Sentencing Commission Updates

Sentencing Commission Lists “Economic Crimes,” “Mandatory Minimums” as  2015 Priorities

 

By Derek Gilna

 

            The U.S. Sentencing Commission is an interesting body.  Created by Congress to deal with complex sentencing issues, with a minimum of legislative direction and oversight, it now enjoys wide discretion to make serious changes to sentencing law,  subject only to a veto by Congress  prior to the effective date of any changes.  The most recent two-level drug reduction is a perfect example; Congress could have derailed it, but chose not to.  That’s a nice way to pass the buck and avoid any blow-back for being “soft on crime.”

            That’s what makes the Commissions Fall press release even more significant.  The press release says: “only Congress can make the more fundamental changes needed to fix the disparities and problems the Commission has found some mandatory penalties to (reduce) federal prison populations and costs.” 

What this really means is that the Commission recognizes that Congress as currently constituted is probably incapable of decisive, prison-emptying actions, but in the meantime, we at the Commission will nibble around the edges, but not enough to have you slackers in Congress veto what we doing.

            Drug offenders got their reductions in 2014, and in 2015 it will be the white-collar and mandatory minimum offenders’ turn, the Commission appears to be saying.  The Commission also says that one of its priorities is to “focus on fulfilling its statutory mandate to work to reduce overcapacity in federal prisons.”

            The Commission noted that it received  thousands of public comments, which you can believe were overwhelmingly in favor of sentence reduction. Here’s hoping the Commission follows through on this and other initiatives in the New Year.  My educated guess is that they will.

Mass Imprisonment and Poor Medical Care A National Scandel

Abuse of Elderly and Sick in Prison A Major Issue in Bureau of Prisons

 

By Derek Gilna

 

            We all read about the “cushy” and “country club” federal prisons growing up, where doing time was easy and worry-free.  The next thing we heard about was the

“fantastic” medical care that federal prisoners receive from a benevolent federal government.  All of this was very clever public relations to provide political cover for the “War on Drugs” for the past decades.  The media has now begun to expose these lies.

            I wrote about George Will last week, who shone a bright spotlight on a “political system that takes bizarre delight in creating new crimes for enforcement,” and stated that “American government is increasingly characterized by an ugly and sometimes lethal irresponsibility.”

            Nowhere is that irresponsibility more on display than in the prison “medical system.”  Allow me to quote an email from a female prisoner at the Carswell, Texas, BOP “medical center.”     There, one prisoner wrote, “There have been so many deaths and hardly any releases for compassionate release cause of illness…such as terminal cancer… (prisoners) usually die before anything gives and never make it home.”  “This,” she said, “is what our government does to families- destroys children’s lives by taking their parents away from them…”

            Even one convicted of wrongdoing does not deserve to die in prison.  Medical science has advanced to the point where more terminal illnesses can be diagnosed in enough time that a compassionate release system could easily release an incapacitated prisoner to his family prior to his passing. The Bureau of Prisons needs to properly implement the policies that already exist to speed up this process. Not only would they be showing actual concern for the welfare of their prisoners, but they would also save millions of dollars that could be devoted to providing vocational training to reduce recidivism.

 Compassionate release is a difficult process to carry out on your own, but you are not alone.  I’ve done them, successfully.  Can I do one for you or one of your friends in the institution that is hurting and deserves mercy?  What about the ones who have already been injured by medical negligence or neglect?  It would be my privilege to assist you.

 

Derek Gilna

dgilna1948@yahoo.com

113 McHenry #173

Buffalo Grove, Il  60089

 (847) 878-0160

Torture Report Builds Criminal Reform Momentum

Torture Report Builds Pressure on Criminal Justice Establishment

 

By Derek Gilna

 

            As a native of Chicago, born on the South Side no less, I have always had a rather jaded view of the criminal justice system, even as I worked as a Consumer Protection Attorney for the State of Illinois, protecting defrauded consumers from crooked businessmen.   While in private practice I did nothing but defense work, once again bucking the power brokers one case at a time.  However, like many others in the legal profession, I did not recognize the creeping and (now) obvious over-incarceration of not only people of color, but also everyone else out of what the media felt was mainstream. However, the media has now begun to recognize the truth, and  pressure is building for change.

            However, the times have changed and so have I, and I am not alone.  Over the past decade I have worked to redress the balance in the justice system, as a prisoner rights advocate, post-judgment specialist, and a writer for prisoner rights publications. However, in the past two or three years I have been pleasantly surprised how momentum has grown for reform on both the state and federal level.

The recent publicity from Ferguson and New York City has awakened the general public to the fact that the police and criminal justice system is populated by too many individuals who feel that they are above the law, and that their misdeeds have no consequences. The general public has been exposed to not only this, but also rampant IRS misconduct and other evidence of government incompetence and overreach, and rocked by the disclosures that the same government that spies on us on a daily basis has tortured people, according to no less an authority than the former POW Senator John McCain.  Just yesterday, George Will, a noted conservative journalist, was quoted on national television saying that the issue is not just torture in Guantanamo but in American prisons! (How is denying proper medical care in’ the greatest country in the world’ not torture?)

The national discussion has changed.  People are no longer buying the “tough on crime” mantra.  For those already on the inside, however, the message appears to come a bit late, but it is no time to lose hope.  Judges, prosecutors, and prison officials also read the news and watch television.  Now is the time to take action on your own quest to gain your freedom.  Contact me if you feel that you would like to try.  Thank you.

