BOP Hurtles Towards Its Day of Reckoning for COVID Failures; Justice and Clemency Reform On Horizon

 "Status Quo" of Justice Reform, Blown Up by Trump with FSA, Will Never Return, as Reform Heats Up; Legislative, Supreme Court Updates

 

by Derek Gilna

 

            A common concern of many of you is whether the new President will follow through on his pledge to continue the reform of the federal justice system. The answer is an unequivocal "Yes," but not for the reasons you might think.  The  influence of corporate America, who has endorsed mass incarceration for decades, has lost its veto power on reform. If mass incarceration destroyed millions of disadvantaged families and people of color,  enriching corporate America in the process, that was just a price of doing business.. We'll make that up by outsourcing to China, at a cheaper cost, they said, and our sons and daughters will have nice jobs in NY, Chicago, Washington, D.C., and in DOJ, where they can perpetuate the "status quo."

            The Criminal Justice system, and the federal government in general, has a voracious appetite for people, and money. To "feed the beast," keep prisoner numbers high, and add some "diversity" to the prison population, they can and do selectively target and crush non-politically-connected white collar defendants. Enter Donald Trump (and senior adviser Jared Kushner,  son of a jailed property developer).

            Prior to Trump, the Mitch McConnell-like corporate politicians had blocked or "slow-walked" meaningful justice reform for years. Trump's First Step Act forever changed the paradigm for sentence reform, and is being used every day  to reduce sentences by judges not afraid to revisit prior decisions which made some of them squirm in discomfort.

            This is the new normal, and Biden, no innovator, will continue the new trend.

It is unlikely that the federal prison system will be untouched as the reforms move ahead.  As the country recovers from its COVID-19 nightmare, and Biden's advisers settle in, there will be a day of reckoning for those responsible for the hundreds of deaths, and tens of thousands of imprisoned individuals whose health will never be the same due to gross mismanagement, and yes-a massive cover-up.

            For those of you with prior health problems, or something that doesn't feel quite "right," I would not waste any time considering a CR.   Many underlying health problems are being ignored by prison health officials, but as "Michelle" recently found out, a well-timed CR petition can bring about your release. Others, like "Kendall," won release based upon serious health problems for family members at home.

            With reform skeptics like McConnell effectively sidelined, the most prominent voices,  Republican Charles Grassley and his Democratic counterpart, Dick Durbin are pushing the "COVID-19 Safer Detention Act," which I expect to pass this year.  It would: clarify that the percentage of time served required for the Elderly Home Detention Pilot Program should be calculated based on an inmate’s sentence, including reductions for good time credits (H.R. 4018, which passed the House by voice vote last Congress); expand the eligibility criteria for the Elderly Home Detention Pilot Program to include nonviolent offenders who have served at least 50 percent of their term of imprisonment; subject elderly home detention eligibility decisions to judicial review (based on the First Step Act’s compassionate release provision).

            Also, for those of you considering clemency, I would wait no longer.   A bi-partisan push for eliminating 13,000 clemencies and setting up a new process for review is well under way, but there is no timetable for when this will come to fruition.

            The Supreme Court has two important cases on its docket, including Bates v. United States, No. 20-535, which asks the Court to decide whether cocaine base defendants getting resentenced under the First Step Act should get resentenced under modern sentencing guidelines, or under repealed, invalidated, or otherwise discarded sentencing rules. Terry v. United States, No. 20-5904, asks whether certain low-level cocaine base offenders are eligible for  resentencing. 

            In the circuits, in US v Armstrong, 4-cr-634, (USDC of SC, Florence Div.), the court granted a FSA reduction in a non-violent drug case where he had 18 ounces of crack, and minor state priors. In US v. Wheat, 19-4172, (6th Cir. 2-12-21), the court reversed a conspiracy drug conviction, finding a "buy-sell" relationship, and remanded for resentencing. In US v. Nebinger, 19-1504, (7th Cir. 2-11-21), that although his Rehaif claim was waived, the recent Ill. SC decision that the Illinois residential burglary offense is NOT violent opened the door to a resentencing.

            Patience is required for those who filed paper 1040 returns, as the IRS struggles with its backlog. Fear not, and let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna, JD, MARJ, Director

113 Mc Henry Rd.   #173, Buffalo Grove, ILL 60089 (and Indiana)

dgilna1948@yahoo.com, blogging at  Derek Gilna's Criminal Justice Blog