Biden Feels the Heat: Reformers Demand Immediate Action; BOP redefines "Violence," to Reduce CARES releases.
by Derek Gilna
In a video conference with Biden officials the past week, criminal justice advocates expressed their dissatisfaction with the pace of reform, with at least one calling it "unacceptable," since Democrats now control all levers of Executive, Congressional, and bureaucratic power. All the sweeping legislative initiatives, including the EQUAL Act, which would finally eliminate the cocaine crack disparity, are currently still in committees, awaiting a signal from the White House to bring them up for a vote.
Congress may not wait much longer for that signal. Senators recently verbally roughed-up the federal prison chief in an oversight hearing, and that pressure directly led to the apparent loosening of restrictions on CARES releases. However, much as it did on First Step reforms, DOJ immediately made internal changes to tighten rather than loosen release criteria, only permitting the 25% threshold for CARES release consideration to be offered to those 18 months from the door. (This of course would not affect Compassionate Release Petitions, which permit judicial action on prison releases based upon prisoner and family health criteria, regardless of how much time you have served.)
There is also a new bill that would repeal the Prison Litigation Reform Act. Repealing the PLRA is part of Congresswoman Ayanna Pressley’s criminal justice agenda and is contained in her People’s Justice Act. Access to courts is the key to other rights; without access, incarcerated people have no ability to shine a light on overcrowding, lack of medical care, rape, violence, or arbitrary abuses of power by correctional officials. This bill has attracted many co-sponsors, who know that it is a much-needed reform.
DOJ's broad definition of what is a "violent" crime has also come under scrutiny.
A prime example of this is 924Ca or Hobbs Act conspiracy or robbery cases, which have been deemed non-violent in most judicial circuits. This is a prime candidate for judicial review, and given the current composition of the Supreme Court, and it's stated hostility to administrative agencies overstepping their bounds in issuing rules and regulations contrary to legislative intent.
Those individuals with immigration issues won a rare victory in the Supreme Court this past week, in Niz-Chavez v. Garland, 19-863, which ruled that nonpermanent resident aliens ordered removed from the U.S. may obtain discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years, 8 U.S.C. 1229b(b)(1). The “stop-time rule” included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provides that the period of continuous presence “shall be deemed to end . . . when the alien is served a notice to appear” in removal proceedings.
A notice
that omits any required information does not trigger the stop-time rule. Thus,
if the notice is defective, the 10 years, which could permit you to remain in
the country after release, could be
considered to still run, even if you are in prison.
COVID-19 containment
continues to vex prison officials, with former hotspots
Unfortunately,
conditions in the prisons are such that individuals who would not even consider
a flu shot on the outside have felt compelled to get a COVID shot, especially
since only 50% of the guards have gotten vaccinated, an unconscionable low
number. There has been some rare cases of side-effects to Moderna, including a
few cases of Bell's Palsy (face droop.)
In U.S. v. Hammond, 19-2357, (7th Cir. 4-26-21), the court affirmed, rejecting defendant's search suppression issues, but ruled that the district court erred in instructing the jury regarding the felon-in-possession charge under the Supreme Court’s “Rehaif” decision, and that Hobbs Act robbery is not a crime of violence under 18 U.S.C. 924(c) or under the Sentencing Guidelines, so his section 924(c) conviction must be overturned, and his sentence vacated
In US v
Green, 19-4703, (4th Cir. April 29, 2021) Green was sentenced as a career
offender under U.S.S.G. 4B1.1, after the district court found that Hobbs Act
robbery, 18 U.S.C. 1951, to which Green pled guilty, qualified as a crime of
violence under that provision. Five federal courts of appeals have concluded
that Hobbs Act robbery does not qualify as a crime of violence. The designation
increased his sentencing range from 77-96 months to 151-188 months’
imprisonment.
The Fourth Circuit vacated Green’s sentence
and remanded for resentencing. A robbery offense that, like Hobbs Act robbery,
may be committed through force or threats of force against property as well as
against persons is not a categorical match with any portion of the Guidelines
definition of “crime of violence” set out in section 4B1.2(a). Nor is Hobbs Act
robbery a categorical match for “extortion” as enumerated under section
4B1.2(a)(2).
In Us v Collington, 19-6721, (4th Cir.
One criteria was the applicable statutory maximum sentence. The court explained that, if sentenced today, defendant would be subject to the sentencing ranges set forth in 21 U.S.C. 841(b)(1)(C); that range sets a maximum mandatory term of 20 years' imprisonment. The district court erred by not resentencing defendant to, at most, 20 years' imprisonment and held that when a court exercises discretion to reduce a sentence, the imposition of the reduced sentence must be procedurally and substantively reasonable. Remanded, with instructions.
Be not afraid, and let not your heart be troubled.
113 McHenry, #173,
