate and passed on a whisker-thin 4-3 vote.

retro160110Now, in United States v. Brand, a compassionate release case in the Northern District of Florida, the government has opposed a prisoner’s request for relief from a sentence of stacked 18 USC § 924(c) convictions by arguing that USSG § 1B1.13(b)(6) is an unconstitutional expansion of Sentencing Commission authority because it effectively makes nonretroactive changes in the law retroactive. The thrust of the government’s defense is that Congress did not make changes in 18 USC § 924(c) retroactive when it passed the First Step Act five years ago, that this was a deliberate choice made by Congress, and that the Sentencing Commission’s decision to define the sentence disparity resulting from people sentenced before First Step have dramatically higher stacked 924(c) sentences than people sentenced after First Step as “extraordinary and compelling” is unlawful: “Although Congress has delegated broad authority to the Sentencing Commission, subsection (b)(6) is contrary to the text, structure, and purpose of 18 U.S.C. § 3582(c)(1)(A) and 28 U.S.C. § 994(a), and is therefore invalid.”

I think the argument is strained. Besides trying essentially to engraft Administrative Procedure Act standards (see 5 USC § 706, for instance) onto a judicial agency that is not subject to the APA, I think that the biggest hole in the government’s argument is that – unlike other agency rules – under 28 USC § 994(p), Guideline amendments (and an explanation of why they are being proposed) must be submitted to Congress 180 days before effectiveness to give Congress a chance to modify or disapprove the amendments. Congress’s right to modify or disapprove makes it tough to argue, as the government does, that the Commission’s reading of the compassionate release statute “exceeds the gap left by Congress.” If Congress had thought the new § 1B1.13(b)(6) was overreaching, outside the Commission’s authority, or contrary to the non-retroactivity of First Step, it had six months to say so.

The government relies on Mayo Foundation for Med. Educ. & Research v. United States, but in that case, the court notes that “the ultimate question is whether Congress would have intended, and expected, courts to treat [the regulation] as within, or outside, its delegation to the agency of ‘gap-filling’ authority.” Here, I think, the existence of the six-month review period and Congress’s election not to modify or veto during that period is more than ample evidence of Congress’s intent.

lincolnfool161125But the real danger in Brand is this: The court denied the prisoner appointment of counsel right about the time the government lodged its novel constitutional claim that Federal Rule of Civil Procedure 5.1 requires a party contesting the constitutionality of a federal statute to serve the Attorney General of the United States with notice of the action. Under 28 USC § 2403(a), a court ruling on such a challenge is required to do the same. Upon receiving notice, the Attorney General has a right to intervene as a party in the case and present evidence. Both of these requirements suggest that the government has a compelling interest in defending the sanctity of its rules and statutes.

So what happens when the Attorney General himself contests the lawfulness of a federal regulation, especially where it is a quasi-statute as is a sentencing guideline? Expecting a pro se prisoner to competently defend the lawfulness of a federal rule against the government puts a lot of weight on the shoulders of the inmate. What is more, it is almost certain to result in steamrolling the government’s position into the final order, resulting in the making of a bad ruling out of an unbalanced contest.

Sentencing Commission guideline 1B1.13(b)(6) has the tacit approval of Congress. If any compassionate release defense calls for the appointment of counsel, defending the lawfulness of a properly adopted guideline does.

United States v. Brown, 797 Fed.Appx 52, 54 (2d Cir. 2019)

United States v. Davis, 588 U.S. —, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019)

Gvt Response to Motion for Compassionate Release (ECF 108), United States v. Brand, Case 8:11-cr-380 (N.D.Fl., filed November 17, 2023)

Mayo Foundation for Med. Educ. & Research v. United States, 562 US 44 (2011)

– Thomas L. Root

District Court’s Detailed Compassionate Release Decision Is a Treat – Update for December 8, 2023