 

Derek Gilna, 113 McHenry, #173, Buffalo Grove, IL.  60089.

(847) 878-0160 owever, times have changed and so have I

BOP Medical Care is No Joke - Or is it?

Tyleno Hailed As New Cancer, Dandruff and Baldness Cure, says BOP

 

(A Parody)

 

By Derek Gilna

 

            In a medical breakthrough, the Bureau of Prisons, known for their cutting-edge medical treatment hailed by medical experts such as federal judges and federal prosecutors, as well as by numerous publications from prison guard organizations in  Texas, Florida, and Louisiana, generated real excitement in the medical community with its most recent announcement.  In a wide-ranging (and mandatory) study covering over 200,000 captive participants, the BOP announced that based upon its years of treatment experience that Tylenol and bed rest has shown real progress in treating all forms of cancer, not to mention dandruff and male pattern baldness.

            Senators Grassley, Cornyn, and other elected officials who have continued to push back against reforms of mandatory minimum sentences, pointed to the results of the study as proof that “mandatory minimum sentencing works” and is “a real health benefit to those who receive such long sentences.”  “The BOP has shown real courage in sticking to the Tylenol regimen,” they said, even in the face of statistics from other research bodies that call the BOP study “junk science.”

            Not so, say the BOP doctors and administrators, who point to statistics that treating serious illnesses with Tylenol has dramatically reduced BOP medical costs, permitting them to continue to incarcerate older and sicker prisoners, for whom a BOP sentence statistics show generally means a reduced life span or even death. 

 Treatment times for cancer patients have dropped dramatically, since most prisoners pass away prematurely.  “The best part,” say BOP officials, “is that we have the prisoners buy Tylenol off the commissary, if it is open.” One prisoner noted that, “When I came in I thought that getting BOP medical treatment was better than living under a bridge.  Now that bridge is looking pretty good.”

 

 

BOP medical treatment is no joke. It is structurally unsound and getting worse as the prison population ages and more prisoners need medical treatment, which there is little funding to provide.  Prisoners are suffering and dying unnecessarily.  It is time to take action.  Your life may depend upon it.  If you enjoyed this newsletter, pass it on.

 

(847)-878-0160

 

113 McHenry Rd

#173

Buffalo Grove, IL 60089

Federal Bureau of Prisons Medical Care: A Follow Up

How Long Can the BOP Avoid Responsibility for Inferior Medical Care?

 

By Derek Gilna

 

            As you know, I have previously written about substandard BOP medical care, which has cost untold suffering and even death from inexcusable neglect.  It is clear that the BOP is facing a potential flood of litigation and damage claims for this cold and calculating practice, attempting to balance their budgets by failing to provide proper health services to their prisoners.  No story that I have written has received more heartfelt response than this one.

More and more federal class actions have been filed against state DOC’s, and some have settled, including one involving the state of Arizona. According to the American Civil Liberties Union (ACLU), which filed a federal class action lawsuit on behalf more than 33,000 in the Arizona Department of Corrections, the Arizona DOC has one of the “worst prison health care systems” in the country.

Dr. Robert Cohen, a medical expert who has himself overseen prisoner health care systems in the past, found that at least 13 of the 29 prisoners whose cases he reviewed received “grossly deficient” care. He cited one instance of a prisoner who requested HIV testing twice being denied and later dying of AIDS, and another instance where a prisoner passed away after being refused treatment for Hodgkin’s lymphoma, a result he termed, “shocking.”

   Prisoners who complained were told to “be patient...it’s all in your head.. (or) pray…”  The Arizona complaint continued: “Defendants are deliberately indifferent to the substantial risk of pain and suffering to prisoners, including deaths, which occur due to Defendants’ failure to provide minimally adequate health care, in violation of the Eighth Amendment.  Does this sound familiar?  He could also be describing the current condition of medical care in the BOP.

Obviously, the BOP is playing the odds, hoping that you will give up, not assert your constitutional rights, or become too ill or infirm to advocate for yourself.  I am telling you that it is not impossible to get relief.  It may take months, and yes, it may take some money, but there are avenues for relief, if not outright release.  Remember, the Americans with Disabilities Act still applies to you even if you are in prison.  The courts are not ignorant of the BOP health care fiasco, and more and more cases are wending their way through the system.  It’s not too late to save your life and health.

 Oh, and the answer to the question I asked in the beginning?  The answer is: as long as you let them get away with it.

The Sad Truth About BOP Medical Care

Justice Demands that Prison Populations Drop and the Quality of Medical Care Increase

 

By Derek Gilna

 

            The Justice Department’s Inspector General recently stated what we already know:  the BOP, due largely to overcrowding stemming from over-sentencing, is in serious crisis.  Although his report dwells on the “safety and security” factors related to that overcrowding, I prefer to focus on the human suffering and death causes by the BOP under funding or in some cases just ignoring the serious issues it faces in health care and mental health treatment.

            “From … 2009 to…2013, the population of sentence inmates 50 and over (who generally require more medical care than younger inmates) has increased 25 percent…the BOP spent   more than $1 billion on prisoner health care in 2013?”  That figure of a billion dollars will come as a great surprise to BOP prisoners with significant medical and mental health issues that are not being addressed.  (I would like to have the contract for supplying the BOP with Tylenol-the go-to drug for every malady, including internal bleeding and heart attack, according to the BOP medical staff).

