FSA Motions Are Cutting Sentences, Lame Duck BOP DIrector Visits Aliceville, Ducks COVID-Infected Prisoners

 

Congress Returns to Work; Negotiations Continue on Major Sentence Reform Bills; US Attorneys Object to FSA Sentence-Reduction Motions, But Concede Their Legality; First FSA Sentence Credit Cases Hit the Courts; PATTERN Revisions in the Works; COVID Returns, Or Did It?; Appellate Updates

 

by Derek Gilna

 

            Congress returns to work after an extended Easter break to consider a package of three sentencing reform bills already approved on a bipartisan basis by the Senate Judiciary Committee. Senate passage of The First Step Implementation Act (S. 1014), the Prohibiting Punishment of Acquitted Conduct Act (S. 601), and the Covid-19 Safer Detention Act (S. 312) would make meaningful if incremental, progress toward a more just criminal legal system. The EQUAL Act has been endorsed by DOJ.  House passage of all of these bills has either happened or is expected, so the issue is WHEN the Senate leadership will bring it for a vote. I also feel that it is likely that there will be some grants of clemency after the November election, probably before Christmas.

            Sentence reductions are not only possible under First Step Act (FSA)-they are happening.    Even though US attorneys object (specifically to the "extraordinary and compelling circumstances" criteria),  they must concede that reductions are in order on career offender cases, because it is the LAW. If you have a career offender case where one or more of the predicate offenses no longer qualifies, you should strongly consider filing.

            The first court filings seeking FSA sentence credits of up to one year have begun to hit the courts, and are still in the early stage. The law is clear that FSA gave ALL non-violent, qualifying prisoners, no matter their security level, the right to those credits, so if you qualify for CARES (in no danger of ending in  the foreseeable future) or have an outdate in 2024,  you know whom to contact.  

            Congressional pressure continues for yet another change to PATTERN scoring. DOJ in a pending report to Congress said it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for "public safety." Instead, the department shifted the boundaries between other risk levels for its general recidivism algorithm, and estimated that 36 percent more Black men and 26 percent more Hispanic men might now qualify as minimum or low risk, with smaller increases for Black and Hispanic women in prison. Advocates are still not satisfied.

            A prisoner post that perfectly sums up DOJ's ineffectual response to COVID and its non-response to the current BA.2 variant:  Writing from Aliceville where Carvajal made an appearance last Thursday with his entourage. He toured one unit, was apparently impressed with the shiny clean floors, swung by the rec yard, and then left... inmates were forced to power wash the compound at 4:30 am and wax the floors until 2 am for days on end to get ready. It was epic in its misguided priorities. No one was allowed to speak with him, of course, but there would have been no point in that anyway, since he didn't show care or concern of the last two+ years of COVID so he certainly does not now in the last month on the job. ...Meanwhile, BA.2 is racing through Aliceville - there are hundreds of people sick with all the symptoms... Since there is no testing, there is, de facto, no COVID here so they probably let it just rip through. "    Indeed, they will.