Senate Sentence Relief Bill Advances Closer to Passage

Newest Draft of Senate Bill 2123 Amended in Committee, Advances

 

by Derek Gilna

 

            Many of you have been inquiring whether the facts of your case would qualify you for relief under the new Senate or House bills. Of course, as I have told many of you individually,  there are many hurdles to clear before these bills become law, so it is important to not focus too much on the current language in the proposed legislation.  That having been said, a few changes were made in committee this past week that at least gives us some clues as to what the final bill will look like.

            First, there has been more emphasis regarding extra good time for programming in this version, with 5 extra days given for 30 days of successful programming.  People currently incarcerated for some narrowly defined violent crimes, and with more than a 15 year sentence for fraud or other white collar offenders are excluded. The RDAP program is mandated to ensure that everyone eligible can enter the program early enough to get the full year of credit. The BOP has a time limit to put together a plan for these programs and is subject to annual reviews by Congress to check its progress, because I suspect  Congress is aware of past BOP failures on RDAP and other sentence-reducing programs. For the first time, the BOP will have to do risk assessments to determine offenders' suitability for early release.

            Secondly, compassionate release requirements are now spelled out in the statute, rather than merely left to BOP rule-making.  Obviously, Congress doesn't trust the BOP to properly implement this program either.

            Finally, there are some significant reductions for drug offenders. Crimes that had MMs of 20 years are now 15 years; it is possible to petition under 3553a for retroactive relief. In the case of a non-violent drug offense previously calling for a 10-year MM, that is reduced to 5. People who received no relief under the Fair Sentencing Act can now petition the court for relief. Additionally, for the first time, it appears that  3552a petitioner must be brought to court and have an opportunity to present his case.

 

Federal Legal Center, Inc.

Derek A. Gilna, Director

113 McHenry, #173

Buffalo Grove, IL  60089

dgilna1948@yahoo.com

 

 

Justice Reform Update

Senate, House Bills Advance Despite Law-Enforcement Pushback

 

By Derek Gilna

 

            Only good news came out of the “mark-up” session on the Senate bill for prisoner relief, after it was approved as expected by the Senate Judiciary Committee.

Those opposing the bill, such as Republican Presidential Candidate and Texas (where else!) Senator Ted Cruz, (who took time out from trying to shut down the government over Planned Parenthood), complained about the fact that approximately 13,000 additional federal prisoners will be released in the next year. Former federal prosecutor Senator Ted Sessions also opposed any reductions (Surprise, surprise!).

            However, these actions were expected by the bill’s sponsors, and easily turned aside. Senators Grassley and Durbin and their allies supporting the bill are fully prepared to beat back the delaying tactics usually used to oppose these measures.  The leadership of both parties stands firmly behind the bill and I am still expecting passage sooner rather than later.  There is no question that President Obama will sign the legislation when it hits his desk.

            We know that the bill still does not go far enough, and has little to say about white-collar prisoners, but a new coalition is banding together to propose the next generation of reform after the Senate and House bills pass. These proposals are the next logical step in this process, and would drastically reduce the number of people coming into the system. More attention will also be paid to bills already introduced to give the currently confined a pathway to earlier release by programming and “good behavior.” Other advocates are proposing legislation to limit the immunity of prosecutors who violate discovery rules and commit other misconduct, as advocated by some federal appellate court judges.  There is a lot making its way through the pipeline.

            For those of you not wanting to wait for legislative relief, the roadmap for relief is clear given existing case law and some exciting cases currently before the U.S. Supreme Court.  We would be happy to help you explore your options.

 

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd. #173

Buffalo Grove, IL  60089

dgilna1948@yahoo.com

(847) 878-0160

Criminal Justice Reform Moves Ahead in DC

Don’t Question Grassley’s Clout in the BOP/House Bill Summary

 

By Derek Gilna

 

            As a native Chicagoan, I know a little bit about “clout,” that use of power to get what you want done, no matter who gets in the way or whose feelings get hurt.  The BOP found out what clout means when they ran afoul of Senator Charles Grassley in peremptorily banning pork from BOP menus.  The BOP claimed that a “survey” of prisoners found that they wanted pork off the menu. (Next they’ll be surveying prisoners over what sort of ‘imitation’ coffee they would prefer.)

            You will recall that Grassley is one of the co-sponsors of the new prisoner relief bill introduced recently, and as head of the Senate Judiciary Committee has a lot to say about the subject and how the BOP runs its operation. That kind of clout bodes well for some sort of relief coming out of the Senate.      