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THE HOPEFUL FUTURE OF COMPASSIONATE RELEASE

From the 11th Circuit last week – traditionally, the place where motions for compassionate release went to die – comes a detailed, thoughtful order granting release to a prisoner serving a life sentence for drug distribution.

cocaine170511Bill Vanholten was about 12 years into a life sentence for trafficking cocaine, a sentence he got because he had two prior convictions for selling two dime bags of marijuana, about $20.00 worth, to two undercover cops when he was 19 years old in 1994. In January 2012, Bill was charged with possessing 10 kilograms of cocaine. At the time, a defendant charged with that quantity of cocaine who had two prior drug felonies would get a mandatory life sentence if the government filed what is known as a 21 USC § 851 enhancement with the court.

The government has traditionally used 851 enhancements as a bludgeon to force defendants to cooperate. If the defendant won’t snitch, the government files the 851 and rachets up the minimum sentence dramatically. Bill wouldn’t budge, refusing to identify his source for the coke, so the government filed the 851 notice of two prior drug felonies, a 2006 federal coke charge and one of the “dime bag” offenses. Those two priors mandated a life-without-parole sentence, which, the court said unhappily, it was required to impose.

Six years later, the First Step Act modified the list of prior offenses qualifying for 851 enhancements and lowered the mandatory minimums. After First Step, the “dime bag” offense would not count as a serious drug offense for a 21 USC § 851 enhancement. On top of that, the mandatory minimum sentence for a single 851 enhancement prior dropped to 15 years. If Bill had been sentenced after First Step passed, his court would have only been required to sentence him to 15 years.

compassion160124The First Step Act also permitted defendants to file sentence reduction motions – so-called compassionate release requests – under 18 USC § 3582(c)(1)(A). Before the Act, only the Federal Bureau of Prisons could bring such a request on an inmate’s behalf, an event as rare as a snow flurry on July 4th. All that stood in the way was the Sentencing Commission’s guideline on compassionate release, USSG § 1B1.13. That guideline, written prior to First Step, narrowly circumscribed what “extraordinary and compelling” reason could justify sentencing reduction and required that any reduction be “consistent” with applicable Sentencing Commission policy.

Section 1B1.13 could have been updated by the Sentencing Commission in 2019, but the Commission lost its quorum through the expiration of commissioner terms only a few days after the First Step Act passed.

Most federal circuits recognized the obvious, that the creaking 1B1.13 relic – written long before First Step was even dreamed of – was Commission policy but not “applicable” Commission policy. Only two of the 12 federal circuits remained mired in the past, not permitting any reason for compassionate release not specifically written into the guideline. Bill’s Circuit was one of them.

Four years later, the Sentencing Commission regained a quorum and immediately set to amending 1B1.13. The amendment became effective on November 1, 2023.

sarcodiosis23128In 2022, Bill moved for compassionate release, citing his sarcodiosis, a chronic condition characterized by inflammation in the lungs and other organs, as justification. His court-appointed an attorney to help Bill, who added an argument that the change in the law provided an independent reason for compassionate release. Bill’s lawyer asked the court to sit on the motion until the new 1B1.13 became effective. When it did, the government agreed that Bill’s medical condition established “extraordinary and compelling” reasons warranting release both alone and combined with other factors.

Last week, the court reduced Bill’s life sentence to time served (which, considering Bill’s accumulated good time, now equals 15 years.

The district court’s decision is a model of careful scholarship and proper application of the new 1B1.13. The court relies on Sentencing Commission studies to hold that Bill’s sentence

is an outlier among drug trafficking offenders… Federal prosecutors do not uniformly seek § 851 enhancements, so sentences for offenders like him vary considerably… Some judicial districts see § 851 notices filed for as many as 75% of eligible drug trafficking defendants whereas other districts do not see them filed at all. Since most offenders confronted with an enhanced sentence cooperate, a little less than 4% of eligible defendants ultimately face an enhanced penalty at sentencing… Those in the 4% receive prison terms roughly ten years longer than the average sentence for similar offenders who evaded the enhanced penalty, and twelve years longer than the average for eligible offenders against whom the notice was never filed.

