TAYLOR Supreme Court Decision Upends Many Attempted Hobbs Act Robbery Convictions, and Perhaps also State Priors; Medical Professionals Also Prevail at High Court

 

BRUEN Decision Also Casts Doubt on Felon Firearm Possession Convictions; Court's Trend Now To Limit Federal Intrusions on States' Rights; Sentencing Commission Quorum Means More Prisoner-Friendly Rules; Waiting List Starts for Our New Subscription List; Appellate Updates 

by Derek Gilna, Director of Research 

            In an important and decisive 7-2  decision in  United States v. Taylor, 596 U.S. ___ (2022), the Supreme Court of the United States (SCOTUS) swept away appellate circuit conflicts, holding that "Attempted Hobbs Act (HA) robbery does not qualify as a 'crime of violence' for purposes of enhanced sentencing under 18 U.S.C. 924(c)(3)(A) because no element of the offense requires proof that the defendant used, attempted to use, or threatened to use force."

            The court also added, "In § 924(c)(3)(A), Congress did not condition long prison terms on an abstract judicial inquiry into whether and to what degree this or that crime poses a risk to community peace and safety.  Nor did it mandate an empirical inquiry into how crimes are usually committed, let alone impose a burden on the defendant to present proof about the government’s own prosecutorial habits."

             The holding does NOT affect HA offenses that are not  attempts. My estimate is that this change will positively impact a minimum of 5000 individuals in the federal system., and also believe that a case can be made to attack state priors.  Examine your cases to ascertain if you have Taylor facts.

            In Ruan v. US, SCOTUS also struck a blow against DOJ overreach, which had swept up well-intentioned medical professionals and overcharged them.    Congratulations to them. The 9-0 decision is a harsh rebuke for the US Attorney and his minions.

            The Bruen decision raises many interesting questions as to whether federal felon-in-possession offenses (and certainly enhancements) are now subject to attack.   Bruen primarily dealt with certain gun rights in NY states, but the holding continued this key phrase: "we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation." More later on this.

            Of course, the Dobbs abortion decision unleashed a lot of emotion on the topic, but I see it as part of SCOTUS broader attempt to turn some of these hot issues back over to the states, and roll back the federal government's heavy hand, ever so slowly.   After all, a federal government who can't get its prison guards to vaccinate or wear masks, keep its vulnerable residents safe, properly apply Congressionally-mandated sentence credits,  or even keep soap, cleaning material, and health hygiene supplies in stock should not be blindly trusted with more important issues like criminal justice.

            Another positive development is that the US Sentencing Commission is now able to function again, and I fully expect it to produce some enlightened guidance on the subjects of compassionate release (and other topics like 924c)  in the near future.

            In concerning news, the systemic decay of the federal prison system continues, awaiting a change to leadership that will make the hard choices necessary to bring federal corrections out of the 19th to the 21st century. FCI Big Spring has documented that most of the plumbing and mechanical systems are substandard, and dangerous, with black mold. "We are here at FPC Bryan with the EXACT same situation as what is going on at Ashland. Quarantine for unspecified rash and NO STAFF.. We have ONE case manager in our unit where there used to be 2 and ONE unit manager for BOTH the units housed in this building along with a rotating counselors who.. Rarely is any of unit team available! NO dental sick call for months.. Being told to go to sick call and then we have to bug them to try to even get antibiotics..." "I want you to know that it is bad here at Oakdale II. we have a problem with toilet paper; we are out for weeks; no staff is here now; we are back in red for covid-19; the food is going from bad to worst and has for commissary they are out of everything even the simples thing like fish, coffee, mackerel- nothing; we ask questions and get no answers." Petersburg is in code Red with over 22 cases, according to multiple sources, as is Yazoo city.

            More disturbing research is leaking out that cast doubt on the effectiveness of COVID vaccines in fighting the newest variants, and more reports of serious side-effects for those who have taken vaccines and boosters. Individuals who received two doses of the Pfizer and Moderna vaccine but had no previous infection, were found with negative immunity against both BA.1 and BA.2 Omicron subvariants, indicating an increased risk of contracting COVID-19 than an average person. Clearly, any case law that says taking a vaccine casts doubt on a compassionate release petition is now wrong on the facts.