            That’s why I have made it my mission to seek justice for the prisoners and their families caught in the web of deception that constitutes BOP medical care.  Too many prisoners die of unnecessarily in federal custody for lack of prompt medical attention.  Too many prisoners suffer from untreated mental health issues that could be treated while they are in custody, and lead to a more successful reentry into society.

            Not all of these problems are completely the fault of the BOP; Congress, the Justice Department, and the Courts all share part of the blame.  Only recently have some officeholders, such as Attorney General Holder, stepped forward to try to correct some of these problems that often mean that a sentence to BOP imprisonment is a de-facto death penalty.  The tens of thousands of ill federal prisoners and their families demand justice, either Civil Rights actions or Compassionate Release.  The good news is that you do not have to face this challenge alone.  It is time to take action, before it is too late and before you are too ill or infirm to care.  Contact your families and tell them the truth about BOP medical care.

 

Derek Gilna (847) 878-0160

113 McHenry #173

Buffalo Grove, Il  60089

           

More Illegal Government Surveillance Exposed

Yet Another Illegal Government Surveillance Program Exposed

 

By Derek Gilna

 

            It has been an open secret that law enforcement has often tracked suspects by targeting their cell phones, a technology that relied upon electronic tracking via devices placed in government vehicles.  The revelations of defector and former National Security Agency contractor Edward Snowden also brought to light the fact that the federal government has been listening in on cell phone conversations without proper warrants for years, much to the embarrassment of the federal government.

            The newest government surveillance program involves using “Dirtboxes” placed on government planes that crisscross the country, looking for “pings” disclosing the location of suspects, including drug suspects, not just terrorists, whose cell phone numbers have been entered into a master database.  (The proper name for the device is a DRT, short for Digital Receiver Technology.)

            Recent court cases have shown that the Supreme Court is increasingly wary of this enhanced warrantless surveillance of American citizens.  It has struck down convictions in cases where agents placed GPS devices on suspect’s vehicle to track its whereabouts without warrants.  Needless to say, it is very likely law enforcement will go to any lengths to conceal this illegal surveillance not only from the defendant and his attorney, but probably also government prosecutors.

            I have one of those cases pending at this time, where the judge has granted a delay in the progress of the case while a Freedom of Information Request (FOIA) is being processed by the Justice Department and the DEA.  The client’s lawfully-operated truck was stopped on a country road without any reason given, and within minutes dogs and a drug task force, complete with sniffer dogs, materialized on this lonely country road to search for drugs.  Do you believe in coincidences?  This case continues.

            Most drug cases rely upon the testimony of informants, since the government rarely seems capable of finding illegal drugs without inside help.  However, there are cases out there where the circumstances of the arrest are more than a bit suspicious, leading one to believe that illegal government surveillance was used to arrest and convict.

            Once again, to gain relief, you are by now well aware that you need someone on your side that is conversant with the newest developments in criminal defense strategy and opportunities for sentence relief.  Were you the victim of illegal surveillance?

 

dgilna1948@yahoo.com           clemencyrelief.com

BOP Medical Care Under Scrutiny

Poor Medical Care in Bureau of Prisons Inefficient, Costly, and Deadly

 

By Derek Gilna

 

No one who is familiar with the sorry state of medical care in the BOP should be surprised that  the U.S. government mishandled the Ebola crisis.  Like the BOP, when the Ebola crisis arose, there was no one in charge, there had been  limited or no training of people responsible for treating it, no accountability for obvious failures of planning and treatment, and more time spent on covering up the problem instead of actually finding a solution.  At the moment, America is apparently Ebola-free, but no thanks to the government.

            Unfortunately, for confined prisoners in the BOP, as well as numerous state and county correctional institutions, the horror of poor medical care continues.  Instances of serious and preventable suffering, illness, injury, and death are common in every institution.  It is evident from an objective analysis of the BOP medical system that the mission of the agency is to give the minimal amount of care necessary to avoid being sued, without regard for the long term consequences of the health of the prisoner. 

            How many times will the BOP prescribe Tylenol and a few days off, for dizzy spells, loss of consciousness, and complaints that indicate the prisoner has serious medical problems that need a proper diagnosis?  How long with people who were diagnosed with cancer before they even entered the system be denied treatment?  How long will the BOP continue to deny compassionate release to aged and infirm prisoners who could no re-offend even if they desired to do so?

            The solution is relatively simple.  The BOP must fast-track the release of its elderly prisoners, and must also facilitate the placement of them and other eligible prisoners into the Medicaid system. (This is already happening on the state level.) They must reform the current release and re-entry system to find these people a place to live.  They must stop wasting money confining people who have terminal medical conditions that they clearly resent having to treat.

            The BOP won’t do this because it is obvious or the right thing to do.  After all, as long as Congress keeps giving them money to spend on poorly managed medical care, they will continue to waste it. No, you will have to stand up for yourself, and have the help of someone that understands the system, who has been down this road before, someone who has actually completed a compassionate release, someone who has sued or researched and facilitated lawsuits against the federal government for not years, but decades. To get their attention, you will have to sue.  Nothing will happen until you take action.

Remedies for BOP Prison Medical Staff Negligence

Legal Remedies Exist for BOP Medical Malpractice

 

            As anyone who has attempted to be fairly and properly treated by the BOP’s health-care system knows, it can be a frustrating and time-consuming experience.  Administrators seem to feel that many ailments can be cured by two or three days off of work and a Tylenol tablet.  Every year, many prisoners die needlessly in BOP custody, suffering the final indignity of being shackled, per BOP regulations, for their final ride to an outside medical facility to be declared legally dead.