The court candidly admitted that Bill “received one of these unusually long sentences as a de facto punishment for not cooperating.” While the court acknowledged that Bill’s sentence could not be completely compared with a 13-year sentence a cooperator with a similar record had received (because Bill did not cooperate and thus did not receive credit for doing so), it noted nonetheless that the differences between the defendants “do not wholly account for the more than twenty-year disparity between a thirteen-year prison term and life behind bars.”

lock200601The court observed that Bill “received a sentence at least twenty years longer than the fifteen-year minimum Congress now deems warranted for offenders like him. He had a criminal history category of II, comprised entirely of nonviolent offenses, which would warrant nothing close to a life sentence under the guidelines. Whatever ‘significant period of incarceration’ this Court may have settled on at the original sentencing, had it any discretion back then, would not have come within twenty years of Mr. Vanholten’s remaining life expectancy. A difference of a generation between the actual sentence and the sentence Mr. Vanholten would likely receive today no doubt makes for a gross disparity.”

Similarly, the court cited medical studies establishing that sarcodiosis fit the new 1B1.13(b)(1)(B) “extraordinary and compelling” reason that a defendant (1) is suffering from a serious physical or medical condition that (2) substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and (3) from which he is not expected to recover. “Though he is not at death’s door,” the court ruled, Bill’s “medical records show that his sarcoidosis is both chronic and persistent, hurting his lungs and pulmonary function. He is unlikely to recover from it. According to the opinion of medical experts, Mr. Vanholten’s morbidity puts him at a heightened risk of a sudden and serious cardiac event, and a decreased life expectancy,” citing medical journals. At the same time, the court relied on Bill’s records showing infrequent consultation with specialists and noted that the Dept. of Justice “makes no secret that the BOP’s chronic medical staffing shortage has made its ability to deliver healthcare a challenge.”

MerryChristmasBill231208The court released Bill, effective a week from today. Beyond the happy ending for a badly over-sentenced defendant, the court has given prisoners an early Christmas gift, a roadmap for effectively negotiating compassionate release under the new 1B1.13.

United States v. Vanholten, Case No. 3:12-cr-96 (M.D. Fla. Dec. 1, 2023), 2023 U.S. Dist. LEXIS 213764

U.S. Sentencing Commission, Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders (2018)

– Thomas L. Root

No Deference to Flawed BOP Time Credits Rule – Update for October 30, 2023

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BOP SMACKED BY CHEVRON BUT STANDS TOUGH ON DENYING FSA BENEFIT

chevron230508Writing in Forbes last week, Walter Pavlo flagged a First Step Act credit benefit that the Bureau of Prisons has been denying to prisoners except where courts order otherwise. With the Supreme Court primed this term to rein in the Chevron deference doctrine – the judicial rule that courts defer to federal agencies’ interpretation of the statutes they administer – the BOP’s denial of FSA credits until an inmate reaches his or her assigned institution is an excellent case of how even Chevron can ban some BOP overreaching.

The FSA provides that a prisoner “who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits” according to a set schedule. Under 18 USC 3632(d)(4)(B), otherwise-eligible prisoners cannot earn FSA credits during official detention before the prisoner’s sentence commences under 18 USC 3585(a).” Section 3585(a) says a “term of imprisonment commences on the date the prisoner is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.”

But the BOP puts its own gloss on the statute, directing in 28 CFR 523.42(a) that “an eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences (the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will be served).”

Any prisoner who has spent weeks or months between sentencing and final delivery to his or her designated institution can see that the BOP rule can create months of FSA credit dead time.