            What about the House?  The House bill also has some powerful co-sponsors, and does resemble the Senate bill.  It would also eliminate mandatory life sentences for three-time, nonviolent offenders, reducing minimum sentence to 25 years. It would also have retro effect, except for offenders who have prior serious violent felony conviction that resulted in a prison sentence of greater than 13 months.  It would also apply the FSA retroactively to several classes of prisoners.  Although I would have liked to see more in this bill, it’s a start, and an important one.

            Sentence relief comes in bits and pieces, because politics is important, and even in the current more favorable climate for relief, no one wants to get too far out in front of the parade.  You can count on parts of the DOJ to drag their feet, but the DOJ has no votes in either the Senate or House, and legislators are anxious to show the public that can cooperate on something.

            How may we help you? 

 

Federal Legal Center, Inc

Derek Gilna, Director

113 McHenry Rd., #173

Buffalo Grove, IL 60089

dgilna1948@yahoo.com

 

 

Congress on the Spot as Fall Session Begins

Congress Returns To Session With Lots to Do

 

By Derek Gilna

 

            In another reminder about how fragile the fabric of government can be, the U.S. Congress returned to work Tuesday with only two short weeks to pass legislation to prevent yet another government shutdown.  Although both sides have agreed that they wish to avoid that, this topic will be distracting Congress for at least a short while from other pressing business, such as criminal justice reform.

            Numerous prisoner relief or prisoner-friendly reforms are on the table in Washington, but as yet, none of them have made it to the floor for debate, been passed, put on the President’s desk for signature, or signed into law.  That’s something to remember the next time you hear a rumor stared by someone with a cruel sense of humor.  Senator Charles Grassley has promised some news this week, so we will be hopeful that it is something that will bring real sentence relief.

            The train of criminal justice reform is gathering speed and it will be hard to stop.  Whatever your politics,  the recent Snowdon revelations about government surveillance, the “Black Lives Matter” program attack on police injustices, and the Washington Post revelation that even local police departments illegally spy, has shown the government’s grip on the surveillance state has loosened quite a bit in the last few months, although it can be of scant solace to the already incarcerated.

            The fact of the matter is that most arrests and convictions could not occur without some form of surveillance, and what human wants to go through the time-consuming process of swearing out an affidavit for a warrant that the judge might not grant.  It’s always easier to use some form of covert surveillance, out of the prying eyes of the public, to get the information you need, so that you can get a “win” in court, rather than achieve a just result.

            I examine dozens of fact situations and court dockets a week, and I can safely say that in over two-thirds of them I have found evidence of either police or prosecutorial misconduct, including illegal surveillance, Brady violations, and the like.  The facts are there for the taking. Reexamine your case for these tell-tale signs, make note of them, and pass them on. Although perhaps the current case holdings do not directly benefit you, a new case that might is perhaps just over the horizon, with just your fact scenario.  The pace of attacks on criminal sentences is rapidly accelerating as the media, the public, and the judiciary all begin to see the extent of the problem.  We are here to help.

 

Federal Legal Center, Inc, 113 McHenry #173, Buffalo Grove, IL  60089 dgilna1948@yahoo.com

           

Johnson Case is having an Impact on Sentence Relief

Johnson and Presidential Campaign Setting the Stage for Sentence Relief

 

By Derek Gilna

 

            Three things came to my attention this week.  First, the Johnson case is a keeper;  courts are using it with little of the hesitancy and generally associated with the judicial system, for an often overlooked reason.  Secondly, it looks like the Presidential campaigns are getting involved in the issue of sentence relief.  Finally, Congress is starting to show signs of moving ahead on the same issue.

 As to Johnson, one must remember that judges, including the justices of the U.S. Supreme Court, rarely want to be ground-breakers in their decisions. They are very thin-skinned when it comes to criticism. The Supreme Court gave big hints in recent prisoner-related decisions, such as Alleyne, on how it wanted the circuits to rule on certain issues, but the lower courts didn’t follow through. In the Fair Sentencing Act, lower courts once again had a golden opportunity to release larger numbers of people, but didn’t grant relief nearly as often as it was deserved. However, the Johnson case now gives them a non-controversial way to cut sentences without Congress or law enforcement bodies criticizing them, and there has been zero criticism of these sentence cuts.

Secondly, Bernie Sanders (my favorite socialist), has sharply criticized the punitive American justice system, and has said when Congress returns from recess, “I will be introducing legislation, which takes corporations out of profiteering from running jail.”  He added: “We want to deal with (mandatory) minimum sentencing,” and want to legalize marijuana, which will drive the DOJ crazy.  Although no one (yet) thinks Sanders will win nomination, he is driving the discussion on justice and gaining support as a result, which leads to my last point.

