Wednesday, October 29, 2014

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.




Tuesday, October 21, 2014

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.

Tuesday, October 14, 2014

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..   (847) 878-0160     

Monday, October 6, 2014

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