Monday, September 29, 2014

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. 


Sunday, September 21, 2014

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.

Sunday, September 14, 2014

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.


Monday, September 8, 2014

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.