Beckles Argument Creats New Hope for Federal Relief

Monday's Supreme Court Argument on Beckles Completed; Early 2017 Decision Likely

 

            The U.S. Supreme Court (SC) held its long-awaited argument in Beckles v. US this past Monday, and the results were positive. Beckles was questioning the constitutionality of the residual clause in the career offender section 4B1.2 of the guidelines after the Johnson case found an identically worded residual clause in the ACCA statute unconstitutionally vague.

             Both the petitioner and government attorneys agreed that a favorable ruling on the guidelines vagueness issue would retroactive on collateral review. Counsel for Beckles argued that the guidelines language at issue was virtually identical to that of the ACCA residual clause, which the Johnson case  found vague and unenforceable, and implied that it was up to the SC to interpret the language in a consistent fashion.

            Defense counsel then concentrated on the retroactivity argument (essential to prisoners seeking relief), citing Welch v. U.S., Montgomery v. Louisiana, and Miller v. Alabama, which all  were found to be retroactive. The government's attorney then argued that if the court found guideline vagueness in this case, that it was merely procedural , and hence, not retroactive, but this argument was met with some skepticism by some of the justices, who were concerned that a finding on the issue "vagueness" might put all of the Guidelines rules in jeopardy. The government then argued that since it conceded the issue of retroactivity, that the vagueness issue could be put aside for now.

            The government's argument was: "no circuit has actually ruled on retroactivity...(but) have ruled on vagueness.  All except ...the Eleventh have either said vagueness applies to the Guidelines and the residual clause falls, (or) they have said we accept the government's concession that vagueness applies."

            The government conceded that many district courts and appellate courts have already indicated their view on the subject and have already started granting relief to petitioners, essentially pushing the SC in the direction of retroactivity in future cases concerning the 4B1.2 vagueness issue.       

            The court-appointed amicus counsel argued that since the guidelines system of discretionary sentencing, despite its argument, was preferable, but he drew few questions, an indication that his argument was not well received by the justices.

            In summary, the retroactivity issue looks to be favorably decided, given the government's concession, and the justices appear to think that it is substantive rather than just procedural. It appears from the questions that Beckles will be a favorable decision, hopefully by an outright majority rather than a plurality, and may well open the door a little wider for even more vagueness challenges on Guidelines provisions that began with the Booker holding that the Guidelines were only advisory.

Trump Presidency Should Not Slow Pace of Justice Reform

Trump Presidency Does Not Mean End of Justice Reform; Expect More Commutations

 

by Derek Gilna 

        In response to many requests, we are writing today about what prisoners should expect from a Trump administration. Fortunately for prisoners on both the state and federal level, this change, by itself, is just one factor that will impact prisoners. Sentence relief was not a partisan interest in this election, and although Democrats like Bernie Sanders talked a lot more about the issue, it was more in the context of increasing social justice, attacking Wall Street, and the like. No major player in the Trump campaign opposed sentence relief or the bills currently before Congress.

         But, other people say, Trump was the “law and order” candidate. However, Clinton was not AGAINST law and order, just in favor of Black Lives Matter, appealing more to her African-American voting base, who were concerned about excessive police violence. However, Trump also tweeted his concern about police violence.  This was NOT a major issue in the campaign, so let’s not get sidetracked.

         Congressional votes on justice reform were delayed because legislators didn’t want to “stir the pot” before the election, but the election is now over.  It is likely that there will now be a major push to call  the sentence relief legislation for a vote in the “lame duck” session. Both the Republicans and Democrats in leadership positions are in favor of the major bills. Now, with the Republicans controlling the Presidency (as of January 20) and both houses of Congress, they have no excuse for delaying.   We will help hold their feet to the fire (more on that in the future).

         Another positive factor is that Trump campaigned on assisting the common man, and reached out to the Black and Hispanic communities;  he got 2% more votes than Romney did in 2012. Dr. Ben Carson will have a major position in this administration. Also remember that all DOJ statistics show that decreasing incarceration has NOT increased crime, and politicians are tired of prioritizing prison expenses. The fewer the prisoners, the less expense. Our guess is that as a businessman, Trump would be receptive to the economic savings and “smaller government” arguments of a smaller criminal justice bureaucracy.