Congress is full of people who make their living doing nothing but talking, and getting paid well for it (kind of like other people we know, right?).   When Sanders, Rand Paul, Clinton, and the US Sentencing Commission talk about justice reform, and even Senator ((Mandatory-Minimum) Grassley is planning to hold hearings this Fall on the new legislation, you’ve got to think something good will happen, and happen soon.

In the meantime, Federal Legal Center will continue to file for sentence relief, be it with a 2255 habeas corpus, with a 2241 for actual innocence or sentence correction, with a federal civil rights complaint for poor medical treatment or compassionate release, or with a letter or phone call to handle other matters like transfers and other services.

 

Federal Legal Center, Inc., an Illinois not-for profit corporation,

113 McHenry Rd. #173, Buffalo Grove, IL  60089.

 dgilna1948@yahoo.com

 

(847) 878-0160

Bureau of Prisons Clemency Fails to Live Up to Expectations

Highly-Acclaimed Program Has not Lived Up to the Hype

 

By Derek Gilna

 

            Clemency relief is something that caught our imagination many months ago, when the BOP program to apply over Corrlinks got everyone excited.  Recently, however, I have come to the conclusion that the highly-touted BOP clemency process (not private applications) is about as reliable  as that almost daily inmate.com rumor that Congress is about to reduce federal sentences by one-third. With less than 100 petitions granted out of 20,000 funneled through the BOP program, one has almost a better chance of hitting the lottery than getting a BOP-generated clemency.

It’s not that the President’s heart is not in the right place-it is.  You saw that by the fact that he went to El Reno prison.  No matter how many coats of paint you put on a jail, it still looked like a jail, and there was evidence that the experience affected him deeply. (More federal officials and judges should make the same visit.) However, despite the President’s good intentions, it appears that the DOJ, whether intentional or unintentional, has done everything it could to throw sand in the gears of the entire BOP clemency process. 

 Any attorney volunteering (meaning: “unpaid”) for BOP clemency file review has to endure four 90-minute training sessions before they are even sent files to examine.  How likely is it that many of them will follow the process through to completion, given that it is difficult to even get your attorney to call you back if you are a paying client?   It is my opinion that a mere handful of those BOP applications have been put into the system for processing. There is no method by which you can check where you are in the BOP application process.

If you are interested in refilling your clemency application, I would be pleased to do so at reasonable cost without delay.  Time is running out with Obama leaving office in 15 months.

And while it is true that Congress is now finally working on sentence relief, it will take months before we know whether or not there will be sentence relief, and whether it will be retroactive. In the meantime, as always, your best hope of relief is someone with years of navigating the criminal justice system, and will work with you to win sentence relief.

Federal Legal Center, Inc, an Illinois not for profit corporation

Derek A Gilna, Director

P.G. Miller, of counsel

113 McHenry Rd. #173

Buffalo Grove, IL  60089 

dgilna1948@yahoo.com

Obama Trip to BOP Prison Is A Big Deal

Obama Prison Visit A Reason For Optimism

 

By Derek Gilna

 

            For those facing long, or perhaps life sentences, it is often hard to develop or maintain a positive mental attitude about anything.  Negativity and hopelessness can easily creep into your psyche when proposed sentencing reforms do not address your particular offense. However, for even the most hopeless prisoners, the President’s scheduled visit to El Reno Prison, in Oklahoma, this week should be cause for optimism.

            Finally, the President has begun to address issues of concern to his core political constituency, mass incarceration.  Although the American criminal justice system is clearly racist, as pointed out by former Attorney General Eric Holder, its injustices are not limited just to people of color but to economically disadvantaged or abused individuals of all races..

 This dysfunctional system can only exist as long as American society is ignorant of its existence and impact on their daily lives, and realizes that this problem can no longer be ignored. Visits like this one will only draw needed attention from members of the general public and the mass media. The buzz is growing.

I’m sure the BOP is NOT looking forward to this visit, even though you know they will clean up that prison (and put palatable food in the chow hall for at least one day) and do their best to keep the President and his handlers from seeing how prisoners really live.  Nobody in the far-flung, poorly supervised BOP likes to see their boss come to town, especially not the big boss.

That’s because institutions like the BOP are not used to doing business in daylight, and do their best to hide behind “correctional necessity” in avoiding publicity.  (Only recently, PLN won a major lawsuit compelling the BOP to answer FOIA requests for prisoner lawsuit data doing back TEN YEARS.)

Most importantly to the incarcerated, both House and Senate Justice Subcommittees have promised prompt hearings on pending legislation for prisoner relief, and my prediction is that the news out of Washington will only get better because of the political momentum beginning to build.  And once that train of prisoner relief builds up some speed and the public learns the ugly truth about what has been hidden from their view for so long, the American criminal justice system will never be the same again.  Let me know when you are ready to punch your ticket.

