First Step Act Update

FIRST STEP Act to Be Near Top of Legislative "To Do" List After Elections

by Derek Gilna

            As America struggles in the aftermath of recent acts of terror and senseless violence, the US Senate can make a strong statement after the divisive mid-term elections a week from Tuesday by passing the FIRST STEP Act. The House already has passed this bill, but to become law, the Senate must do the same.   The President has said that he supports and will sign the legislation, which would then take effect.

            As we have previously noted, the current attorney general (who opposes the bill) should be gone by the first of the year, and most Republican Senators, perhaps as many as 32, support the  bill in its current form. NO Democratic Senators are on record as opposing it, meaning it could have well over 75 "yes" votes. Surveys show over two-thirds of Americans support sentence relief.

            Although we have received many questions as to who would be affected by the legislation, we caution that the final language of the bill has yet to be determined, but broadly speaking, all but the most violent would immediately benefit. The bill exempts several categories of prisoners from earning more credits, including convicted murderers, terrorists and spies, as well as the undocumented..

            The bill would allocate $250 million over five years for the DOJ to develop risk assessment tools to figure out what inmates need, and to create programs tailored to those needs. The new system would run on incentives, offering inmates extra credits against their release dates if they participate in the programs and have good conduct. The bill would also increase the maximum amount of credits an inmate could earn per year behind bars, from 47 days to 54 days, and applies that change RETROACTIVELY, meaning some prisoners would be eligible for early release immediately.

            As we have reported here, the federal HW system, not to mention the broader prison system, is severely mismanaged and underperforming considering the amount of funding it receives.   Look for many private and religious entities to take over the DOJ's job in providing quality education and meaningful job training and reentry programs.

            In the circuits,  we apologize for not giving the cite on the 9th Circuit stash-house case, which was US v. Sellers, 16-50061, (9th Cir. 10-15-18). Also in the 9th Circuit, the Berkeley, California school of law has filed a federal lawsuit against the DOJ, alleging that "Federal monitoring of email message makes it excessively difficult for inmates to communicate confidentially with their lawyers." Needless to say, I have a personal interest in this matter.

            Finally, we continue to look forward to discussing with you any potential relief that might be obtained under Johnson and Dimaya, or to assert inadequate representation of counsel in a 2255 petition for those whose direct appeal was recently denied. There is no charge for this review.

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd. #173

Buffalo Grove, IL   60089

federallc@yahoo.com

(847) 878-0160

Dimaya Circuit Split:

Supreme Court ACCA Cases Should Help Resolve Dimaya Circuit Split: More News

by Derek Gilna

            The U.S. Supreme Court (SC) will consider the case of Haight v. US, out of the DC circuit, which asks whether a criminal offense with a reckless "mens rea" qualifies as a "violent felony" under the ACCA. "Mens rea" refers to what is commonly referred to as a "guilty mind," thought as a necessity for one to be found guilty of a crime, but watered-down by the US  Sentencing Commission and Congress, vastly increasing convictions.

            This case arrives at the perfect time, since the 11th Circuit narrowed Dimaya relief in the recent Ovalles case, and the Sessions Justice Department has made similar arguments in the 2nd and 4th Circuits. Haight is an opportunity for the SC to force the circuits to get in line with its obvious distaste for expansive ACCA sentencing.

            Interestingly, the arrival of two "originalist" conservatives to the SC, Gorsuch and Kavanaugh,  (referring to those who feel that the US Constitution does not bend with the times but must be given its original meaning) actually works in defendants' favor in these ACCA cases, and it hoped that that will be the case here. In fact, it is the more conservative groups, such as the Justice Action Network, who are busy rounding up votes for First Step. That group is no fan of soon-to-be gone Sessions, and his embattled deputy, Rod Rosenstein. Remember, nothing will be voted on until AFTER the November election.

            The First Circuit, in rejecting an application for leave to filed a second 2255 under Johnson and Dimaya, highlighted the importance of the facts of the individual case in getting relief under those cases, narrowing its holding to distinguish the case of Elaine Brown from most other situations because of the extreme circumstances (accumulation of large quantities of explosives combined with a credible threat to detonate them), as well as noting that  Johnson was never intended to apply to "pending" charges, rather than older ones. The court said that there was no question that Brown was engaged in a crime of extreme violence. Johnson and Dimaya refer to PRIOR convictions, not current ones the court said.   If anything, this court solidified Johnson and Dimaya's application.  Brown v US, 16-1293, (1st Cir. 10-12-18).

            Finally, the Ninth Circuit has held in a reverse sting case that "a defendant need not proffer  evidence that similarly-situated individuals of a different race were not investigated or arrested to receive discovery on a selective enforcement claim like the defendant's." The court permitted discovery on this limited issue, and remanded the case to the district court for the discovery to take place.

            We look forward to discussing with you any potential relief that might be obtained under Johnson and Dimaya, or to assert inadequate representation of counsel in a 2255 petition for those whose direct appeal was recently denied. Also, not a bad idea to pass along your outside contact's email address, so that they might receive the same news that you do.

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd. #173

Buffalo Grove, IL   60089

dgilna1948@yahoo.com

(847) 878-0160