There are remedies for BOP medical mistreatment, as happened recently in a little noted decision by the U.S. District Court for the Western District of Washington, which found deliberate indifference in denying a BOP motion to dismiss.  The court noted that the prisoner-plaintiff had well-documented his medical history, and received a diagnosis of a latent TB illness, which went properly untreated, violating the Eighth Amendment prohibition against cruel and unusual punishment. This as we all know is not an isolated incident;  unnecessary deaths occur every day in the prison system.

In Tennessee recently almost $750,000 was awarded in a case involving the death of a newborn where the mother entered the system pregnant and failed to get the medical care that she needed.  Guards were more interested in getting their “Count” right than in rushing her to the hospital to give birth.

 Tuberculosis has been widely recognized as a serious and potentially deadly disease when introduced to the high-density environment of prison life. There are many others, including MRSA. The court rejected the BOP defense of qualified immunity, finding that, “the relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable office that his conduct was unlawful in the situation he confronted.”  Here, where BOP procedures and accepted medical practice were not followed, the prisoner lawsuit was permitted to continue.

The best way to receive appropriate medical treatment in prison is to document, document, document.  Emails regarding medical tests and treatment must be kept and responded to by medical staff.  Be persistent in your complaints, and send copies of your medical records, which you are free to request at any time, home to your family or friends.  Finally, if all else fails, contact me immediately at (847) 878-0160.  I can get you the help you need and if I can’t I will tell you who can help you, free of charge.

           

 

Sentencing Relief Update

Post-Election Period Will Bring Big Changes on Sentence Relief

 

By Derek Gilna

 

            After the November election, there is a strong possibility that sentence relief will be on the agenda.  The bills currently in Congress, which, like all pending legislation have languished because the members of Congress are more involved in keeping their jobs (getting re-elected), than helping prisoners, should be given prompt consideration for possible action.

            All of the bill’s sponsors either have “safe’ seats or not up for reelection in this election cycle, so the usual political factors will not be crucial in whether these bills pass or not.  Having been in Washington recently on a habeas case, I can tell you that there is little or no respect for the BOP either in Congress or in the DC courts; the environment for relief has never been better. It appears that white-collar prisoners will also be getting some relief at the hands of the Sentencing Commission in the next cycle, and we will pass on information on that when it is confirmed.

            One of the things that shocked me is that more people are not taking advantage of compassionate release opportunities. Recently a report has been released by the United States Inspector General outlining the failure of the BOP to release prisoners in a timely fashion under its “Compassionate Release Program.” I’m sure some of you have seen notices about compassionate release posted on bulletin boards in the units, along with other BOP news, and you might not have paid much attention to it.

            However, as with many BOP “programs,” there’s one problem:  hardly anyone is getting taking advantage of the program. However, I recently successfully completed one.  This is ot a process for inexperienced individuals. According to the Inspector General, who works independently of other government agencies, and certainly not for the Justice Department, only 142 prisoners were released under the program, over a five-year period. This despite the fact that studies show that these prisoners almost never reoffend. This is out of a prisoner population of around 220,000 in the federal system, many of whom are ill, and not receiving proper medical care.

                        For many years, when the federal government and the BOP was flush with cash, this was not an issue. Now, with money having to be diverted from other federal agencies to the BOP to keep guards on the job, Congress has made it their business to get involved.  They don’t want to fund the BOP’s obvious and well-publicized inefficiencies in releasing prisoners with expensive health issues that cost the government millions of dollars a year.

                        Perhaps you or someone you know qualifies for this program.  I would welcome the opportunity to represent you in this endeavor to win an earlier release, as well as explore other options for release.

 

 

 

New Holder Announcement Will Benefit the Accused

Holder Orders U.S. Attorneys:  Do Not Enforce Appeal Waivers

 

By Derek Gilna

 

            In another major blow for criminal defendants’ rights, United States Attorney General Eric Holder followed up his recent announcement restricting the usage of 851’s to coerce plea bargains with an announcement directing, not suggesting, that all U.S. Attorneys refrain from asking for appeal and habeas waivers in plea agreements.  Additionally, they are ordered to refrain from enforcing said waivers in the case of those already executed and incorporated in judgment orders. The playing field is getting even more level.

            Holder has finally adopted (without using the words) the position that appeal waivers are just an extension of prosecutor overreach, and although they were not illegal nor an example of misconduct in the past, clearly constitute an abuse of a defendant’s constitutional guarantees.  It is bad enough for the accused to have to endure the unknown risk of “relevant conduct” in the sentencing process, let alone give away the right to attack mistakes by the sentencing court or your own defense attorney, without getting anything in return.

            I am also starting see more publicity given to prosecutor misconduct, and will deal with that in a future posting, but suffice it to say now that there are beginning to be some decisions where there was clear misconduct where cases have been remanded for hearing.  Unfortunately, the fact remains that most prosecutor misconduct goes undiscovered and generally unpunished, but there is clearly a change in the public’s perception of the previously accepted concept that “government knows best.”  Trust in the competency of all government institutions, other than the military, is at an all time low.

            It would also not surprise me to see some movement in sentence relief legislation after the election, regardless of which political party prevails, because it has become a non-partisan issue, and once again, public opinion supports sentence relief.  Long sentences make no sense and cost taxpayers a lot of money, ruin families, and are only good for private prison operators like CCA and REO.

            Keep in touch, and let me know if there is anything I can do for YOU.