 

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

  dgilna1948@yahoo.com

Johnson v. US: A Landmark Decision for Prisoners

Supreme Court Voids Residuary Clause of ACCA in Landmark Decision

 

By Derek Gilna

 

            In a  landmark decision  to, the U.S. Supreme Court has struck down, voided, and set aside the residuary clause of the Armed Career Criminal Act (ACCA), while leaving the rest of ACCA intact. The impact of this cannot be overstated for those who received mandatory minimum sentence based upon the residuary clause.

            Simply put, in Johnson v. U.S., 13-7120,  the Supreme Court ruled that a district court as a part of the sentencing process cannot increase a sentence based upon the language of ACCA’s residuary clause; unfortunately, the court said, many district courts have classified as violent crimes offenses which did not rise to the level of violent acts, accepting the argument of prosecutors in almost every instance that they argued for an ACCA mandatory minimum sentence.  I must emphasize the rest of ACCA has been left intact, so if you were sentenced under anything OTHER than the residuary clause, this decision does not assist you.

            Since the residuary clause has been found to be unconstitutional, this means that relief cannot be denied to those whose appeals or habeas corpus claims are still pending. A strong argument exists for vacating the sentences of even those where appeals have been exhausted.  However, the court has not stated that the decision is retroactive in its application, so these arguments must be made with caution.  However, those who received sentences based upon the residuary clause finally have an argument that they can make that the courts will have to listen to. As stated by the Supreme Court, “imposing an increased sentence under ACCA’s residual clause violates due process.”

 

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

  dgilna1948@yahoo.com

Smarter Sentencing Act Progresses in House and Senate

Smarter Sentencing Act Continues to Gain Support

 

By Derek Gilna

 

In a week where no new Supreme Court decisions impacted prisoners, and no new federal clemency petitions were granted, I turn my attention to Congressional action on the Smarter Sentencing Act of 2015. The Act would reduce the mandatory minimum sentencing for drug offenses, and reduce sentences of “couriers,” defined as those whose “offense was limited to transporting or story drugs or money.”

 I previously reported on the recent Bipartisan Summit on Criminal Justice Reform, where a group of lawmakers, activists, and political operatives from many different ideological backgrounds discussed this bill and others like it.  Conferences like this make it easier for Congressmen and Senators to support prisoner relief legislation.

The conference also focused on the Redeem Act, a bill that proposes a number of reforms on solitary confinement and the sealing of some criminal records, and other legislation that would allow prisoners to access Pell Grants to further their college education while in prison.  These legislative proposals and the positive energy from sentence-relief conferences and news articles have helped to produce a positive energy that will only help the cause of sentence reform.

It appears, although some observers are skeptical, that Democrat Hillary Clinton will run her Presidential campaign from the left, and she has already made noises about pushing sentencing reform.  Rand Paul, on the Republican side, has also been a consistent supporter of reform, and recently gained widespread positive publicity for his defeat of some of the National Security Agencies domestic surveillance capabilities (also widely used for warrantless-and illegal- surveillance of many now in federal custody.)

Meanwhile, the Smarter Sentencing Act continues to steadily pick up co-sponsors, a sure sign that it is gaining momentum in the votes department. As of June 3, the House version had 44 cosponsors from both parties (out of 435 Representatives), while the Senate version had 12 (out of 100 total Senators). Obviously the closer it gets to a majority of each house acting as co-sponsors, the more likely it is to pass and become law. It has not yet been voted out of Committee in the Senate, but that may be attributable more to the fracas regarding the confirmation hearings of the new Attorney General than anything else.

 

Derek Gilna, 113 McHenry Rd., #173, Buffalo Grove, IL  60089. dgilna1948@yahoo.com. (847) 878-0160.

 

 

New Evidence of Serious Prosecutorial Misconduct

Entire Orange County Prosecutor’s Office Disqualified for Misconduct

 

By Derek Gilna

 

            An isolated incident or just the tip of the iceberg?  Many of you in custody already know the answer.  The ENTIRE legal staff of the Orange County, California Prosecutor’s Office (250 attorneys) has been disqualified by a federal judge in that state for prosecutorial misconduct, including the systematic concealment of exculpatory evidence and the use of coached, perjured testimony of confidential informants and jailhouse snitches. Judge Thomas Goethals took the extraordinary action after reviewing facts in the case of Scott Dekraai in Santa Ana, California.

            An investigation showed that, coached by prosecutors and sheriff’s deputies,, jailhouse snitches fabricated the confessions implicating dozens of prisoners.  Additionally, prosecutors and deputies constructed an entire computerized data base that remained secret regarding this jailhouse informant system, and concealed its existence despite numerous specific discovery order issued by the Court.