         We are hopeful that President Obama, before he leaves office, will accelerate the commutation process.  It is an understatement to say that we are profoundly disappointed about his lack of leadership of pushing sentence reform, especially when he had Democratic control of Congress in 2008, but wouldn’t object to a few thousand more over-sentenced prisoners being released.

        Finally, there is little public support for the lack of accountability shown by federal agencies, like the BOP, who hate publicity and public attention to its many shortcomings.  Many faith-based groups have taken up the cause, and is there any question they could do a better job of rehabilitation than the BOP has done, for less money? Trump got 81% of the Evangelical vote, and should be receptive to reform and shrinking the BOP. Forcing the BOP to follow its own Compassionate Release policy would be a good place to start.

 

 

 

Commutations Continue as Obama's Presidency Winds Down

More Commutations: Rare Federal Not-Guilty Jury Verdict; Yale Law School vs. BOP

 

by Derek Gilna 

            Ninety eight more federal prisoners got good news in the past week that their sentences had been commuted, although most had conditions of drug education attached to the shortened sentences.  Nonetheless, any reduction of the draconian sentences of the past twenty years is good news. There will be more to come.

            One recent not-guilty jury verdict caught our eye, the case of the non-violent federal lands standoff by Ammon and Ryan Bundy, who had been charged with possession of firearms in a federal facility and conspiring to impede federal workers from their jobs at the Malheur Nation Wildlife Refuse, 300 miles southeast of Portland, Oregon.

            Of the 26 occupiers charged with conspiracy, eleven pleaded guilty, one had his charges dropped, and seven chose to be tried at different times. It is extremely rare for any conspiracy defendant in a case with multiple defendants to be found not guilty. Perhaps the increasing lack of faith in government officials was a factor in the jury's not-guilty verdict. 

            Finally,  Yale Law School, the alma mater of Bill and Hillary Clinton, as well as other luminaries, has sent a letter to the Bureau of Prisons requesting an end to the long-standing policy of limiting phone minutes to 300 minutes a month, except for holiday months.

             Citing the BOP's own written policy that it recognizes the importance of maintaining relationships during incarceration, Yale was sharply critical of a "BOP policy (that) is deeply misguided." We write to ask that the Bureau ...rescind the 300-minute limit on telephone access." Also signing the letter was Paul Wright, Executive Director of the Human Rights Defense Center, the parent organization of Prison Legal News.

Commutations Continue; Clinton Email Treatment Shows Justice Favors Wealthy

Additional Commutations Give Hope to Remaining Applicants;

 SCOTUS Accepts Manuel v City of Joliet Case Regarding Police Misconduct

 

            The granting of an additional 102 commutations with only approximately three months remaining in President Obama’s term of office was yet another step in the right direction, bringing the total number of commutations to 774, out of 191,965 federal prisoners still in custody as of the end of September. Although none of our applicants were among the lucky ones in this batch, estimates are that at least 1500 remaining applications might qualify for relief. All of you who have not gotten outright rejections are apparently still in the mix, so keep your fingers crossed.

            There are other big stories, however, that also have an impact on the sentence relief landscape. Whatever your preference in this year’s presidential election campaign, the big loser so far has been the credibility of the FBI and the DOJ.  Over 60% of the American public feels that the democratic candidate caught a huge break (no kidding!) by not being prosecuted, helping to make more believable the truism that American justice favors the wealthy.  What makes this unusual is that the public generally likes to ignore criminal justice inequities because it generally thinks that prosecutions happen to “bad people,” or “people that deserve it.” Courts have begun to notice this shift in opinion.

            The Supreme Court recently accepted the federal civil-rights case of Manuel v. City of Joliet, where the Joliet, Illinois police department was sued for a traffic stop that discovered only vitamin pills, wrongfully booking him for drug possession, and holding him in custody for six weeks without evidence. This follows the continuing pattern we have seen of police misconduct in the arrest, interrogation, and prosecution process, and the authorities doing their best to cover up their collective misconduct.