 

dgilna1948@yahoo.com

Holder to Prosecutors: End Sentencing Extortion

Attorney General Holder Message to Prosecutors: End Sentence Extortion

 

By Derek Gilna

 

            Attorney General Holder’s recent announcements bear repeating.  For the first time, the nation’s top prosecutor has turned the attention to prosecutorial overreach and made the dysfunctional justice system a topic of national discussion, and not just to prisoners and their families.  Government incompetence, heavy-handedness, and malfeasance, whether it be in the IRS, in the Secret Service, in  the National Health Service’s handling of the Ebola Crisis, or in myriad other agencies, has shown itself to be widespread, and now, thanks to Holder, the nation’s justice system is right in the middle of that discussion.

            Think about that for a moment.  The federal bureaucracy acts like it is doing us a favor, and thinks nothing of spying, lying, and covering things up to further its own ends.  The DOJ and BOP are no different. Incompetence and misconduct are widespread. The “system” only survives and thrives in the dark, and I have a big flashlight, and lots of extra batteries.

            As a national columnist in prisoner and justice related topics for the past several years, I have been fortunate to have access to news as it happens, a luxury that many readers do not have, so I feel it is my responsibility to bring these new developments to your attention, and to make you understand that there are people on the outside that understand your circumstances, and are available to help.

            I am also pleased to report that I accomplished what many people have said is not possible; actually getting a federal prisoner approved for compassionate release, because of his health issues.  Less than 25 prisoners obtained their freedom this way last year.

            That is not to say that your application would be successful, because everyone’s facts are different.  Good facts make good law, one of my law school professors told me years ago (many years ago, I’m afraid), but good facts without good advocacy are also meaningless.  A woman, Susan Mellen, just walked free after 17 years in prison for a murder she did not commit, because she never lost hope, never gave up, and had the help of a team who applied the same diligence.  Perhaps, with the advocacy of people like Holder, with judges who will fairly address the wrongdoing of prosecutors, with defense attorneys who will actually represent their clients, and with specialists that understand the system, there will be more Susan Mellens..

 

www.clemencyrelief.com   (847) 878-0160     

Holder Attacks 851 Sentencing Enhancement Abuses

Holder to Federal Prosecutors: Stop Using Threat of 851 Enhancements to Coerce Pleas

 

By Derek Gilna

 

            Apparently U.S. Attorney General Eric Holder’s impending retirement from government service has not extinguished his desire to rein in over-zealous federal prosecutors.  In a September 24, 2014 memo to federal prosecutors made public, Holder has instructed them to only utilize 851 sentencing enhancements in the instances where “unique facts and circumstances require its use. 

According to Holder, “whether a defendant is pleading guilty is not one of the factors enumerated in the charging policy…An 851 enhancement should not be used in plea negotiation for the sole or predominant purpose of inducing the defendant to plead guilty.”  In those two sentences Holder, who has presided over several watershed reforms with the Depart of Justice (DOC) and been a strong voice for sentencing reforms, delegitimzed this rampant misuse of the prosecutorial sledgehammer used to extort guilty pleas from defendants.

Many other judges have spoken out against this practice, but few with the fervor of Judge James Gleeson, of the Eastern District of New York in one of his cases: “The Attorney General can right those wrongs and the many other like them if he has the will to do so and if the conduct of those inmates since they were sentence suggests it is appropriate.  The United States Attorneys around the country have the power to go back into courtrooms and to request sentencing judges…to vacate sentences that were mandated by prior felony information and amounted to miscarriages of justice.

 Any claim,” the judge continued, “that such a request can only be made if there’s a defect in the underlying proceedings would just be an excuse.  The underlying defect is the abuse of prosecutorial power that produced the sentences in the first place.  (Prisoners) will certainly not object to a request for remedial relief, and if the judges choose to vacate and resentence on the joint request of the parties, justice will have been served.”

I would be pleased to look into just such relief for you on this subject, along with any other sentence reductions you might be entitled to.  Also visit me at clemencyrelief.com.

Holder Resignation HIghlights New Possibilities

Attorney General Eric Holder Submits Resignation to Obama

 

By Derek Gilna

 

            United States Attorney General Eric Holder, a former federal judge, submitted his resignation Thursday, September 25, in a move that has been anticipated for months.  Holder has served as Attorney General for 6 years.  During that tumultuous period, he was a lightening rod for criticism on many issues, but a strong and steadfast supporter of sentencing reform and racial justice.  His resignation draws attention to the significant changes that have happened at Justice during is tenure-and how you can take advantage of those changes.

            To begin with, he has appointed numerous assistant US attorneys and other staffers who are not prejudiced against prisoners and prisoner rights.  Since the beginning of the Obama administration, hundreds of Bush-era appointees have left for private practice. The new hires have been Democrats, traditionally more sensitive to civil and prisoner rights.  As a result, the new appointees are uniform “hard-liners,” and less likely to misuse their authority.

            Secondly, Holder has refused to replace many departing attorneys in local offices (Texas comes to mind immediately), where it is difficult to find people in the administration’s philosophical mold.  As a result, vacancies in those offices are going unfilled, leaving remaining attorneys with higher caseloads and more making them much more likely to reach plea agreements that might actually be fair.

            Finally, Holder has changed the way district court judges have looked at the DOJ and the federal government.  Since Holder and Obama began pressuring the Sentencing Commission and reforming the Clemency Office to release more prisoners, judges are feeling freer to speak out against the War on Drugs and long sentences, and actually ask AUSA’s tough questions, and rule against them in close cases.