            What does this mean to your case?  My experience shows that state and local law enforcement are much more prone to this kind of affirmative concealment than federal authorities, but this is not always the case, especially where state and federal authorities work together on an investigation.  There is one case in Texas that I am working on where I know that a similar scenario took place.

            However, there have also been dozens of cases that I have reviewed where the entire body of evidence in the case, including many raw investigative materials that might have assisted defense lawyers on the district court level, was either not requested by defense counsel, or not produced. (The Brady case requires ALL of this material to be produced, whether requested or not.)

            The problem of course is proof, and that is always going to be the sticking point.  In instances where true prosecutorial or law enforcement misconduct has occurred, some investigation and digging is necessary.  To convince a court, it is not enough to have a mere suspicion; you must have some hard evidence, either in the form of affidavits, or some other proof to show that you are innocent of the charges of which you were convicted. Whoever you hire to handle your case must also know where to dig, for facts not only on your case, but other related cases in the same jurisdiction, because bad apples come by the basketful, not one at a time.  There are experienced prisoner-rights counsels in these jurisdictions, many of whom have worked with Prison Legal News, handling cases at reasonable costs.  Do you have such a case?

 

Derek Gilna, 113 McHenry Rd. #173,

 Buffalo Grove, IL  60089.

  dgilna1948@yahoo.com

Smarter Sentencing Act Reintroduced with Beter Chance of Passage

Reintroduction of Smarter Sentencing Act Has Broad Bipartisan Support

 

By Derek Gilna

 

            The Smarter Sentencing Act (SSA), first introduced in 2014 and reintroduced into the current, two-year Congressional session, with many co-sponsors from both major political parties, is the newest manifestation of the country’s disgust with the current state of the federal criminal justice system.  There has been both rioting and peaceful protests around the country against that system.  While DOJ and BOP officials trumpet a paltry reduction of 5000 in the federal prisoner count, to 215,000, tens of thousands of prisoners still languish, and their families and communities suffer unnecessarily.

            We are all familiar with SSA’s provisions, which give some degree of power back to the judges to mitigate the burden of mandatory minimum sentencing, and curb some the system’s worst abuses. I like its chances of passage.  Like any struggling addict or alcoholic, however, the federal criminal justice system continues to be “hooked” or “drunk” on the big-business of mass incarceration.  Over-zealous prosecutors continue to harass defendants and their over-worked public defenders or underpaid appointed counsel into one-sided plea agreements, and punish those exercising their Constitutionally guaranteed right to jury trial with long sentences and added enhancements, and allow hearsay evidence and “Ghost Dope” to affect sentencing. 

            However, public support for this system has collapsed.  Even the aged Senator Charles Grassley of Iowa, Chairman of the Senate Judiciary Committee, a roadblock to sentencing reform, is feeling the heat.  Over 50 Iowa pastors recently signed a bill imploring him to support federal sentencing reform. “The time has come...to consider the various bipartisan bills, reach consensus, and enact broad reforms that respect ..dignity, …limit disproportionate sentences,…and encourage reintegration of (released prisoners),” they wrote.

            Also feeling some hear, the US Attorney in Chicago  recently tossed dozens of drug cases based upon “stash-house”  entrapment (where agents trolled and encouraged known felons to burglarize houses they claimed held drugs) when they were criticized by more than one federal judge for unfairly targeting minorities. The US Supreme Court recently struck down a North Carolina law requiring GPS monitoring of certain defendants after they had already completed their sentences, a violation of Fourth Amendment guarantees against unreasonable search and seizure.

            There has also been new public pressure on improving on better programming in the BOP system, which in the past in the BOP has often merely constituted “check off the box” instead of actual education. A new bill introduced recently calls for the return of Pell grants to help pay for prisoner college studies. More and more lawsuits are being filed regarding poor medical treatment (including several by this office), and pressure on the BOP to actually implement the compassionate release policy already on its books (including a recent one granted from Butner by me), as well as constant pressure on the BOP bureaucracy to actually do its job as spelled out in their program statements. It is only the beginning.

           

 

Derek Gilna, 113 McHenry Rd. #173, Buffalo Grove, IL  60089, dgilna1948@yahoo.com

White-Collar Sentencing Changes

White Collar Sentencing Changes Sent to Congress but No New Clemencies

Other New Prospects for Sentence Relief After Denied Appeals, 2255's

 

by Derek Gilna

 

            As expected, the newest US Sentencing Commission changes for this cycle have been sent to Congress, and will become effective November 1, 2015.  There is still no word on retroactivity.  Included in those changes are amendments to the concept of "Relevant Conduct," generally used by federal prosecutors to unfairly add sentence time above and beyond that agreed on in good faith by the accused in plea negotiations. Although I don't think that the changes go far enough, it's a start.  Once again, we will wait to see what the retroactive application is of these changes.