Ash Patel filed a petition for habeas corpus seeking FSA credit from his sentencing in September 2020 until he finally reached his designated institution on the other side of the country in April 2023. The BOP argued his FSA credits only started in April 2023, stripping him of 2.5 years of earnings. The agency cited 28 CFR 523.42(a) and urged the Court to apply Chevron deference, accepting its interpretation of when FSA credits start.

ambiguity161130The Court didn’t buy it. “Because Section 523.42(a) sets a timeline that conflicts with an unambiguous statute, it is not entitled to Chevron deference and the Court must give effect to the statutory text,” the judge wrote, citing Huihui v. Derr where the court held that while the prisoner was not eligible “before her sentence commenced, [] under 18 USC 3632(d)(4)(B)(ii), her ineligibility ended the moment she was sentenced… because FDC had already received her in custody.”

Pavlo cites Yufenyuy v. Warden FCI Berlin, perhaps the first decision to refuse to give Chevron deference to the BOP’s incorrect 28 CFR 523.42(a) rule. He rightly complains that perhaps thousands of other prisoners ‘who were sentenced and have months of time in transit getting to their final designated facility… are currently not getting those credits.” Pavlo notes that “prisoners who have a disagreement with the BOP have access to an administrative remedy process to air their grievances. However, those in the chain of command at the BOP who would review those grievances have no authority within the BOP to award these credits as it deviates from the BOP’s own Program Statement, which remains unchanged… Currently, the only solution is for every prisoner who has this situation is to exhaust the administrative remedy process, something that could take 6-9 months, and go to court to find a judge who agrees with [Yufenyuy], which could take months more.”

Exhaustion170327Not necessarily. The Huihui v. Derr Court excused exhaustion because “further pursuit would be a futile gesture because… there is an error in [the BOPs] understanding of when Petitioner can begin earning credits under 18 USC 3632(d)(4)(B) and 3632(a)… The Court thus concludes that any further administrative review would not preclude the need for judicial review. The Court thus excuses Petitioner’s failure to exhaust her administrative remedies.”

Forbes, Bureau of Prisons’ Dilemma On First Step Act Credits (October 27, 2023)

Patel v. Barron, Case No C23-937, 2023 U.S. Dist. LEXIS 174601 (WD Wash., September 28, 2023)

Huihui v. Derr, Case No 22-00541, 2023 U.S. Dist. LEXIS 106532 (D. Hawaii, June 20, 2023)

Yufenyuy v. Warden FCI Berlin, No. 22-CV-443, 2023 U.S. Dist. LEXIS 40186 (D.NH, March7, 2023)

– Thomas L. Root

Five Years Later, BOP Still Doesn’t Have First Step Act Right – Update For October 27, 2023

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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.

FIVE YEARS SHOULD BE LONG ENOUGH TO GET FIRST STEP ACT RIGHT

firststepB180814The First Step Act, including its innovative system for granting credits to inmates who complete programs designed to reduce recidivism, is 5 years old in less than two months. But it took three years of fits and starts before the Bureau of Prisons pretty much had a final set of rules for administering FSA credits (after a proposal that was as miserly as the final rule was generous hanging around for a year of comments).

Now, almost two years later, the BOP is still muddled in trying to launch a computer program of forward-looking calculation for FSA credits that predicts when a prisoner will leave BOP custody for halfway house or home confinement (HH/HC). The agency still lacks a comprehensive list of what types of inmate employment or education constitutes “productive activities,” which are supposed to continue a prisoner’s earning of FSA credits. And the BOP continues to deny HH/HC placement because it lacks resources, despite First Step’s requirement that inmates be placed to the full extent of their FSA credits.

Writing in Forbes last week, Walter Pavlo observed that “prisoners, mostly minimum and low security, who are eligible for these credits have done their best to try to participate in programs but many complain of a lack of classes, mostly due to the challenges the BOP is having in hiring people. However, beyond that, the BOP has been liberal in accepting that the BOP does not have the staff to fulfill the demand for classes and credits are being given anyway, mostly for participating in productive activities, like jobs. This misses the primary mission of programming meant to have a lasting, positive influence on prisoners after they leave the institution.

