Ninth Circuit Lopez Decision Opens the Door to Additional Sentence Relief; Legislative Updates
by Derek Gilna
The 9th
Circuit decision in US v. Lopez, No. 19-50305 (9th Cir.
"In
the First Step Act of 2018, Congress amended § 3553(f)(1), which focuses only
on a criminal defendant’s prior criminal history as determined under the United
States Sentencing Guidelines. As amended, § 3553(f)(1) requires a defendant to
prove that he or she “does not have” the following: “(A) more than 4 criminal
history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point
violent offense," the court continued.
"Applying the tools of statutory construction—including § 3553(f)(1)’s plain meaning, the Senate’s own legislative drafting manual, § 3553(f)(1)’s structure as a conjunctive negative proof, and the canon of consistent usage—the panel held that § 3553(f)(1)’s “and” is unambiguously conjunctive...the majority held...that a defendant’s criminal history must satisfy all three."
Congress's recent rough handling of the federal prison director at an oversight hearing and recent public statements shows that it realizes that the federal prison system is on the verge of a breakdown, and its systemic failures to follow statute and proper procedures can no longer be ignored. Although many of these failures, such as inadequate medical care, have been "baked" into the system for years, COVID-19 flubs, compounded by obvious cover-ups, have made it clear how bad the situation truly is.
Part of the
problem is that good, qualified people don't want to work for the system.
According to the AP, "Nearly one-third of federal correctional officer
jobs in the
Of course, along with the tens of thousands of federal prisoners, almost 7,000 employees were sickened with COVID-19. Officers were sent to hospitals to guard inmates being treated for the virus. Four staff members and 235 inmates died.
Prison programming,
which can lead to sentence reductions, has also suffered. .
“You can’t do programming, you can’t have safety, you can’t have a lot of things that make prisons operate without proper staffing,” said Kevin Ring, the president of the advocacy group Families Against Mandatory Minimums.
Many are rightfully asking when the various prison reform bills currently in House and Senate Committee will come up for a vote and perhaps be signed into law. The answer is complicated. Congress works an average of three days a week, takes multiple recesses, and the amount of time for debate and votes is limited. Congressional leadership has its priorities, and prison reform is clearly not at the top of the list. Nonetheless, after the wrangling over "Infrastructure" legislation ends, I expect the President to move ahead on these bills. Clemency reform continues to be a clear priority of Biden's staff. Remember that two months prior to the passage of First Step, all of the "experts" (but one, lol) said that it would not even come up for a vote. Once President Trump said he wanted it passed, it became law in a few short weeks.
Congress continues to be frustrated with the slow pace of CARES releases and warden approvals of compassionate release petitions. Federal prison officials confirm that wardens approved only 36 of 30,969 requests for compassionate release between March 2020 and April 2021, as the coronavirus took its toll on prisoners. As the situation worsened, the system's response was to become even more opaque, by removing cases and deaths from its reports in recent months. As noted by the Marshall Project, "As a result, we cannot accurately determine new cases or deaths in federal prisons, which have had more people infected than any other system."
There are many new cases and it appears that the very limited number of vaccinations might also have been botched. I have been advised that several prisons failed to properly store the doses, possibly compromising their effectiveness. There was often little regard to who should delay getting vaccinated, due to incomplete screening for possible serious side effects. It is clear in that dozens of instances prisons gave the vaccine to individuals who were non-symptomatic COVID-positive, causing severe side-effects. Several others tested COVID-positive AFTER being vaccinated, which could indicate a spoiled vaccine. Seagoville is one facility where the vaccine might have been mishandled, leading to severe side-effects which are not addressed by medical staff. CDC Chicago and Marianna have new confirmed COVID cases.
According
to the US Sentencing Commission, "3,705
offenders were granted a sentence reduction under Section 404; 65%
were assigned to the highest Criminal History Category (VI); 56% were Career
Offenders; 45% received a weapon-related sentencing enhancement; Offenders
received an average decrease of 6 years in their sentence;
The original average sentence was 274 months; The new average sentence was 202 months; 87% of granted motions were made by the defendant, 9% by the attorney for the government, and 4% by the court." What are you waiting for?
A bit of humor from Louisiana Senator John Kennedy: "This is why aliens won't talk to us."
Be not afraid, and let not your heart be troubled.
Google Blog: "Derek Gilna's Criminal Justice Musings and Reflections."