            Unfortunately, there have been no new clemencies granted since Easter, and although I remain cautiously optimistic,  this administration still is on pace to underutilize this sentence relief option compared to previous Presidents.

            I would like to revisit the case of BEGAY (Begay v. US,553 US 137, (2013), which according to our friends in the law library at FCI Sheridan, Oregon, has been successfully applied in recent 2241's filed in the 9th Circuit to vacate sentencing enhancements.  As we know, 2241's are an underutilized procedural tool when used properly to attack various inconsistencies in the sentencing process, even when you have already failed on direct appeal and 2255 filings.  Here's how it works in BEGAY fact situations.

             First, you have to have prior state offenses that although they sound like they would be serious crimes, do not meet the federal definition of predicate violent offenses.   In Begay's case it was DUI offenses, which the SC noted were not violent offenses that qualified as enhancing predicate offenses in alleged Career Offenders Situations.  This precedent has been followed already in the 9th, 8th, and 7th Circuits, with only the 5th standing athwart the progress on the issue, on other grounds. It is unsettled law in other circuits.

            Obviously, there is much more to say on  this issue than this brief summary allows, and 2241's can be granted for other reasons other than a Begay issue, but the possibility of sentence relief is there, if properly researched and addressed.  We look forward to your questions on whether you qualify for this relief.

 

Derek Gilna, JD

113 McHenry #173

Buffalo Grove, IL  60089

(847) 878-0160

dgilna1948@yahoo.com

 

           

Hillary Clinton's Speech Should positively Impact Sentence Reform

Sentencing Commission and Congressional Legislative Updates

 

By Derek Gilna

 

            On April 30, the U.S. Sentencing Commission promulgated its newest white-collar sentencing reforms, which will have the effect of lowering sentences for most offenders. That new sentencing change will go into effect in November unless changed by Congress (which has never happened.)  There is no word yet on whether said changes will be retroactive. Additionally, the Smart Sentencing Act continues to work its way through Congress, and hopefully will gain some traction in the coming months as candidates try to position themselves as ahead of the curve on social reform, highlighted by the riots against police misconduct in Baltimore and demonstrations in major cities across the country on this and similar social justice issues.

In the past week, I commented on Hillary Clinton’s most recent major speech which focused on sentencing and incarceration reform.  Although that speech carved out no new ground and offered no immediate legislative solutions, it did put these two oft-ignored subjects front and center into the Presidential race.   Floating these ideas early in the election cycle was a low-risk method of gauging public opinion on them before the campaign really gets into full-swing, and gives her a chance to respond to any negative reactions.   Although almost everything Hillary says is automatically attacked by her opponents, these comments were not.  This is significant for several reasons.

            One, Congressmen and Senators are not leaders, and shun controversy. Widespread public condemnation of recent police and prosecutorial misconduct, coupled with Hillary’s comments, has created political cover for legislators to actually do something to promote sentence reform.

            Two, contrary to what the media says, there is little to no difference between the major political parties on any major issue, other than nonsensical social ones that arguably should NOT be an area of government concern anyway (like abortion and same-sex marriage). Getting out front on an issue like sentence relief and prison reform allows a candidate to set himself or herself apart from the rest of the “suits” as a compassionate, forward-thinking individual worthy of a vote, while also allowing them to emphasize economic and tax savings from a reduction of prisoner counts.

            Third, the speech shows that the “War on crime” is, if not dead, on life support.  “Soft on Crime” is also a campaign catch-phrase that is D.O.A.  There is no major public figure in either party seeking longer sentences or seeking an increase in prisoner counts.

            I would be pleased to work with you in reviewing your case and seeing if you are entitled to relief, either from  sentencing errors, poor defense attorney representation, inadequate or deliberately indifferent prison medical care, or failure to grant a deserved compassionate release. 

 

Federal Legal Center, Inc.

 

Derek Gilna

113 McHenry #173

Buffalo Grove, Il  60089

(847) 878-0160

dgilna1948@yahoo.com

Supreme Court News

Special Newsletter for April 22, 2015

 

By Derek Gilna

 

            The US Supreme Court has once again pushed back against overly intrusive government searches of defendants in a routine encounter with police where police have no grounds for such a search.  The newly-announced decision in Rodriguez v U.S., 13-9972, reversed and remanded an Eighth Circuit ruling that the search of defendant’s car by a drug sniffing dog was within the scope of the traffic stop for a minor traffic violation, and that an eight-minute delay for the motorist was constitutionally acceptable.