            "The United States’ newly dominant Omicron subvariants, BA.4 and BA.5, are evading vaccine and infection-acquired immunity, scientists have found. The subvariants recently caused a fresh wave of infections in South Africa, and are pushing the U.K. to the brink of another wave of the disease.BA.5 recently became the dominant subvariant in the U.S., accounting for almost a quarter of COVID infections last week, while BA.4 made up just over 11% of new cases, CDC data showed. In a letter to the editor of the New England Journal of Medicine on Wednesday, experts from Harvard Medical School’s Beth Israel Deaconess Medical Center (BIDMC) outlined their findings from a recent analysis of 54 individuals’ antibody protection against various Omicron subvariants. subvariants. Of the participants in their study, 27 had been vaccinated and boosted with the Pfizer-BioNTech vaccine, and 27 had been infected with either the BA.1 or BA.2 Omicron subvariant a median 29 days earlier. All but one of the participants who had recently been infected with the virus had also been vaccinated." https://www.bloomberg.com/news/articles/2022-05-30/s-africa-had-fifth-covid-wave-despite-97-antibody- protection. The original study is at: https://www.nejm.org/doi/full/10.1056/NEJMc2206576.

We are in the process of creating a specialized site for individuals needing more specialized research assistance, which will not replace but supplement the current newsletter, available on an annual subscription basis at modest cost, for both you and your families. Stay tuned! Be not afraid, and let not your heart be troubled.  Derek Gilna, Director of Research, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, NEW ADDRESS: 133 W. Market, #171, Indianapolis, IN 46204; dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, firststeprelief@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. (This Newsletter is for Information Only and Does Not Constitute Legal Advice. The Director of Research is a retired  attorney not currently licensed to practice in any jurisdiction.) Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."

EQUAL Act Negotiations Continue, as Congress Poised to Act with or Without the White House's Participation

 

Happy Father's Day and Juneteenth; EQUAL Act Negotiations Continue; Keys to Sentence Relief; Prison Conditions Deteriorate, While White House Dithers, Congress Takes Action; "Right To Trial" Act Introduced; COVID Update 

by Derek Gilna, Director of Research 

            With the holidays of Father's Day and Juneteenth occurring this week,  our attention is focused on providing the research necessary to ensure you celebrate these holidays next year at your home. Although it may be hard to discern from your current perspective, there are many more avenues to relief than four short years ago, and the odds of sentence relief will only increase as the Sentencing Commission restarts its work.

            The federal criminal justice system does an efficient job of arresting, prosecuting, and imprisoning tens of thousands people every year. Despite that fact, crime continues, and rises and falls without any apparent relationship to the number of arrests. The reason is clear; it does not exist to reduce or even deter crime, but to highlight federal dominance and power. Federal criminal justice agencies are overly political, haughty, and disrespectful of basic human rights, and actually despise each other.  Until the late 60's the federal prison population was 50,000, for actual federal crimes. .

            The first key to relief is the First Step Act (FSA), which empowers federal judges to take a "second look" in many more instances than the "second successive" 2255 filing (which is still useful in some factual circumstances.). Second is the 2255 petition, alleging inadequate representation of counsel (currently at epidemic levels) which must be filed within a year of the end of your direct appeal or petition for cert. After that is the often-misused 2241, which can be used to enforce your sentence credits, wrongfully withheld by the prisons to people with higher security levels. We get a lot of inquiries about people's PATTERN classifications. (Note: it is of MINIMAL importance to sentence relief, although important for prison assignments and transfers.)

            Compassionate releases continue to be granted. Thanks to you and your family's efforts, Congress is well aware of the prison system's dysfunction. Serious EQUAL Act negotiations are continuing. Two key congressmen made waves in the marijuana community on Thursday by disclosing that there are high-level talks underway about putting together a wide-ranging package of incremental marijuana proposals that House and Senate lawmakers believe could be enacted into law this year. 

            And, in a touch of irony, there is renewed focus on the deplorable conditions of confinement in your prisons, thanks to focus on the hot light of publicity on the health plight of pre-trial January 6, 2021 detainees in various federal facilities, consistent with what you deal with on a daily basis. A Jan. 6 prisoner who was released by a federal judge after being denied cancer treatment for eight months is now “in dire straights,” according to his girlfriend. On March 10, 2021, Chris Worrell was arrested and charged with alleged offenses related to his presence at the U.S. Capitol on Jan. 6, 2021. According to his attorney, " Mr. Worrell, of course, received what could be argued as horrendous medical care while at the jail, and there were numerous attempts to thwart that medical care or to thwart the physicians of Mr. Worrell in regards to what treatment was needed.” When  he was released from prison, he hadn’t had any medications for eight months. At that point, he had gone from stage one cancer to stage three. Sound familiar? https://www.theepochtimes.com/jan-6-prisoner-who-was-denied-cancer-treatment-now-in-dire- straits_4502438.html?est=s8YJ1Tj5VDKsaycrB8jJWXOa6xjFQKd3HYQV6OqTFkasFE7fq1HNYmf5RIZ3d%2Bc7.

