First Step Update and Prospects of New Year's Reforms

One Year After Passage of First Step,  New Year Holds Prospect of Additional Relief

by Derek Gilna

Although inter-party Washington battles get the headlines, steady progress is being made toward additional sentence relief. With Congress and the President facing an election in eleven months, the pressure is on for more "big-ticket" legislative accomplishments for incumbents to convince voters that they should remain in office.
       Two groups NOT looking forward to the New Year are the bloated and inefficient law enforcement and federal prison bureaucracies, which have both feasted for decades, but are now facing unprecedented scrutiny and budget cutbacks.
For decades lobbyists pushing mass-incarceration  agenda ruled the halls of Congress and the White House, but no more.   They are outnumbered and overawed by dozens, if not hundreds of influential advocates and non-profits whose opinions are now sought out by both Congress and the White House, and if they have their way, will soon convert correctional facilities into institutions of real education and training, pushing aside the "lock-em-up" old guard.
Passage of First Step Act was the huge game-changer.    Just a few numbers to prove that: Fair Sentencing / Retroactive Sentence Reductions: 2,443 Orders Granted; Elderly Offender Home Confinement: 380 Approved; Compassionate Releases / Reduction in Sentences: 117 Approved; Ready to Work Initiative: 20 Contacts to BOP have been made; Volunteer Participation: +1,700 Increase in volunteers since December 2018.Thousands more cases are in the pipeline.
What form will, if you will, "Next Step" take? If Senators like Lindsay Graham have their way, implementation of FSA will eventually be removed from DOJ control: the evidence is that bureaucrats are already doing their best to delay FSA implementation. It has been suggested that a new Parole Commission, independent of DOJ, handle the process. Meanwhile, judges are holding he government to account for FSA opposition.
In US V Manzano, 18-3430, (2d Cir. 12-18-19), the court held in a SO case that the district court's instruction to the jury that they could render a verdict NOT in accordance with the law was improper, but that the government does not possess a clear and indisputable right to have excluded any evidence of sentencing consequences. The case is highly significant for several reason, but mostly for the fact that judges are clearly more aware of the Sixth Amendment rights of people-and juries-having authority to know the consequences of their decision. (See:   US v Haymond.)
In US v. Hall, 07-3036  (DC Cir. 12-12-19), the court threw out a money laundering conspiracy charge, in a mortgage fraud case, where the conduct was already encompassed by the bank fraud charge, and remanded for resentencing.
Best wishes of the season to all, and remember, let not your heart be troubled.

Federal Legal Center, Inc.
Derek A. Gilna, JD, Director
113 McHenry Rd.   #173,
Buffalo Grove, IL   60089
(Also in Indiana)
dgilna1948@yahoo.com

What Happened In Washington This Week Makes Justice Reform More Likely

by Derek Gilna

            The Supreme Court (SC) made no news in the past week of interest to prisoners, but developments in Congress and the DOJ certainly did. Whatever your political affiliation, the news regarding the abuses in the FISA court process, the Inspector General's report of multiple DOJ violations of Brady standards, and the former nation's disgraced top cop going on national television to claim he wasn't responsible, have exposed to the general public the abuses and lack of accountability inherent in the federal justice system. It also totally discredited the "keep the public safe" excuse for inaction.  "Rehabilitation," rather than "confinement," is now the public's priority.

            Congress, of course, is aware of the many abuses throughout the justice system's bureaucracy assaults, harassment, graft, and financial mismanagement.  The language of the First Step Act (FSA), highlighted the fact that the federal prison system can't be trusted to protect its weakest and most vulnerable, treat its sickest, release its oldest, or show mercy to its terminally ill. Count on "Second Step" and other reforms, including even parole,  being front-and-center  after the holiday break.

            In  a case related to the above subject matter, US v. Cano, out of the 9th Circuit, highlights the problem of pervasive police and prosecutorial misconduct. In that case, the appellate court reversed the district court's dismissal of a conviction for a warrantless search of defendant's cell phone at the border on 4th Amendment grounds, despite the SC ruling in Riley v. California, which held the opposite. 17-50151, 8-16-19. The case shows the extent to which the government is willing to go to bypass the 4th amendment if left unchallenged by competent defense counsel.

            In the 11th Circuit, the court recognized that mental disabilities ignored by defense counsel prior to sentencing required that the matter be remanded for a new trial for inadequate representation of counsel.   Jefferson v. Warden, 17-12160, 10-17-19. We have previously here referred to numerous studies that mental health or PTSD issues can and must be put forward by defense counsel in sentencing proceedings, lest they be found to have rendered inadequate representation of counsel. "Neuroscience, PTSD, and Sentencing Mitigation," Grey, Prof of Law, AZ State University.

            In the 6th Circuit, White v Warden, 18-3277, 10-8-19, held that procedural default would not prevent a court's denial of a writ of habeas corpus and a remand for an evidentiary hearing, to examine the issue of a conflict of interest by defense counsel. US v. Arrington, (2d Cir. 10-18-19), reached this same conclusion. An 8th Circuit First Step case overruled a denial of relief by the district court and ruled that defendant had already received a reduced sentence in 2016, and ordered a 404 rehearing. US v McDonald, 19-1221, 12-11-19.

            

First Step Act Can Maximize Community Corrections Time.

Does the First Step Act Permit Maximization of Community Corrections?; Case Updates

by Derek Gilna

            Many questions have arisen about whether the First Step Act (FSA) provides for maximization of community corrections, including halfway house.   This concept was around long before the passage of FSA in 2018.  It has long been a staple of good representation that defense counsel should advocate  for the maximum period of community corrections,  a requirement under Section 3621(b).

            It is well known that the federal prison system has violated Congress' directive to

maximize halfway house time, and has relied upon informal internal directives to cap placements at six months, and has consistently misled prisoners and the general public regarding this fact. Its use of those informal directives is in direct violation of the Administrative Procedure Act, which requires notice-and-comment procedures to be followed.   It is our opinion that FSA now gives the sentencing courts jurisdiction to attack these provisions (and others) with a well-drafted pleading.

            The US Supreme Court will hear arguments in Banister v. Davis, 18-6943,  whether and under what circumstances a timely Rule 59(e) motion should be re-characterized as a second or successive habeas petition under Gonzalez v. Crosby. Rule 59(e) motions have been used to sidestep statute of limitations issues in post-conviction motions.

            We revisit an important case in the 9th Circuit, Washington v. Ryan, (9th Cir. 4-17-19), a 2255 habeas case reversed and remanded for defense counsel's failing to investigate and present mitigating evidence at the penalty phase: " In the penalty phase, the focus shifts from guilt to culpability, and evidence on both aggravating and mitigating factors is properly considered." In Washington, counsel failed to offer clearly available evidence of mental illness, prejudicing his client.

            We also revisit the case of US v Hassan Ali, 15-4433, a 4th Cir. Hobbs Act robbery appeal, that has been again held in abeyance. The case has now been pending four years, an unusual circumstance.

            In US v Perez, 17-14136, (11th Cir. 11-26-19) the court vacated a conviction where the facts did not justify a 18 USC 2113(a) prosecution based upon a reasonable fear of death enhancement, where the facts showed that without possessing or threatening the use of weapons, he entered two banks, and using words like "please" and "thank you" "bargained pleasantly with one teller for $5000 and allowed another teller to leave he teller's post and report the robbery while it was ongoing."