Supreme Court Hears Two Cases That would Have Positive Impact on Sentence Reform

 

Supreme Court Deliberations Should Positively Impact Criminal Justice; Congress Proposes Clemency Reform; DOJ Repeats Past Mistakes with OMICRON, New Covid Studies; Updates

 

by Derek Gilna

 

            As Christmas and New Years approach, there are many positive developments in federal criminal justice. There is no question that some cases pending in the US Supreme Court will have a good impact on prisoners' criminal justice options.   In addition to Jarvis, the Court is considering United States v. Taylor, argued this past Tuesday,  a case about how to define a violent crime. After 90 minutes of debate, the justices clearly  struggled to solve a statutory puzzle involving attempted robbery, threats of violence, and two federal laws with expansive language. In the end, the case may turn on a question that seems more philosophical than legal: Is it possible for a would-be criminal to attempt to threaten physical force but stop short of making any actual threat?

            One of the methods to reduce sentences is a 2255 habeas filing, which focuses on the issue of inadequate representation of counsel in federal court. However, Shinn v. Ramirez and Jones, argued on Wednesday, may focus needed attention on the problem. These are two death penalty cases that will determine whether prisoners may develop new evidence to support claims that their lawyers were constitutionally ineffective at trial. The argument was notable because a surprising group of justices appeared to struggle with the legal issue at the heart of the case – repeatedly calling it “rather odd,” “very odd,” “close,” and “really a tough case.”

             In particular, a trio of conservatives – Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh – seemed sympathetic to both sides and at times wondered aloud how they should even approach deciding the issue. As Roberts put it, what should the court do in a situation where “the plain language” of a statute “seems to require one result,” while “the plainly logical meaning of a subsequent precedent” seems to require the opposite? Although this matter involves a state criminal case, it will be interested to see if the court's opinion is useful to future litigants on the federal level who wish to file 2255 petitions.

            Congressional sentence-reform supporters  filed the  "FIX Clemency Act," introduced Friday by Rep. Ayanna Pressley, a Democrat from Massachusetts,  which calls for a nine-person board that would be responsible for reviewing petitions for clemency and issuing recommendations directly to the president. The recommendations would also be made public in an annual report to Congress. At least one member of the panel would be someone who was previously incarcerated.

            "Clemency works, but the current system is broken and denies thousands of people the chance of redemption and justice," Pressley said. "It is long overdue that the president uses his clemency authority to address the generations of systemic injustices that have created the mass incarceration crisis," she said, arguing that her bill was a "critical" part of that effort. Continue to consider a clemency filing if you are eligible to do so.

            The Congressional has officially spilled into "overtime," as it extends sessions into this week in an attempt to pass "Build Back Better," Biden's budget-busting proposal, which appears destined to fail. Although the President has threatened to extend the session to Christmas, it won't be happening.   Thus, all pending sentence reform legislation will be pushed into 2022, where these important bills should receive the time and attention that they deserves.

            While certain states continue to impose a mask mandate, and federal employees have been ordered to vaccinate or risk termination, the guards union continues to resist. It is clear that Biden's DOJ will not enforce that mandate in federal prison, other than to use it as a way to give shots to people to block possible CARES eligibility. Ironically, as long as guards continue to resist mask usage and vaccination, CARES releases will continue. OMICRON, DELTA, and all other forms of COVID continue to make themselves at home in federal prison, and DOJ appears powerless to stop it.

            In fairness to DOJ, federal "experts" are politically unwilling to state certain obvious scientific truths, which is that obese, diabetic, and high blood pressure sufferers  are particularly vulnerable. “The bottom line is, ‘Oh my god, indeed, the virus can infect fat cells directly,’” said Dr. Philipp Scherer, a scientist who studies fat cells at UT Southwestern Medical Center in Dallas, who was not involved in the research.

“Whatever happens in fat doesn’t stay in fat,” he added. “It affects the neighboring tissues as well.”

            The study’s senior authors, Dr. Tracey McLaughlin and Dr. Catherine Blish of the Stanford University School of Medicine, suggested the evidence could point to new Covid treatments that target body fat.  “Maybe that’s the Achilles’ heel that the virus utilizes to evade our protective immune responses — by hiding in this place,” Dr. Vishwa Deep Dixit, a professor of comparative medicine and immunology at Yale School of Medicine, said.