            Let me give you an example based upon personal experience.  I was in court in Washington, D.C. in the past two weeks working with local counsel on a pending 2255 petition, as result of an order entered by a federal district court judge REQUIRING the BOP, (not the US Attorney) to answer the judge’s tough questions about a sensitive area of the litigation.  Although legal ethics prevent divulging further details, allow me to say that this is almost unprecedented, and a clear indicator that not only has the judicial climate on prisoner rights changed for the better, but that a well-drawn petition or motion, drafted by someone with experience and the energy to pursue every right you have coming to you, is your most effective tool in gaining sentence relief. 

 

dgilna1948@yahoo.com

 

Clemency Update

Clemency Update: Time to Get started on Your Application

 

By Derek Gilna

 

            As I discussed last week, there are serious concerns being voiced in some quarters regarding the progress of Clemency Project 2014.  One of the principal problems identified was the apparent inability of the individuals directly involved in implementing this program to answer any questions about why no prisoners have been contacted.  Yet another significant problem has only recently come to light.

            The clemency program was originated in Washington, D.C. by President Obama and his Attorney General, Eric Holder, Obama’s appointee.  Holder in turn appointed a new attorney to take charge of the U.S. Pardon Office, which reviews all applications prior to forwarding them to the White House.  However, political appointees are only a small fraction of the employees at the Justice Department. I have it on good authority that one of the reasons that there has been little or no discussion of the clemency initiative and little visible progress in recent weeks is that the bureaucracy Department of Justice, those career employees who may have been hired by previous administrations and are now protected from firing by civil service rules, are dragging their feet.  In other words, they are attempting to “run out the clock.”

            Another concern is that many individuals that responded to the questionnaire did not look at the “fine print.”  What constitutes a “low-level offender, with no ties to gangs, cartels?”   What does the phrase, “no significant criminal history” mean? What constitutes “good conduct” and “no history of violence prior to, or during your prison stay?”

            As with all Petitions for sentence relief, your clemency petition should be drafted and filed by someone who can successfully navigate the treacherous paths of the criminal justice system, someone whose only focus is shortening your stay.  With the news out of Washington that the pressure of election activity and the resistance of DOJ career prosecutors is taking its toll, it is time for you to make your own plans to move ahead, or be left behind. 2016 will be here before you realize it, and the President will be out of office.

Clemency Relief is Too Important to be Trusted to the Justice Department

Federal  Prisoners Skeptical of Fed’s Assistance in Clemency Initiative

 

By Derek Gilna

 

            The past week has seen a groundswell of concern from many federal prisoners regarding the vitality of “Clemency Initiative 2014.”  Many of you who have submitted the online “application” are rightfully concerned about the lack of progress on these forms thus far. I can not say that I am surprised.  The fed’s track record at implementing its own programs is not stellar (see: “Second-Chance Act,”   “Compassionate Release”, etc.), and I am afraid that this will be no exception.  This lack of progress is troubling because there was no group on record opposing clemency.

            It’s time to take a realistic assessment of your chances, and to make alternate arrangements for relief.  First of all, this was a “questionnaire” that you filled out, not an “application,” as required by statute.  The feds are free to act or not act, because they are not statutorily obligated to do anything.  Second, there is no sign that the machinery to process these applications is in place, especially since Federal Public Defenders are not on board.  Finally, who will occupy the office of President in 2016 to approve these applications, which only the President can do?  Are you willing to take the chance that the next President will feel as strongly about this initiative as this one?  There is no time to lose.

            It is one thing to have the right idea, but another to get the whole federal bureaucracy behind it.  Right now, it appears to me that these applications are in limbo, probably because the same group of officials that worked so hard to get you locked up is now in the awkward position of processing your request for sentence relief.  (Can you trust a group of people who don’t even give you the right number of days of “good time?”)

 

            Needless to say, it is time to face facts and realize that you will have to file your clemency petition on your own.  If you are serious about seeking relief, arrangements can be made to fit your circumstances.   It’s time to get a well-drafted application on file and have someone who can follow up on it who is on your side and will see this process through to its completion.

See:  clemencyrelief.com.

White Collar Offenders Now on Sentencing Commission's List of Priorities for New Year

Sentencing Commission Shifts Focus to White Collar Sentence Reform

 

By Derek Gilna

 

            For the past several years, the main proponent of sentencing reform at the federal level has been the U.S. Sentencing Commission.  While most of its policy emphasis has been on providing a mechanism for reducing the sentences of drug offenders, due largely to their greater incarceration levels, white collar sentence relief has also been on the Commission’s informal agenda.  There has been an obvious need for reform on so-called “loss” calculations, which often seem to be argued by prosecutors with little or no factual underpinning, and greatly inflate white-collar sentences, much as “relevant conduct” has been used to increase drug sentences.

            The U.S. Sentencing Commission has officially made “consideration of federal sentences for economic crimes and continued work on addressing concerns with mandatory minimum penalties,” one of its priorities for 2015.  For those of you have followed the workings of this powerful bureaucracy will note that this is the same pattern that developed that led to crack law sentence reduction, as well as the recent two-level reduction for drug offenders.

            My suspicion is that as soon as the November elections are completed you might very well see Congressional action on sentencing reform in the “lame-duck” session at the end of the year.  When the electoral pressures of the election cycle are completed, there is a greater chance that the new sentencing reform laws that have passed out of committee can progress to a vote, and ultimately, passage into law.  That appears to also be the thrust of the Sentencing Commission’s recent publicity statements, which both challenge and encourage Congress to match Commission reforms with those of their own.