            Those in custody know all too well that the justice system does its best to hide its mistakes, but the spread of technologically-based investigation techniques has begun to overcome this. However, even the incorrect rulings of inherently prosecution-favoring district court judges can be overcome at the appellate level with a strong argument backed up with sufficient evidence. 

Bureau of Prisons Barred from Recording Prisoner Attorney-Client Calls

Kansas Federal Judge Ends Recording of Attorney-Client Calls In State’s Federal Prisons

Several months ago we wrote about the practice of BOP officials being heavily criticized for making recordings of attorney-client calls and emails sent and received through the prison phone and email systems, a practice that a recent bill in Congress specifically addressed. That bill has not yet been voted on, but a federal judge in Kansas banned all such recordings in a recent ruling. US v. Black, et al., 16-20032.

Although that ruling only affects attorney-client conferences and calls in that state, it is the first known ruling specifically barring the practice, whereby such recordings were routinely sent to U.S. Attorneys.  The ruling came about as a result of the exposure of the practice at a CCA-run federal facility at CCA Leavenworth.

This practice regularly occurs in all BOP facilities, with staff members routinely taking turns listening in on prisoner calls and reading Corrlinks emails that mention staff members or other “hot” topics. Of course, this is all the more reason to continue the practice of using legal mail for confidential communications, and making sure that staff follows the rules regarding such mail.

Of course, signs that warn that the “BOP reserves the right to monitor all calls and emails” abound in prison, ostensibly for institutional security. We at FLC have some other suggestions for other signs that might be appropriate to protect the unwary: “Warning:  Prison Food may not meet federal standards;” “Warning: Prison medical care may not meet American Medical Association Standards.”  Any other suggestions?

Federal Legal Center, Inc.

113 McHenry Rd. #173

Buffalo Grove, IL  60089

federallc@yahoo.co

Commutations of Federal Prisoners HIt All-Time HIgh With 214 Set to Be Released

President Issues 214 Additional Commutations, Promises Many More in Future

 

            President Obama issued 214 commutations this week, spurring hope that the pace will increase as he nears the end of his term in January of 2017. This latest batch, the largest issued in a single day since 1900, according to the White House, brings the total of commutations to 562.

            A commutation ends the punishment, but does not wipe out the conviction.  People granted commutations will not go home immediately, but will be transitioned to a halfway house before being released and put on supervised release.

            Prisoner-rights advocates applauded the gesture, but noted that the number of people released to date is still minimal when compared to those still in federal custody for excessively long sentences, less than one-third of one percent. As before, almost all of the commutations were for drug crimes, although some were for combined drug and weapons charges.

            White House counsel Neil Eggleston wrote, “Our work is far from finished. I expect the President will continue to grant clemency in a historic and inspiring fashion.” Eggleston noted that although the White House is committed to even more commutations, only Congress can bring about lasting changes.

            Sentence relief bills have been stalled in Congress, although many hope that they might pass either before the November election or shortly thereafter, citing the widespread bipartisan support for some legislation. “It is critical that both the House and Senate continue to work…to get a bill to the President’s desk,” he said.

            According to Mark Osler, professor of law at St. Thomas University, there were still 11,861 commutation petitions pending as of June, and the professor said a minimum of 1,500 of those qualify for relief under the Administration’s Clemency Initiative Project criteria, launched with great fanfare. Other noted that although Obama has granted a large number of commutations, he has been stingy with pardons, generally considered more useful in assisting former prisoners who are seeking work or looking to vote or obtain gun rights.

            Former Pardon Attorney Deborah Leff, recruited from private practice to oversee the Clemency Project at the Justice Department, quit earlier in the year and expressed dissatisfaction that the pace of action did not match the publicity, and because her recommendations were often overruled.

            The President has apparently gotten the message, and his staff, in announcing the most recent commutations, said the pace of sentence relief will continue to accelerate, promising relief of “historic proportions.”