            “This could well be contributing to severe disease,” Dr. Blish said. “We’re seeing the same inflammatory cytokines that I see in the blood of the really sick patients being produced in response to infection of those tissues." Body fat used to be thought of as inert, a form of storage. But scientists now know that the tissue is biologically active, producing hormones and immune-system proteins that act on other cells, promoting a state of nagging low-grade inflammation even when there is no infection.

Inflammation “The more fat mass, and in particular visceral fat mass, the worse your inflammatory response,” Dr. McLaughlin said, referring to the abdominal fat that surrounds internal organs. Fat tissue is composed mostly of fat cells, or adipocytes. It also contains pre-adipocytes, which mature into fat cells, and a variety of immune cells, including a type called adipose tissue macrophages.

            A man whose ideal weight is 170 pounds but who weighs 250 pounds is carrying a substantial amount of fat in which the virus may “hang out,” replicate and trigger a destructive immune system response, said Dr. David Kass, a professor of cardiology at Johns Hopkins. The data also suggest that Covid vaccines and treatments may need to take into account the patient’s weight and fat stores. “This paper is another wake-up call for the medical profession and public health to look more deeply into the issues of overweight and obese individuals, and the treatments and vaccines we’re giving them,” said Barry Popkin, a professor of nutrition at University of North Carolina at Chapel Hill, who has studied the heightened risk that Covid poses to those with obesity.  www.bioxiv.org, 10-24-21.

            Meanwhile, most prisons continue in a healthcare crisis, although DOJ has taken pains to conceal this fact from both prisoners, the public, and the media.  Continue to bombard your elected representatives as to the seriousness of the situation, since DOJ's response has been: "Nothing to see here."

            FMC Rochester, from multiple accounts, has multiple staff and prisoners infected. From Waseca, "they just told us, they have 137 but that does not include the 14 that left this unit today...there are still people that cant smell or taste..." Hazelton has multiple unconfirmed deaths. "Alderson now has three (of eight) complete units on full lockdown due to positive cases of COVID.... three units outside of the three (two incoming and one outgoing) quarantine units." Ashland also has a serious outbreak. An unconfirmed report from FCI medium facility Schuylkill, 447 infected inmate, with 1100 completed tests.

Another huge risk for chronically-ill prisoners, or those with undiagnosed wait times, is that Covid has given cover to prison health-car officials to delay diagnosis and outside trips.   From another managed-care environment, the United Kingdom, we have proof that this delay does not end well for patients. "The impact of fewer drugs and longer waits for care in Britain is reflected in the health outcomes data for cancer patients. In England, the overall cancer mortality rate in 2018 was 266 per 100,000 people – 68% higher than the U.S. mortality rate of 158.3 per 100,000 people. These are the well-known results of centrally planned health care systems. When the government runs – and pays for – just about everything, bureaucrats and algorithms decide who deserves treatment. And some patients don’t make the cut." Sally C. Pipes,  president, CEO and Thomas W. Smith Fellow in health care policy at the Pacific Research Institute.www.buffalonews.com.             In the circuits,  in US v. Abdul-Ali,19-60694, (5th Cir.  December 10, 2021) the Fifth Circuit affirmed the district court's grant of defendant's motion to reduce his sentence under the First Step Act of 2018 from life to 40 years imprisonment. The court concluded that the district court did not abuse its discretion in reducing defendant's sentence where the district court noted that a significant prison term was still warranted based on his previous recidivism and the violence that accompanied his past crimes. The court stated that it has never held that courts must consider the 18 U.S.C. 3553(a) sentencing factors when assessing a sentence reduction under the Act. Finally, the court rejected defendant's argument that he was entitled to a hearing regarding his post-sentence behavior. Finally, the district court did not abuse its discretion in declining to reduce defendant's sentences for Counts One and Three, because the statutory penalties for those counts are not covered under the Act.    Be not afraid and let not your heart be troubled.   Derek Gilna, Director, JD, (De Paul, 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana) dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish) federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."