“Now,” Pavlo said, “nearly two years since the Federal Register’s Final Rule in January 2022, the BOP still has no reliable calculator to determine the number of FSA credits a prisoner will earn during a prison term… One of the last remaining issues is for the BOP to have a forward-looking calculation for FSA credits that predicts when a prisoner will leave BOP custody. It sounds easy, but the BOP’s current computer program can only assess credits after they are earned each month, and it usually takes a full month after they are earned for them to post. The result is that each month, prisoners’ families look at BOP.gov to see if there are indeed new credits and if the amount they are expecting matches what is expected. This moving date is important because it can also determine when prisoners can leave prison for home confinement or halfway house. The result, prisoners are staying in institutions, institutions that are understaffed, for days, weeks and months beyond when they could be released to home confinement or halfway houses. This is defeating one of the other initiatives of the First Step Act and that was to get more people out of decaying BOP facilities and into another form of confinement that is far less expensive.”

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

First Step is important to Congress. When BOP Director Colette Peters appeared for a Senate Judiciary Committee oversight hearing chaired by Senator Richard Durbin (D-IL) last month, “her answer failed to address the continued shortcomings of the implementation,” Pavlo said. “There are thousands of prisoners, many minimum security, who are stuck in prison because of a lack of a computer program that simply calculates forward-looking FSA credits…This computer program was actually alluded to in declarations the BOP submitted to federal courts in 2022 stating that it would be implemented ‘soon.’ Over a year since those declarations, there is still no program to accurately calculate when a prisoner will leave an institution.”

The BOP is facing a substantial halfway house bed shortage as well. There is also the issue of insufficient halfway house space. Unlike HH/HC placement for prisoners without FSA credits, 18 USC 3624(g)(2) does not give the BOP discretion. Subsection 3624(g)(2) says that if a prisoner is eligible (has FSA credits not already applied to a year off of the sentence), he or she “shall be placed in prerelease custody as follows,” describing halfway house or home confinement. There’s nothing hortatory about it. The BOP is required to put the prisoner in HH/HC. Excuses not accepted.

halfway161117Pavlo argued that “the only way to address this situation is to implement a task force to move prisoners through the system and catch up from the failures of the past few years. Systemic challenges of shortages of staff and augmentation which takes away staff like case managers from their jobs, cause continued problems. The BOP needs to get caught up, move prisoners along and develop reliable systems that will assure that the FSA is implemented as the law requires. While the BOP has made great strides, these last challenges of full implementation can be achieved by focusing a concerted effort on three issues; fixing the calculator, assessing the prisoners who will soon be going home as a result of that computer fix, and expanding halfway house capacity to handle them.”

Forbes, Time For A Bureau Of Prisons Task Force To Implement The First Step Act (October 16, 2023)

– Thomas L. Root

First Step’s Coming Birthday Reason for Hagiography – Update for October 19, 2023

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FIRST STEP ACT TURNS FIVE YEARS OLD

Cake201130The anniversary is still 63 days away, but a couple of early hagiographic articles on the First Step Act’s 5th birthday are already being posted.

The Crime Report said last week that First Step “now allows federal inmates to significantly reduce their actual penal custody time. That fits into the primary goal of The Act, which is to reduce recidivism among nonviolent offenders through greater emphasis on rehabilitation in the Bureau of Prisons.”

The philanthropy Arnold Ventures interviewed Colleen P. Eren, Ph.D., author of a new book, Reform Nation: The First Step Act and the Movement to End Mass Incarceration. She noted that “33,000 people have been released from federal prison so far under the First Step Act, according to FAMM. The recidivism rate for those people is 12.4% compared to a rate of around 43% for others exiting federal prison. The First Step Act made President Obama’s Fair Sentencing Act of 2010 retroactive, resulting in the release of around 4,000 people who were sitting in prison under the 1987 crack cocaine sentencing disparity. It also made it easier to get compassionate release, and a total of 4,500 people have been released under that change.”

compromise180614First Step was far from perfect, but Dr. Eren says that’s more of a feature than a bug. “The First Step Act is an example of people not letting the perfect be the enemy of the good. There were differences to negotiate between conservative reformists and progressive reformists. Conservatives think that the incarceration system went too far but that it’s not fundamentally flawed… Left-leaning organizations refused to give their support until sentencing reform was included, which was significant… The left had to accept the PATTERN risk assessment – They said it was racist, reinforced existing disparities, and didn’t go far enough toward ending mass incarceration. It was a classic reform-versus-revolution tension.”