DOJ Lawyers Forced to Undergo Remedial Ethics Training

Judge Rips DOJ Lawyers for “Series of Misrepresentations,” Orders Ethics Training

 

By Derek Gilna

 

            In only the most recent instance of gross misconduct on the part of U.S. Department of Justice attorneys, but one that is noteworthy for the fact that it was actually punished severely, a Texas federal district court judge has blasted DOJ lawyers who he found deliberately misled him. Andrew S. Hanen, a judge of the Southern District at Brownsville, has ruled that these attorneys lied regarding the implementation of President Obama’s executive order to the Department of Homeland Security (DHS) known as the Deferred Action for Childhood Arrivals (DACA).  The action was before him on a consolidated lawsuit challenging that order filed by 26 state attorney generals.

               Hanen said in his opinion filed May 19, 2016, that the “unseemly and unprofessional conduct of these lawyers concealed the fact that Obama’s order was already being implemented when they already had knowledge that this was not the case.”

           Sfice it to say the Government’s attorneys effectively misled the Plaintiff States into foregoing a request for a temporary restraining order or an earlier injunction hearing. Further, these misrepresentations may have caused more damage in the intervening time period and may cause additional damage in the future. Counsel’s misrepresentations also misdirected the Court as to the timeline involved in the implementation of the 2014 DHS Directive, which included the amendments to the Deferred Action for Childhood Arrivals (“DACA”) program.suffice it to say the Government’s attorneys effectively misled the Plaintiff States into foregoing a request for a temporary restraining order or an earlier injunction hearing. Further, these misrepresentations may have caused more damage in the intervening time period and may cause additional damage in the future. Counsel’s misrepresentations also misdirected the Court as to the timeline involved in the implementation of the 2014 DHS Directive, which included the amendments to the Deferred Action for Childhood Arrivals (“DACA”) program.suffice it to say the Government’s attorneys effectively misled the Plaintiff States into foregoing a request for a temporary restraining order or an earlier injunction hearing. Further, these misrepresentations may have caused more damage in the intervening time period and may cause additional damage in the future. Counsel’s misrepresentations also misdirected the Court as to the timeline involved in the implementation of the 2014 DHS Directive, which included the amendments to the Deferred Action for Childhood Arrivals (“DACA”) program.uffice it to say,” he wrote, “ the Government’s attorneys effectively misled the Plaintiff States into foregoing a request for a temporary restraining order or an earlier injunction hearing…Opposing counsel and this Court were assured that no action would be taken implementing the 2014 DHS Directive until February 18,… despite the fact that in actuality the DHS had already granted or renewed over 100,000 modified DACA applications using the 2014 DHS Directive.”

            What bothered Judge Hanen the most was that, “Justice Department lawyers knew the true facts and misrepresented those facts to the …the 26 Plaintiff States, their lawyers and this Court on multiple occasions.”  He flatly rejected DOJ’s assertion that, “the reason its lawyers were not candid with the Court was that they either ‘lost focus on the fact’ or that somehow ‘the fact receded in memory or awareness.’”

            Sadly, the judge added, “there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department… The Justice Department purports to represent all Americans—not

just those who are in favor of whatever actions the Department is seeking to prosecute or defend. The end result never justifies misconduct.” As a final sanction, he barred Justice Department lawyers from appearing in any state or federal court in the 26 states that challenged DACA until they complete a legal ethics court, and revoked the right of out of the state DOJ lawyers in Texas who engaged in the aforementioned misconduct.

 

Bureau of Prisons Medical Care?

Death by Indifference-Surviving BOP Medical Care

 

                        Remember the name Robert Gerald Knott.  He was a severely mentally-ill prisoner at the BOP Supermax at Florence, Colorado, who committed suicide on September 13, 2013.  His estate recently received a settlement of $175, 000 two weeks after suit was filed alleging violation of the Federal Tort Claims Act. Two weeks.