            There also appears to be a movement to redefine what constitutes a “crime of violence,” and “drug trafficking offense,” whose overbroad interpretation by prosecutors has also led to unnecessarily long sentences.  This could be an overlooked avenue of future sentence relief.

            As developments continue, I will make you aware of them.  If you need someone to help you navigate these complicated avenues for possible sentence relief, why not seek help from those whose commitment to prisoner relief stems from years of experience?  The choice is clear.

 

dgilna1948@yahoo.com

Rick Perry's Indictment Brings Prosecutorial Overreach into Focus

Prosecutorial Misconduct an All Too Common Problem

 

By Derek Gilna

 

            If you are like me, you are always a bit resentful that prisoner rights, over-sentencing, and criminal justice reform are not topics of daily discourse in the media.

Finally, however, commentators or every ideological stripe have finally shown the “American Criminal Justice System” for what it is, a gross over-reaction to upheaval in American society over forty years ago.   Non-partisan groups like Pew, and even the DOJ, have proven with cold-hard facts that the most-sentenced groups are the non-white and the poor, disadvantaged, and mentally-ill.  All you have to do is look around you to see the truth of that statement.

            For those reasons, I was struck by an item prominently mentioned in the news recently regarding the legal troubles of one certain Texas governor not known for his warm embrace of prisoner rights. Suddenly, the shoe is on the other foot. That governor faces decades in prison if convicted of the crimes of which he is accused.  Highly ironic, since Texas is a poster child for everything that is wrong with American criminal justice.  (Four out of the six top jurisdictions for federal prosecutions are in Texas. Florida and Oklahoma have one each).

            In the Texas case, the media is exercised by what they see as “prosecutorial abuse,” as if it is a relatively new concept, and confined only to Texas.  Not true.  The sad fact is that prosecutorial “abuse,” “overreach,” or “heavy- handedness,” is present in every federal district in the country.  It is ingrained into the system, and subject to almost no limitations or consequences for its practitioners. Prosecutors routinely use threats to get innocent people to plead guilty to crimes they didn’t commit, and beat down and overawe appointed defense attorneys who often rely upon referrals from the court system to make a living. Statistics also show that federal courts will “stand on their head,” to avoid sanctioning or even criticizing federal prosecutors for these tactics, which leads to some interesting court decisions.

            You have only one solution:  you must do what you can to level the playing field.  You cannot rely on the government to come to the rescue, no matter how compelling their public relations campaign to convince you and your family otherwise.There are many opportunities to gain sentence relief if you have someone in your corner that knows the system, and can advocate for you.  We can’t wait for the American public to wake up to prosecutorial and other abuses.  We have to take responsibility for our own futures.  Perhaps in some way we can do our part to bring the American Justice system back into balance.

 

Sentence Relief Requires Expertise

Sentence Relief Legislation Moves Slowly Through Congress

 

By Derek Gilna 

            While most of the recent publicity has been focused on the significant reforms approved by the United States Sentencing Commission, sentence relief bills continue to move forward in Congress, but at a glacial pace.  One of those bills in the Smarter Sentencing Act, meant to extend the benefits of the Fair Sentencing Act of 2010, and introduced by a bipartisan group including Senator Dick Durbin, a partisan Democrat, and Senator Ted Cruz, a tea-party Republican. No vote on this legislation is currently scheduled.

            This bill, although it would also reduce the length of certain offenders and reduce the federal prison population, will not help everyone.  Like most things done by Congress, this bill is focused on showing that members are still “tough on crime,” but only on certain offenders. Unfortunately,, the exclusions appear to overshadow the relief offerred.  Individuals with higher criminal history points, prior convictions involving the use of physical force or violence, or various firearm, racketeering, and sex offender (as defined in the Adam Walsh Act), get nothing from this bill.

            Relief is clearly targeted to “certain (minor) drug offenses.” Mandatory minimum sentences are all reduced dramatically and retroactivity is extended for certain offenses.  However, what does this mean to the already-incarcerated, whose offense does not fit into these narrow categories of relief?

            The answer is obvious. You can’t rely upon others to do your work for you or look after your welfare better than you can.  Although it may be comforting to some to put their fate in the hands of Congress, or a “kinder-and-gentler” DOJ, or an already-overworked Federal Defenders Program,   decades of experience has shown us that relief only comes from a focused, individualized approach.

 

dgilna1948@yahoo.com

Sentence Relief, Clemency, and Pardons: Is the BOP Ready for Reform?

Will Hopes Raised by Administration’s Commutations and Pardons be Realized?

by Derek Gilna

In December of 2013, President Obama created a wave of excitement in the incarcerated  community when he announced the commutation or pardon of 21 federal

prisoners,bringing his first-term total to 23,  and made clear his intention to change how sentence relief was granted by the United States Justice Department. In early 2014, Attorney General Holder announced an initiative to accumulate thousands of clemency applications from federal prisoners. However, many observers question whether the results of the program will match the benefits promised in the initial press releases.

These laudable developments followed a wave of criticism from prisoner-rights advocates decrying the record-low number of pardons in Obama’s first term in office.  The President issued a record-low number of pardons and commutations in his first four years,, compared to the 30 issued by George W. Bush, the 56 of William Clinton, the 77 of George H.W. Bush, and the 250 of Ronald Reagan in their first terms.