            Not so fast, the Supreme Court said, calling the search “unlawful.” The Supreme Court has previously struck down convictions based upon evidence gained as a result of a warrantless placement of a GPS tracking device on a defendant’s motor vehicle.  Interestingly, Justice Scalia, generally known for his conservative views, once again joined the majority of justices to further limit government’s ability to arrest people without probable cause. The justices were not persuaded by the government argument that the intrusion on defendant rights was justified by the Government’s interest in stopping the flow of illegal drugs. (This is the same faulty Government rationale used to justify TSA searching Granny at airports in the name of stopping “terrorism.”)

            It is hard to overestimate the value of this decision.  Although obviously it is limited to the facts of this case, it sets clear limits on what is and isn’t acceptable in police stops.   Of course, it would not be helpful in cases where the defendant is already under investigation by police or fleeing the scene of a crime.

            Brick by brick the high court is starting to slowly build a wall of protection of citizen rights, to rein in the natural tendency of law enforcement to expand its power beyond what is necessary to perform its core function of protecting its citizens against violence and disaster.  All we have to do is read the newspaper to see that the public is fed up with police misconduct in patrolling the streets, and ready to have a discussion as to what and what is not proper policing.

Is this ruling applicable to your case and your set of facts.

 

Derek Gilna

113 McHenry #173

Buffalo Grove, IL  60089

dgilna1948@yahoo.com

A Small Victory for Prisoner Dignity

Prisoner’s Battle for Decent Medical Care Humbles BOP, Wins Cash Settlement

 

By Derek Gilna

 

            Those of you who follow this newsletter know that I have been honored to be a writer for Prison Legal News (PLN), a publication that has been a champion for prisoner rights and a tireless campaigner for decent treatment of federal prisoners.   Recently in that capacity, I submitted an article to PLN about a prisoner who, filing pro se, won a hard-earned settlement against the BOP for shoddy medical care, not for a life-threatening illness, but for one of those myriad examples of deliberate indifference to those everyday medical issues that, if ignored, can often turn into larger, life-threatening conditions.

            This news item will not gain big headlines, but it is an example for all of us as to what can be accomplished by a slow, steady effort of using the documents and procedures that currently exist to win relief.  Although a competent legal professional would have surely won more settlement money than he was able to obtain while confined in the federal system, it shows that many judges do take these administrative procedures and prisoner court filings seriously.

            Michael Alan Crooker filed a Federal Tort Claims (FTCA) under 28 U.S.C. Sections 2671-2680 alleging "malicious prosecution, negligence, and medical maltreatment by the United States Marshall's Service ('USMS') and the United States Bureau of Prisons) 'BOP')." The pro se litigant weathered a government motion for summary judgment and endured to win a $8,000 settlement from the federal government.

            Crooker, prior to filing the suit, was a diligent advocate for his own medical treatment, refused to tolerate the continuing pattern of inadequate BOP medical treatment.  The plaintiff then had to endure the standard BOP policy of making life difficult for any prison who dares to challenge this medical indifference by purposely denying him proper corrective eye wear, which included loss of good-time on questionable grounds. Crooker also had complained of the fact that the BOP psychologist had improperly revealed confidential medical information to non-authorized personnel, in contravention of the BOP's own policy statement.

 

            Similar opportunities for relief exist for you, if you are only willing to take advantage of them. Mike Crooker didn’t give up, and won not only some money, but some well-deserved self-respect and necessary medical treatment. The BOP paid the settlement money into Crooker's commissary account, making him, at least for a time, a very popular man on the pound.

Derek Gilna
dgilna1948@yahoo.com

Sentencing Updates

Newest Trends in Sentencing Relief

 

By Derek Gilna

 

            Although there was nothing of great substance to report on the Congressional front in the quest for retroactive sentencing relief, the two-level drug reduction and clemency cases continue to move slowly and at an uneven pace through the justice system, depending upon your court’s location, case load, and level of interest.  There is also some news to report on both life sentences and sex cases, based upon new U.S. Sentencing Commission (SC) reports.

            To put all of this in perspective, a quick analysis on how the federal bureaucracy works is in order.  First, there is a private discussion among prisoner relief organizations, members of Congress and their staff, and the Sentencing Commission.  At some point, this discussion goes public, but the broad parameters of relief have already been decided behind closed doors.  This was the pattern followed in the crack reductions,  the two-level reductions, and the pending white-collar reductions.

            However, it has been little noticed that the high number of drug-related, non-violent offenses has been the subject of a March, 2015 SC report which indirectly criticizes the number of such sentences (most of which are given after an adverse trial verdict), and notes that many other mandatory minimum sentences also are in effect life sentences, given the offender’s life expectancy. Sex offender sentencing earlier came under similar scrutiny by the SC in early 2013, with little follow-up discussion in the media thereafter.  Nonetheless, it does appear that some behind-the-scenes dialogue is taking place on these draconian sentences that bear little relationship to actual harm caused.  The SC called the sentencing levels “outdated” and subject to “widespread inconsistent application.” When further progress is noted on both areas, I will so advise you.