            Knott was only the most recent of extreme examples of the broken BOP medical system.  Although the Veteran’s Administration medical system has gotten most of the bad publicity in recent years, those who are familiar with both systems say that the BOP’s is much worse.

            There is a reason for that.  The BOP, like many government agencies, positively hates ANY publicity regarding its procedures, because the more you know, the more there is to dislike.  The BOP has many problems, and like all government agencies with problems, does its best to conceal them. They have trouble hiring competent staff.  That staff doesn’t understand proper medical procedures.  Even when you are belatedly taken to the free world for competent medical help, there is no follow-up at the institution, and you are often denied the specific medication that would help you.

            Members of Congress, although generally careful to avoid slamming the agency, to avoid any blow-back that might show that Congress has been remiss in carrying out its sworn duties to properly manage those governmental bodies that it funds, (and in the case of the BOP, funds generously). However, even Congress is privately disgusted, and that disgust is shared by the US Sentencing Commission, who just inserted themselves into the Compassionate Release procedure, citing BOP inaction (read, “incompetence.”)

            How do you survive this harrowing process?  Document everything, file BP’s, email confirmation of promised treatment, tell anyone who cares to listen what is going on.  Consider filing a Federal Tort Claims Act, or a 1983 federal Civil Rights suit after the BP process is exhausted.  At the very least, you will not be passively waiting for medical treatment which will probably never come, or if it does come, will come too late.

            As to Robert Gerald Knott, after he was discovered, unresponsive, in his solitary confinement-cell, per BOP policy he was cuffed and shackled on his way to the morgue.

Two Sides to Benefit of New Prison Guard Law

Congress Passes "Eric Williams Correctional Officers Protection Act

 

by Derek Gilna

 

            The "Eric Williams Correctional Officers Protection Act,"  named after a deceased correctional officer killed by a prisoner at U.S. Penitentiary at Canaan, Pennsylvania, passed Congress by unanimous votes. The law provides authority for federal correctional officers to carry non-lethal pepper spray in both medium and higher security prisons.

            The job of correctional officers is certainly not easy, and guards are always outnumbered by prisoners, and there are other dangers for prison employees as well. The United States Department of Justice estimates that at least one-third of all federal prisoners suffer from some form of mental illness, and the BOP has received no awards from prisoner-rights advocates for enlightened treatment of those maladies.

            Representatives and Congressmen were both energetic and unanimous in their praise of the deceased guard, but hopefully they saved some of their energy for consideration of other important issues concerning prisoners: sentencing relief and reform of the broken Bureau of Prison health care and compassionate release programs. Congressional committees and the United States Sentencing Commission have both commented negatively on that agency's inability to properly administer medical care and the compassionate release program for sick, helpless prisoners who often find that even a short sentence of imprisonment can be a death sentence.

            Although the arming of prison guards with pepper spray may seem a great idea to Congressmen cocooned in the fortress-like U.S. Capitol Building, to the prisoner forced to eat  expired prison food, suffer substandard prison medical care, and endure the daily petty indignities of confinement, it does not seem like such a great idea. Prison guards safety depends less on armaments than on good management, fair treatment,  and mutual respect, which is often hard to get given the clear inability of the Bureau of Prisons to properly manage its facilities.

 

 

Supreme Court Makes Johnson Case Retroactive

Supreme Court Decision in Welch Case Makes Johnson Case Retroactive Nationwide

 

            Monday’s U.S. Supreme Court decision in the Welch case, which made the Johnson decision retroactive, is the decision that we have been waiting for to put the key in the lock for federal prisoners with ACCA residual clause issues.  As was predicted here not a month ago, the Supreme Court has held that the Johnson case announced a new substantive rule that has retroactive effect in cases on collateral review.

            In practical terms, this means that there is now no rush to file a Johnson case before the end of June, since the Supreme Court ruling takes precedence and must be applied by all federal courts across the nation.  We estimate that several thousand federal prisoners will qualify for relief under this new holding.