Obama, referring to those he pardoned, said, “If they had been sentenced under..current law, many of them would have already served their time and paid their debt to society.  Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.” The President also noted, “In several cases, the sentencing judges expressed frustration that the law at the time did not allow them to issue punishments that more appropriately fit the crime.”

In an era where almost no government official publicly opposes sentence reform, one would think that pardons would be a way for Presidents and Governors to show compassion while cutting the bloated prison population.  However, despite the recognized fact that prisoner counts are too high, and both Congress and state legislators are looking for ways to reduce their corrections budgets, there has been a notable lack of action on the pardons, commutations, and clemency front. in many jurisdictions.

An example of the minimalist approach to executive compassion is the State of New York, where Governor Cuomo had issued no commutations of sentence by the end of 2013.  It’s not because the issue hasn’t been brought to his attention, according to Anthony Papa, spokesman for the Drug Policy Alliance, whose goal is to reduce sentences for drug offenses.  “Every year, I ask him to use his power of executive clemency.  He has not used any yet,”  Papa said.

Other New York observers feel that Cuomo, a Democrat, fears the “Willie Horton Syndrome,” referring to the individual pardoned by then governor Dukakis in Massachusetts, who then committed a murder, possibly costing Dukakis the Presidency. Jim Murphy, former jail chaplain and Capital Region prison-reform activist, said, “The Democrats have been scared.  They are more vulnerable to the tough-on-crime talk.”

Cuomo’s predecessors in New York, however, have all granted pardons or commutations: Eliot Spitzer, one; David Paterson, three; George Pataki, 32; Mario Cuomo, 37; and Hugh Carey, 155.

Cuomo’s fellow Democratic governor, Jerry Brown of California, in late 2013, issued 127 pardons,mostly for drug crimes.  This followed the 128 pardons that he issued in 2012, and the 21 he issued in 2011.

However, it is executive sentence relief on the federal level that will have the greatest effect on the sentence relief landscape.  With over 220,000 in custody and thousands more in pretrial detention, as well as tens of thousands in immigration detention, the federal government is well-positioned to send a message to the public that compassion is as important to the American justice system as arrest and conviction.  Although recent developments are encouraging, many remain skeptical that the Reforms will be administered in the same fashion as their well-publicized goals, and self-congratulatory press releases.

Studies by not only the non-partisan Pew group, but also the Department of Justice have shown that for recidivism to be reduced, institutional rehabilitation must be as important to the Bureau of Prison’s Mission Statement as the “confinement of individuals pursuant to judicial order,” to paraphrase the message the BOP publicizes at its institutions and on its website. However, success cannot be measured merely by making sure that their prisoners do not escape;  if prisoners are not given sufficient education, counseling, and drug and alcohol treatment to succeed after their release date by the BOP, that institution has failed the American public.

Unfortunately, there is legitimate reason for concern that the federal government in general, and the Bureau of Prisons in particular, severely challenged organizationally by the admittedly daunting task of preparing prisoners who will be granted sentence reductions under the retroactive sentencing guidelines, will not be up to the task.  Expectations have already been raised by the “questionnaire” prisoners have been encouraged to fill out through the Corrlinks system. The fact remains that the BOP, constantly under criticism for mismanagement by Congress and the General Accounting Office, is probably not up to the task. A look at previous BOP attempts at reform is not been encouraging.

The Second Chance Act led prisoners (and the public) to believe that 12 months of halfway house would be extended to releasing prisoners to help them reintegrate into society.  Never happened.  There are too few halfway houses and too few beds, facts the BOP knew before the Act was passed.  Compassionate Release was another highly-publicized program, whose results have been almost nil.  The reason is that the BOP has not trained its personnel in how to accept and process applicants.  Therefore, there is reason for skepticism that the new Clemency Initiative will be any different.  For this and other sentence relief programs to succeed, the BOP must change its mindset to embrace rehabilitation, as well as the training necessary to properly implement President Obama’s salutary attempts at prison reform.

U.S. Sentencing Commission Retroactivity Updates

Sentencing Commission Changes Bring Opportunities

by Derek Gilna

Although the recent retroactivity amendments by the U.S. Sentencing Commission are clearly beneficial to all drug defendants, certain questions have arisen that should be clarified.  As with the Crack Law amendments, the extent of the relief granted will depend upon judicial interpretation before its full impact can be assessed.

However, unlike the Crack Law changes, there is no arbitrary cutoff date for relief which left many without sentence reductions. Additionally, the two-level reduction is across the board, for all drug crimes that did not involve crimes of violence.  Mere possession of a firearm will not disqualify a petitioner unless it was immediately present at the crime scene. Also, for the first time, the Sentencing Commission has a target number of individuals that it would like to see released:  46,000, dwarfing the Crack Law release figures.

Petitions can be filed at any time, but no order for relief can be carried out until after November, 2014, for November, 2015 release.  That tells me that the BOP is not ready to process the one-quarter of its prisoners who are going to be released.  If the program is going to be successful, immediate changes to release processing procedures will have to be made by institution case managers and halfway houses.  The US Probation Department, hit by layoffs, furloughing, and attrition of staff, will also see their caseloads increase dramatically as more prisoners are released.

The wild card in the whole process is the “Public Safety” issue,  which must be considered by the court during resentencing. This is one area where astute representation will pay big dividends, because this is the subjective portion of the process. Release will NOT be automatic, so it will be important to have an advocate who can recommend the best course of action for your individual circumstances.