            In the meantime, I am available to handle  any issue that you might have in the court system and the prison system, including moving along any filings that you already have dragging along without apparent progress. To the extent that direct, non-pro se legal action is needed in the many scattered federal district courts, I work with attorneys all over the country who charge reasonable fees and who are pleased to present the pleadings or other documents that I have drafted. I have been involved in the federal courts not for months or years, but decades.  Put that experience and perspective to work for you.

 

Derek Gilna

113 McHenry #173

Buffalo Grove, IL  60089

dgilna1948@yahoo.com

(847) 878-0160

Prosecutorial Misconduct Costs a Life in Texas

Legislative Updates and Prosecutorial Integrity

 

By Derek Gilna

 

            Most legislative relief activity in Congress in 2015 has been confined to the reintroduction of the bills that expired without being passed in the last session that ended in December.  One of the new ones, known as the “Democracy Restoration Act,” would restore voting rights to prisoners returning to their communities after release, assisting in their reintegration.  I will keep an eye on this and other legislation of interest.

            In almost all of the cases that I review I find evidence of prosecutorial misconduct in one form or another.  Other than the usual problems of over-charging, bullying of defendants to get them to testify against others (whether the testimony is truthful or not) in return for sentence reductions, threatening undeserved enhancements, or the like, there are other even more egregious instances. Attorney General Holder has issued what amounts to his own executive orders regarding some of the worst of these practices, but his pronouncements lack the force of law for those already convicted as a result of this type of behavior.

            However, there are instances of prosecutorial misconduct that, if proven, can win an evidentiary hearing which can result in re-sentencing and less time in jail.  The mainstream media has begun to cover this phenomenon, and this bodes well for getting the public to become aware of this problem and press for more change.  However, the cases and laws on these items are already on the books.  What is needed are more cases brought to highlight the problem, to force prosecutors to take a new look at their practices and reform themselves or face public censure.

            One of these cases is that of a Texas man, Cameron Todd Willingham, executed after being convicted of murdering his three children.  It turns out that the forensic evidence was completely bogus, The prosecutor in that case, John Jackson, did everything he could to cover up the faulty evidence, obtain bogus testimony against Willingham, and hide potentially exculpatory evidence.  As a result of Jackson’s efforts, all appeals were denied, and an innocent man was put to death.

            Although the loss of even one innocent life is a travesty, what about the thousands of other lives of people in the federal prison system who are not guilty of the charges against them, or who were denied the right to properly use exculpatory evidence or who were wrongfully denied the ability to discredit the perjured or exaggerated testimony of informants used to convict them?  They also deserve relief, and quality assistance.  I’m here if you wish to move ahead on this or other issues that might win sentence relief.

 

Derek Gilna

113 McHenry #173

Buffalo Grove, IL  60089

Dgilna1948@yahoo.com

Justice

"'Justice' is nothing other than the advantage of the stronger."

by Derek Gilna

This quotation, attributed to the ancient Greek philosopher Plato, neatly sums up the challenge of those seeking "Justice" in the American judicial system. The "stronger" will not voluntarily, or willingly, give up their advantage without a fight, and a prolonged one at that. If you are not in it for the long haul, you are generally better off not starting the process. You need a friend, an advocate.

Understand that many appointed criminal defense attorneys and many public defenders, are not your friends in this process. They are at best indifferent to your circumstances, and not committed to your welfare. They don't read your documents, talk to your witnesses, or insist on full discovery Beaten down by the process, they often just go through the motions. You need someone to reexamine your case, get the facts, and see what can be done. There are options.

Then there is the system itself. If you are aged, infirm, or ill, a stretch in the BOP can easily become a death sentence. Once again, you need someone to advocate for your interests, to ensure you leave prison in better health than when you entered it. This is also not an easy process. You need someone who is familiar with the process.

Remember, the courts are not unsympathetic to prisoners and their plights, and are increasingly showing a willingness to enforce constitutional protections for prisoners and give them an honest hearing when the facts of the case so dictate. Federal judges have lifetime appointments and many go out of their way to show their independence of the federal government, and if necessary, put prosecutors in their place. You need your facts presented in a concise and persuasive manner, by someone familiar with the system, and who can marshal those facts and wield them so that the advantage lies with you.

Derek Gilna, 113 McHenry, #173, Buffalo Grove, Ill 60089.

dgilna1948@yahoo.com

(847) 878-0160

derekgilna.blogspot.com

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