            In making the Johnson holding retroactive, the court noted in Welch, “a majority of this Court concluded that (previous decisions) did not bring sufficient clarity to the scope of the residual clause, noting that the federal courts remained mired in ‘pervasive disagreement’ over how the clause should be interpreted.”  We read that as a rebuke to the circuits who chose to ignore Johnson before today.

            Those of you who are currently represented by us may rest assured that we are examining all of our filings and pending filings to incorporate this new decision. However, if you have Johnson facts, or know someone who does, and wish to take advantage of this landmark case, please contact us immediately.

 

Federal Legal Center, Inc.

113 McHenry Rd. #173

Buffalo Grove, IL  60089

federalc@yahoo.com

 

 

BOP Acknowledges Crisis in Prisoner Medical Care

Bureau of Prisons Struggles to Provide Prison Medical Care, Says

Staffing of Medical Facilities Reaches “Crisis Level.”

 

Reprinted by Permission of Prison Legal News

 

            “BOP administrators have recently acknowledged that several factors, including an aging prison population, medical staffing gaps, and other problems have causing rising problems in providing timely and adequate medical care to prisoners.  This will come as no surprise to the chronically-ill individuals within the system who are subjected to the effects of that system.  It is also the reason for the new medical services ‘survey’ that inmates are now encouraged to fill out.

            According to USA Today, ‘Physicians are paid at least 55% more in the private sector, while dentists are paid at least 112% more outside the system…the government has been increasingly unable to compete with the private sector for medical professionals…’ In other words, this in essence means that the BOP is only able to hire those who are unemployable elsewhere, for whatever reason.

            In one Region of the BOP, there are three physicians on staff, and two of those are in that Region’s Metropolitan Correctional Center, who allegedly provide medical care to tens of thousands of inmates in that Region.  Of course, in today’s medical community, PA’s supply medical care, but PA’s are not trained or intended to act in the place of physicians.

            This explains the recent upsurge of prisoner federal civil rights suits and federal tort claims actions specifically targeting those individuals and institutions responsible for the continuing problem by prisoners who are becoming increasingly more sophisticated in retaining medical records and other evidence.  Once targeted by these suits, prison administrators and medical personnel can no longer say that they are not aware of the problem. Many prisoners feel that without such legal action, that their medical issues and requests for compassionate release would continue to be ignored.

            This upsurge in litigation and complaints has caught the attention of Congressional oversight offices, as well as the DOJ’s Inspector General, and in all probability was the catalyst for the newest prisoner survey. The BOP has indicated that it needs to develop a ‘strategic plan’ to resolve the problem.”

 

Federal Legal Center, Inc.

113 McHenry Rd., #173

Buffalo Grove, IL  60089

federallc@yahoo.com

           

 

Update on Proposed Federal Habeas Corpus Action Changes

Changes Planned to 1983 Prisoner Lawsuit Format A Welcome Development

 

 

            The Washington University Law Review has published a study that they propose to forward to Congress to change the primary litigation component by which prisoners can sue for violations of their civil rights by prison authorities.  Commonly known as 1983 actions, the study notes that in 2015, “inmates filed nearly 27,000 civil rights actions in federal court.”

            Unfortunately, this form was “based upon a model first developed in the 1970’s,” the report continued, and can be “confusing to people not familiar with the law and can diminish their chances of winning a lawsuit,” according to Richard Frankel of Drexel University Kline School of Law and Alistair Newbern of Vanderbilt University Law School.

            The recommended changes would include not requiring a plaintiff to bring up his litigation history, removing language that encourages the plaintiff to “briefly” state the facts, replacing it with a provision asking for as much detail as possible, and eliminating the portion of the form that asks prisoners to state the legal grounds of their claim.

            There are enough hurdles to life in prison without having clear yet another one to get relief for a civil rights violation.  Unfortunately, prison libraries have drastically curtailed or eliminated legal research resources, and the authors of the study feel that this is unfair and should be changed also.

            Once again, we are available for such actions, as well as many other prisoner relief petitions, should you wish to pursue them. We encourage you to visit us at federallc@yahoo.com for further information.  Thank you.

 

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