Clemency Relief under Obama A Big Disappointment

BOP Clemency Program Off to Slow Start

 

By Derek Gilna

 

            Those of you who have communicated with me know that I like to call things like I see them, including discouraging people from filing something in court, “just to file something,”  when I don’t see it succeeding.  As you know, I am not an advocate of your wasting your hard-earned money or that of your friends and relatives.  I am still a firm believer that if you don’t file, you don’t get, but the facts have to line up correctly for you to win relief.

            So it is with some sadness that I share with you some of the things I have learned from speaking with some insiders, reading all publications on the subject, and speaking with people at the institutions, about the BOP Clemency Program.  It is shaping up to be a cruel disaster.

            So far, except for some window-dressing approvals, the pace and number of clemency approvals puts President Obama squarely LAST of all Presidents in the past fifty years for approvals.  And exactly NONE of those approvals came from the BOP application process.  All approvals have been classified as “safe” by several experts, granted for offenses committed decades ago, and given to people of advanced years who have already completed their sentences.

            Also, all of those who got relief had been recommended for the action through the DOJ’s Pardon Office, not exactly known for its expansive interpretation of clemency laws. The fear is that the career employees of the DOJ are running out the clock on the Obama administration, and frustrating the intent of the much-touted clemency program.  To succeed, you need someone to push your petition, and follow up on the process.  (Did you really think the BOP was going to do this?)

            That puts us back right where we were two years ago, when the only sentence relief was obtained from legal professionals wise in the ways not only of the courts and the law, but also the harsh realities of the BOP.  I and others like me are still here to examine your cases, free of charge, to see if you qualify for relief.  Do not be discouraged, and do not be frustrated.  Justice moves slowly, but it does move, if it is helped along.

 

dgilna1948@yahoo.com

113 McHenry #178, Buffalo Grove, IL  60089

(847) 878-0160

Federal Prosecutorial MIsconduct

Federal Prosecutors Misconduct Subject of new Federal Lawsuit

 

By Derek Gilna

 

            Congressional initiatives, such as the Smarter Sentencing bill, Sentencing Commission action, such as the two-level reduction for drug offenders, and Presidential pardons, under the authority of the executive’s clemency powers, have gotten most of the publicity, but what about the weak link in the chain, addressing the inappropriate, unethical activities of unscrupulous(or politically-motivated) local federal prosecutors?

            A writ of certiorari was recently filed to address an especially egregious example of prosecutorial misconduct in New Orleans regarding Brady (discovery) violations by federal prosecutors that contributed to many wrongful convictions.  Truvia v. Harry F. Connick, U.S Supreme Court, 2015. (See also Connick v. Thompson, 131 S. Ct. 1350 (2011), which I wrote about for Prison Legal News.)

            To be fair, Attorney General Holder and his designated successor have helped introduce and advance many needed reforms into the Department of Justice to get the local federal prosecutors to remove some of the obvious injustices.  Condemning the use of needless enhancements to garner guilty pleas (often from innocent people), as well as a reform of the pardon office, were positive developments.  However, Holder has not dared to address an often more serious problem prosecutorial misconduct.

            As federal case law currently stands, most federal prosecutors are shielded from the full effect of their misconduct.  I have reviewed hundreds, if not thousands of cases, and if there is one common thread running through their fact situations, it is the often subtle practice of federal prosecutors using the power of their position to frustrate diligent defense attorneys in performing their constitutionally-critical duties of properly defending their clients. (See the prosecution of Senator Ted Stevens, who was wrongfully prosecuted and convicted, and driven from office, but later exonerated.  His prosecutors remain unpunished.)

            Don’t misunderstand me.  There are many ethical prosecutors out there. They work hard for often modest pay, in relation to other attorneys.  However, the unchecked unethical behavior of some prosecutors, combined with the tremendous advantage in prosecutorial resources available to the federal government, combines to often mock the ideal of American judicial justice.  Judges often wink at all but the most obvious examples of prosecutorial abuse.

            Yes, diligent defense attorneys can often uncover these abuses, and take remedial action even after one has been convicted. However, even when the prosecutorial wrongdoing has been exposed, no action is taken against the offending prosecutor.  In fact, some of them even get promoted to federal judgeships! (I personally know of at least three instances of this, and no, I won’t name them here-yet.)

            Federal prosecutors should be held accountable, as are all defense attorneys, for all questions of unethical behavior, to level the playing field, and make the term “American Justice,” more than just a bad punch line.  Federal prisons will be  much less-crowded places if that takes place.

Bureau of Justice Satistics Show Prison Health Care in Crisis

Bureau of Justice Study Statistics Show Depth of Prisoner Health Issues

 

by Derek Gilna

 

            A special report issued by the Bureau of Justice Statistics in February, 2015 documents what prison rights advocates have known for years, that “half of state and federal prisons and local jail inmates have serious chronic health problems." The study concluded that prisoners are nearly twice as likely to have either a chronic medical condition or an infectious disease.  Of course, the federal government does not point an incriminating finger at itself for not properly addressing those health concerns.