            In this environment of heightened scrutiny comes some new Congressional action. U.S. Rep. Victoria Spartz (IN-05) introduced the bipartisan ‘Right to Trial Act’ with her colleagues, including  Reps. Hakeem Jeffries (NY-08), among others. This legislation would strengthen the constitutional right to trial and mitigate abuses of prosecutorial authority in our federal justice system.

            The key provisions amend the sentencing instructions of 3553 to order to (1) instruct judges to consider "the need to protect the constitutional right to a trial, including by prohibiting impairment of such a right in any case in which an increased sentence is threatened or imposed based on a defendant’s decision to go to trial and not accept a plea offer," and (2) authorize judges "to impose a sentence below a level established by statute as a minimum sentence so as to protect the constitutional right to trial." If this passes, this will be yet another weapon to reduce sentences.

            Congress is also aware that COVID has not yet left federal prisons. Congress is well aware that  when sanitation inspectors visit correctional kitchens, they find coolers smeared with blood and sinks without soap—and still give passing grades. Medical licensure boards permit suspended (or disgraced) doctors to practice (sometimes with ankle monitors) —but only on incarcerated people. Constitutional law does not fill the gap, treating standards like a threshold for toxic particulates or the requirements of a fire code more as a safe harbor than a floor. Disgraceful. Free-World Law Behind Bars

Yale Law Journal, Vol. 131, No. 1385, 2022, UCLA School of Law, Public Law Research Paper No. 22-18, 2022, by Aaron Littman, 3-1-22.

            Prisoners in multiple prisons are forced to drink unsafe drinking water, and often cannot buy bottled water or purified substitutes:    From Waseca (but it could be Gilmer, Aliceville, or a number of places): "The water here has impacted so many.  There are more and more showing up with kidney stones... the water here is why so MANY have renal, high b.p. and renal calculi due to the high concentrations of brine.  Fatigue, joint pain, flank pain, poor output, etc.  Horrid fatigue.  AND they still refuse to allow us to purchase cranberry juice (or bottled water)."

            More evidence that heavily-funded "rehabilitation" programs are not being provided, despite millions of dollars being spent (where?). From Coleman: " There has been an interesting setback in ...rehabilitation at Coleman low.  The administration of the Low has come up with the idea that the unit libraries ...needed to be purged.  The claim is that contraband (phones, dope, usual stuff like that) was being stored in some of the books.  The solution is top deprive us of access to common use books/magazines and the like.  Covid status as RED precludes access to the institutional library (and) means we have lost access to reading material other than whatever each of us has on hand."Otisville is also code Red, with complaints about black mold.

           There is also more COVID in Lexington Camp, and no adherence to CDC guidelines:   "They have not even mass tested and we are a three story dorm environment where positives came from all ranges.....high risk inmates are being put at risk even more." Especially since COVID has never gone away, and is far from under control, epidemiologists say, and the virus is sickening and sidelining people from work or social events as it continues to spread. “People can’t come to work. People are short-staffed,” said Jason Salemi, an associate professor of epidemiology at the University of South Florida College of Public Health. “Covid-19 is still inflicting enough damage.”

            The U.S. is logging some 100,000 known cases a day, and many more are being detected via at-home tests health departments don’t track. This is a stark difference from a year ago, when U.S. cases sank below 12,000 a day, the lowest level since the first surge, as vaccinations rose and many hoped the virus was in retreat. Wall Street Journal, Copyright (c)2022 Dow Jones & Company, Inc. All Rights Reserved. 6/17/2022.

            From Ashland camp: "our RDAP unit had 19 cases of a unknown rash that went to quarantine but then it ended up within a week of that 30 more was taking to quarantine and they tell us what it isn't but not what it is. We have barely any staff left and our camp is being ran by office and kitchen staff as guards. What is really going on? We have been out of paper towels for over a week and some feminine products. We are a stand alone camp that seem to be folding by poor management We have no Doctor but one on Video on occasion. No Dentist and a lot of inmates who need one."

