Biden AWOL on Sentence Reform, But Clemency Appointment is a Step Forward

 

Biden Appoints New Pardon Attorney;  COVID Again Hits Federal Prison System; Opponents of Sentence Reform Fight Back, but Durbin and Grassley Stand Firm; Medium Pattern Scorers Have Legal Alternatives;  

by Derek Gilna 

            President Biden has appointed a new federal pardon attorney, who will oversee all pending Pardon and Clemency petitions. She is Elizabeth (Liz) G. Oyer, who before her Justice Department appointment,  according to DOJ,   served as "Senior Litigation Counsel to the Office of the Federal Public Defender for Maryland, where she represented indigent defendants at all stages of proceedings in federal district court [and] handled a wide variety of criminal cases, ranging from complex fraud to drug and gun offenses, as well as violent crimes."  This is an important development and may mean that we may start seeing some action shortly on the 18,000 pending petitions.  

            Currently pending in Congress is the FIX Clemency Act, which seeks 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.

            Unfortunately, no sooner has OMICRON passed through the federal system than the BA.2 variant has now caused the transfer of several prisons back into Red status, which means masks, and more lockdowns. Coleman, Marianna, Carswell,   FMC Rochester, and Cumberland  have reported  numbers of active cases (From Cumberland: " FCI Cumberland had 71+ Covid-19 positive inmates and staff (6 staff) when I left a week ago on a transfer. Most all units were on lockdown.") The virus is present everywhere, but DOJ has had two years to perfect its COVID concealment skills, so true numbers will probably never be reported.    Unfortunately, much as the non-partisan Marshall Project stopped reported DOJ COVID numbers because of clear inaccuracies several months ago, the UCLA COVID Reporting Project, which has tracked correctional response to the virus for the past two years, also gave DOJ a failing grade,  for Overall Response, F, Data Quality, F, Reporting for Incarcerated People, F, and Reporting for Staff, F. https://uclacovidbehindbars.org/blog/march22scorecard, 4-18-22.

            Opponents of pending sentence reform bills are fighting back, much as they did prior to the passage of First Step (FSA) , but their recent outbursts are more a  sign of weakness than strength (same thing happened prior to passage of FSA). All of the pending bills have strong bipartisan support, and most  appear to have the votes to pass but must be called for a vote.    Biden and some Democrats are nervous about calling for the vote prior to the election, but after the election, chances of passage increase.  Remember that FSA also passed in 2018 AFTER the Congressional elections.

            The First Step Implementation Act, sponsored by Sen. Chuck Grassley, R-Iowa, seeks to correct an oversight in the original FSA. In passing First Step  in 2018, Congress affirmed that some mandatory minimums for drug offenses and “stacking” of charges were unjust and resulted in sentences that do not advance public safety. The Safer Detention Act would provide ill and elderly people in prison a vital path to release or home confinement, and would cover those convicted prior to 1987.  The Prohibiting Punishment for Acquitted Conduct Act would prohibit judges from considering information regarding acquitted acts during sentencing — an important protection against government overreach. 

            I have received dozens of questions similar to this one: " the question that every one in here would like to know is can the people with a high recidivism (get)  F.S.A time credit and get the 10 days off for every 30 days of programming...case managers here told us that people with a  high recidivism can't- they would have to go down to a low but I never read anything saying that..." Precisely, because there is NOTHING in FSA that prohibits you from getting those credits.   This also could be challenged in court, but I would definitely exhaust remedies on this before you make the attempt, and you should be within two years of release OR near 50% of time served (for CARES consideration) if you are contemplating this action.