            These chronic conditions include cancer, high blood pressure, stroke-related problems, diabetes, heart-related problems, kidney-related problems, arthritis, asthma, and cirrhosis of the liver.  The study also states that "(t)wenty-one percent of prisoners and 14% of all jail inmates reported ever having an infectious disease, including tuberculosis, hepatitis B and C, and other sexually transmitted diseases (STDs)."

            The study also noted that America's prisoners are also getting older, and the jails and prisons are becoming inundated with individuals with serious, chronic health problems consistent with that demographic comes heart and liver disease..  Despite this fact, twenty percent of jails and prisons do not evaluate all prisoners upon their entry into the correctional system, which means that many health problems also go undiagnosed.  Prisoner rights advocates have long maintained and the study agrees that prisoners have high incidence of diabetes and liver problems, due to alcoholism or drug use.

            Also not dealt with by the study is one serious deficiency of correctional health care; if a member of the general public gets ill, he either goes to the doctor, a hospital, or calls an ambulance.  In any event, that individual is treated by caring, well-trained medical professionals.  If a prisoner falls ill, he must navigate the Byzantine system that prescribes Tylenol for serious medical complaints and does its best to delay, discourage, and  deny proper medical care.  Needless to say, the BJS statistics do not measure how many prisoners needless suffer or die because of this "deliberate indifference."  Unfortunately, from the emails and correspondence I get, the number is way too high.

 

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

White Collar United States Sentencing Commission Changes

  Newer, Lower Sentencing Commission Changes Published

 

By Derek Gilna

 

            The Sentencing Commission changes for 2015 are finally starting to come into focus.  As should be obvious, the Sentencing Commission has been the primary vehicle for change and reform of sentencing for the past several years, as Congress has struggled to properly address the issue.  As of now, here NO sentencing reform bills set for a vote in either house of Congress.

            According to the Sentencing Commission, changes will be proposed to the following sections: 4A1.2, relating to Computing Criminal History; 1B1.3, changing the factors for relevant conduct; a revision for the financial loss amounts (of great benefit to white-collar defendants; 3B1.2, reforming the mitigating role definition to provide for a reduction who people who perform “limited functions in criminal activity;” and an amendment to 2B1.1, revising certain sections of the fraud crimes.

 NONE of these changes are expected to increase any sentencing, only reduce them (There are, however, some technical increases for stock market fraud).  It is expected that these sentencing reductions will also be given retroactivity, as has occurred with past sentencing revisions.  The changes are up for public comment until March 15, 2015, at which time the Commission will vote on these changes and formally present them to Congress.  Congress has NEVER rejected any changes in sentencing proposed by the Commission.

While these changes still pending, we know that there are many other avenues for relief available to you, depending upon your factual circumstances.  You need a strong advocate for your rights.  This past week I was in Washington D.C. district court on a 2255 habeas case, where the client was granted an evidentiary hearing based upon my allegations of inadequate representation of counsel. The hearing was hotly contested and no decision has been given yet.

 I am strongly committed to all defendants, even those already convicted, to get justice based upon their attorney’s failure to properly represent them.  It is always an eye-opener to see how many defense attorneys seem to be more concerned about their relationship with the Government than their duty to their clients and end up providing constitutionally inadequate representation of counsel.

These and all such cases are difficult and very fact dependent. However, if you are interested in seeking experienced legal advice or legal services, your choice is clear. I am willing to go into battle for you, and if you are ready for the challenge, so am I.

Deflategate Also Describes BOP Compassionate Release Policy Failures

BOP Continues To Stumble On Compassionate Releases

 

by Derek Gilna

 

            The BOP Policy on Compassionate Release has steadily lost pressure and momentum since a reform of the policy was announced to great fanfare in 2013. Human Rights Watch recently added its voice to critics of the federal Bureau of Prisons' Compassionate Release Program, designed by Congress to send home its most critically-ill prisoners. Studies have shown that the average prisoner costs the federal government approximately $30,000 per year, but elderly and ill prisoners cost an average of almost $70,000 a year, with many costing much more.

            One would think that the fierce intra-agency competition for dollars in a shrinking Justice Department correctional budget should make this an obvious priority.  Common sense would indicate that the procedures for these releases should be relatively straight-forward, triggered by an internal review focusing on  a prisoner's medical records by a panel of medical professionals .  One would think that the BOP would be happy to shuttle these individuals out of their institutions and eliminate the crushing financial burden for their treatment off their books.

            Needless to say, this is not the case.  As usual, the BOP has other ideas.  Unfortunately, the BOP balances its budget not by releasing infirm, terminally ill,  and elderly prisoners, but in denying proper medical care and delaying expensive treatment of chronically ill or terminal patients.  I dare the BOP to prove me wrong.