Be not afraid, and let not your heart be troubled.  Derek Gilna, Director of Research, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, NEW ADDRESS: 133 W. Market, #171, Indianapolis, IN 46204; dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, firststeprelief@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. (This Newsletter is for Information Only and Does Not Constitute Legal Advice. The Director of Research is not an  attorney currently licensed to practice in any jurisdiction.) Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."   .

BOPl Prisons are Moving to Code Red, Not for COVID Outbreaks, but Staff Shortages; Not to Worry, Says the Director-We're On It!

 

SCOTUS Criminal Justice Roundup; New PATTERN Scoring In Use in Some Prisons; Should You File a 2255? Case Updates 

by Derek Gilna, Director of Research 

            The US Supreme Court' s (SCOTUS) end of June deadline for issuing opinions at the end of its term is fast approaching.  We eagerly await what we expect to be some positive, but in all likelihood, divided (non-unanimous) opinions. Included on that

list: U.S. v. Taylor, No. 20-1459, argued in December of 2021, which asks:   "Whether 18 U.S.C. § 924(c)(3)(A)’s definition of 'crime of violence' excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a;" Concepcion v. U.S., No. 20-1650. argued in January of 2022, asking, "Whether, when deciding if it should 'impose a reduced sentence' on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments;" and from March, 2022, Ruan v. U.S., No. 20-1410 , which asked, "Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he 'reasonably believed' or 'subjectively intended' that his prescriptions fall within that course of professional practice."

            COVID and isolated cases of Monkey Pox are in almost every prison (although numbers are hard to determine because DOJ policy is no longer testing), but that is not the reason that many prisons are going to Code Red, which means all education, programming, and most rec activities are discontinued. However, Unicor facilities still remain open. It is summer vacation season, and school is out, which mean officers get their vacation time, and facility operations are limited as a result of short staffing. Although COVID is still present, especially at Mariana, DOJ is not even attempting to keep an accurate count.

            "We, here in Victorville FCI-1, have gone back to, 'code red' and are required to wear masks everywhere.  Yard, chow hall, Unicor are still open...this is the worse medical and dental that I've ever seen.  I've been waiting for lab work (blood draw) for approx. six months.  Others can't get surgeries or transfers to facilities that would help them. " At Code-Red Aliceville (and other places) suspicious growths or lumps that could be pre-cancerous also go untested. "We are having an outbreak of Covid at FMC Atwood women's camp."  "Cactus campus update: locked down two units for Covid or variant. Code red. Medical CDC person insists on inmates wearing masking, but the staff will not wear them." "I'm here at Lexington camp and there's been 2 positive Covid tests this morning already. They haven't supplied us with soap in almost 2 months and they took away the bleach to spray down everything we touch almost 2 months ago as well... this is the 3rd outbreak." Multiple prisoners have contracted COVID multiple times, and of course, receive no treatment, and generally go to the SHU. "And still no physician at Alderson, scen of serious outbreaks and several deaths during the pandemic.

            The newest COVID variants continue to infect people across the country. "Omicron Covid-19 variants BA.4 and BA.5 are on the rise in the U.S., adding two more highly contagious versions of the virus to the mix that has fueled a springtime surge in cases. The closely related subvariants represented a combined 13% of U.S. cases for the week ended June 4, according to estimates the Centers for Disease Control and Prevention released on Tuesday. Evidence suggests the variants are yet-more contagious versions of Omicron, public-health experts said, that may be able to evade some of the immune protections people built up from infections triggered by another version of Omicron during the winter.

         " The spread of the subvariants could at least prolong the time it takes to emerge from the current wave fueled by other versions of Omicron, some health experts said.

'BA.4 and 5 may end up becoming the dominant Omicron lineages in the coming weeks or months,' said Nathan Grubaugh, an associate professor of epidemiology at Yale University’s School of Public Health. " https://www.wsj.com/articles/ba-4-ba-5-variants-rise-among-u-s-covid-19-cases-11654616069?mod=djemwhatsnews. The U.S. has recently averaged roughly 100,000 newly reported Covid-19 cases a day, according to the CDC, though epidemiologists believe the real number is significantly higher.