Five years into the Act, the BOP has yet to work out properly accounting for FSA credits and placing prisoners with credits in halfway house and home confinement appropriately. But as frustrating as the implementation of First Step has been, life before the Act passed was much bleaker.

The Crime Report, The First Step Act: A Five-Year Review and the Path Forward (October 10, 2023)

Arnold Ventures, Historic Bipartisan Justice Reform Turns Five (October 6, 2023)

Colleen Eren, Reform Nation: The First Step Act and the Movement to End Mass Incarceration (Stanford Univ Press, Sep 2023)

– Thomas L. Root

Elderly Offender Program Dies – Update for October 10, 2023

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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.

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

Hair-Splitting on § 924(c) Sentence Stacking – Update for September 28, 2023

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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.

6TH CIRCUIT REFUSES EN BANC ON STACKED § 924(C) SENTENCES

Sentencestack170404Tim Carpenter used a gun in a string of Hobbs Act robberies. He ended up with 105 years when he was sentenced before the First Step Act, which reduced mandatory minimum sentences for stacked 18 USC § 924(c) offenses. But Tim’s sentence was vacated because of errors, and he was not resentenced until after First Step became law.

First Step, if applied to Tim’s sentencing, would reduce his § 924(c) mm sentence from 105 to 25 years. But despite the First Step’s retroactivity provision extending its benefits to defendants awaiting sentencing, and despite Tim’s pre-FSA sentence being thrown out, a three-judge panel held that Tom had to be resentenced under the old version of the statute.

First Step § 403(b) provides that the new § 924(c) sentencing statute would apply to offenses committed before the Act “if a sentence for the offense has not been imposed as of such date of enactment.” The Circuit believes that if a defendant was sentenced for a § 924(c) offense before December 2018 – even if the sentence was vacated later – any new § 924(c) sentence would have to be imposed under the old law.

Last week, the 6th denied en banc review, although six judges wanted to revisit the issue. Judge Bloomekatz spoke for all dissenters in an opinion that some commentators think was an effort to get at least one Supreme Justice’s attention:

The real human costs that this esoteric legal issue presents also should not be overlooked. Because our circuit has split from every other to reach this issue, defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states. Timothy Carpenter proves this point. His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the 3rd, 4th, and 9th Circuits. The resulting sentencing disparity… should give us pause enough to consider the decision as a full court. Indeed, the circuit split, the federal government’s position, the dissent from then-Judge Barrett in United States v. Uriate, and the dueling opinions on this en banc petition underscore that the scope of the retroactivity provision is far from clear.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said, “I am pretty sure this Timothy Carpenter has already served 10+ year in prisons, and so may soon be eligible for a reduction in sentence under the ‘unusually long sentences’ criteria in the U.S. Sentencing Commission’s proposed new [1B1.13] ‘Compassionate Release’ policy statement.”

circuitsplit220919In his legal blog, UCLA law prof Eugene Volokh said of the opinion, “The en banc denial—which garners two dissentals—solidifies a circuit split, so keep an eye on this one.”

United States v. Carpenter, Case No 22-1198 (6th Cir., September 18, 2023)

United States v. Uriate, 975 F.3d 596 (7th Cir. 2020)

Sentencing Law and Policy, Notable debate among Sixth Circuit judges as court turns down en banc review of “resentencing retroactivity” after FIRST STEP Act (September 20, 2023)

The Volokh Conspiracy, Short Circuit: A Roundup of Recent Federal Court Decisions (September 22, 2023)

– Thomas L. Root