            Make no mistake.  The BOP does grant Compassionate Releases.  I know-I got one, and it wasn't easy.  They are virtually impossible to get on your own.  You need help- help from someone that understands the system. It's like anything else in the criminal justice system.

 Sentence relief is hard to get and there are no guarantees.  Unfortunately, different cases have different facts, and what worked for one does not necessarily work for all.  Justice should be uniform, but it is not.  It's more than just listing cases; you have to know how the system works. There are many routes to relief, but not all of them are mapped out, and depend not only upon case filings but by knowing which solution has the best chance of success.  I don’t know all the answers, but at least I understand the (your) questions.

 

dgilna1948@yahoo.com

113 Mc Henry #173, Buffalo Grove, IL  60089

(847) 878-0160          

 

 

Mandatory MInimum and Prisoner Relief Legislation Pending in Congress

Further Updates on New Legislation Affecting the Incarcerated

 

By Derek Gilna

 

As those of us involved in the front lines of criminal justice reform are only too well aware, the wheels of change move all too slowly to suit the incarcerated and their families Many of the previously-introduced bills, such as Smarter Sentencing Act, Justice Safety Valve Act, and other reform legislation faded into oblivion at the end of the year (since they were not passed by the old 113^th Congress), as the new,  114th Congress took office.  All of the above sentence-relief legislation will have to be reintroduced and once again referred to the judiciary committee before any substantive legislative action can take place and a bill sent to the President’s desk.  I’m not holding my breath.

Congress appears to be preoccupied with the economy, terrorism, treaty negotiations with Iran, illegal immigration, and yes, politics.  Most media headlines concentrate on the areas of disagreement between Congress and the President.  Congressional resentment over the President’s Executive action on immigration has brought to a halt most legislative initiatives on many bi-partisan issues (such as sentence reform) as the two parties maneuver for political advantage.

Although there is widespread bipartisan support for reform of firearms-enhanced laws and mandatory minimum sentences, with  all parties in apparent agreement that the justice system is broken, we will probably still have to rely upon the U.S. Sentencing Commission for constructive action over the short term.

There was, however a new bill (HR 71) introduced in the House on January 6, 2015, titled the “Federal Prison Bureau Nonviolent Offender Relief Act of 2015,” which does hold some promise.  According to its sponsor, it would “direct the Bureau of Prisons, pursuant to a good time policy, to release a prisoner who has served one half or more of his or her term of imprisonment if that prisoner 1) has attained age 45; (2) has never been convicted of a crime of violence; and (3) has not engaged in any violation, involving violent conduct of institutional discipline.”  This is not unlike other previously introduced legislation that has not progressed to passage.  It has been referred to the House Committee on the Judiciary.

In the meantime, those looking for sentence relief will have to go about it the old-fashioned way, through the courts, the clemency process, and BOP programs like Compassionate Release.  If I can be of assistance to you in this or other related matters, I invite your inquiry.

 

dgilna1948@yahoo.com

113 McHenry #173, Buffalo Grove, IL 60089

Federal Prison Release Plans

How Are You Planning For your Release?

 

By Derek Gilna

 

            For most federal prisoners, at some point in time you will be released.  What is your plan for when that happens? As shown by some of the recent two-level sentence reductions, even some of those prisoners with “life” sentences are getting “out-dates.”  These motions give the original sentencing judge an opportunity to revisit the facts of your case in light of recent changes in not only the law, but also public opinion. Although the overall impact on federal prison counts is uncertain at this time, clemencies have been advanced as yet another way to reduce a life sentence.

 More news articles have appeared in main-stream media about the dysfunctional US criminal justice system, about how federal over-sentencing does nothing to reduce the crime rate, and as a result pressure continues to build to eliminate life sentences except for serious, violent crimes and to reduce other sentences. Also remember that every law suit filed against the DOJ and BOP increases pressure on those agencies to conform to the ideals of justice.

            For the vast majority of federal prisoners who did not receive life sentences, the question remains about what you should concentrate on while you are incarcerated.  I have always been of the opinion that you should follow two tracks: one, fighting your incarceration or length of sentence, as well as conditions of confinement (such as poor medical care), and two, vigorously pursuing any positive activity that might improve your chances for success after you are released.

            The two go hand-in-hand.  The reality is that you are locked up, so you might as well use the time wisely.  Take every program offered to build your life skill-set, and to get your mind thinking positively and help you interact with other people of different backgrounds.  Consider participating in religious activities, or sports, both activities that will improve you physical and spiritual health. Remember judges often look at what you have accomplished while locked up when they are reviewing petitions for various types of relief.

            Finally, no one is suggesting that you need passively sit idle without challenging the criminal justice system, by using that very system to reduce your sentence, win your release, or at the very least improve the conditions of your confinement. Remember you are never defeated if you never give up.  Also remember that you have an advocate.

 

dgilna1948@yahoo.com

clemencyrelief.com

113 McHenry Rd., #173

Buffalo Grove, Il  60089

(847) 878-0160