As prisons staff totals continue to drop system-wide, supervisors, including the lame-duck director, have begun to test creative explanations to the media and Congress, such as, " seven of the bureau’s 121 locations accounted for 40% of the vacancies," and,"Last calendar year we hired over 3,000 staff and, at one point, advance hired 1,000 staff above our funding levels,”  while ignoring that resignations and retirements in December set a record.                   According to Shane Fausey, national president of the Council of Prison Locals, there  “has been in a staffing crisis for years, ... and eerily our numbers nationwide have continued to decline.”  Fausey continued. “Our officers and employees are being pushed beyond the brink, and we cannot wait until the next director arrives to address this crisis.” www. government executive.com.           The newest PATTERN scores are apparently in use in at least some of the prisons, which appear to widen eligibility for FSA sentence credits (you know, the ones you aren't getting), by converting some Medium scores to Low. Any improvement is welcome, but it is still annoying to hear staff in many places misleading prisons as to their eligibility and who is responsible for the non-action on the year of sentence credits.          Have you come to prison recently, or recently had your direct appeal denied? Have you considered filing a 2255 habeas which concerns inadequate representation of counsel? If attorney errors prejudiced your chance for a fair trial or plea you may seek relief.          Be not afraid, and let not your heart be troubled.  Derek Gilna, Director of Research, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, NEW ADDRESS: 133 W. Market, #171, Indianapolis, IN 46204; dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, firststeprelief@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. (This Newsletter is for Information Only and Does Not Constitute Legal Advice. The Director of Research is not an  attorney currently licensed to practice in any jurisdiction.) Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."

Biden's Executive Order Again Prods the Prison System to Enforce FSA; Court Action Still Needed to Gain Relief;

 

 Congress in Session Most of June, So Will EQUAL Come to a Vote? COVID, SCOTUS, and Circuit Updates 

by Derek Gilna, Director of Research 

            Prisons were abuzz the past week regarding President Biden's recent executive order,  which devoted 90% of its content to the need for more police accountability and procedural reform, and less than 10% to what many consider an unduly restrained response to serious operational problems in the federal prison system and its obvious non-compliance with the clear language of the First Step Act (FSA).  

            As one respected reform advocate noted, "Regarding prison conditions and sentencing, the order seeks to improve material conditions in jails and prisons and identify inmates eligible for early release. Within 180 days, the Attorney General must detail steps it has taken to limit the use of solitary confinement, for example, as well as a comprehensive report on conditions in BOP and other federal facilities. Finally, the order has several provisions aimed at implementing the First Step Act and ensuring its implementation does not have any inequitable or disparate impacts."

            The order also stated the following: " Sec. 16 . Supporting Safe Conditions in Prisons and Jails. (a) For the duration of the HHS public health emergency declared with respect to COVID-19, the Attorney General shall continue to implement the core public health measures, as appropriate, of masking, distancing, testing, and vaccination in Federal prisons." It also directed that it, "(iii) identify... the number of individuals who meet the eligibility requirements under the CARES Act (Public Law 116-136), the First Step Act, 18 U.S.C. 3582(c), 18 U.S.C. 3622, and 18 U.S.C. 3624, for release as part of the DOJ's efforts to mitigate the impact and spread of COVID-19." In other words, CARES is alive and well, and releases should continue.

            Although there have been  a lot of rumors circulating about a recent change in PATTERN, the language of the same order on that subject shows that (as usual) it was untrue: "(C) (develop) a strategic plan and timeline to improve PATTERN, including addressing any disparities and developing a needs-based assessment system."    Obviously, the reference to a new "strategic plan" means that at the moment, there is NO NEW PLAN in place, and no improvements to PATTERN have actually happened.

            The sum and substance is that this order shows the White House is aware of the federal prison system's continued non-compliance with FSA, and the implication is that for the immediate future, you should continue to look to the courts to enforce the law.

            We get many inquiries about what the Second Chance Act is, including how one qualifies for it. To begin with, EVERYONE qualifies for the Second Chance Act, since it is the name given to annual laws passed to funnel money to various post-release programs, to fund vocation training and other re-entry services in various states. Prison officials have no say on who gets it, since it is administered by DOJ and the US Probation Office, and made available to everyone.

            There has been a lot of "hand-wringing" regarding the fact that EQUAL has not yet come up for a vote in the Senate, where it clearly has the votes to pass, with or without opposition. I would point out that the Senate is in session most of June, and if Majority leader Chuck Schumer is as serious about passing the bill as he says he is, it is a done deal.    However, I still see it more likely that the bill will come to a vote AFTER the November election, and perhaps with a strong push from the White House.

            Also, those in Congress actively investigating the failing federal prison system have been buried under an avalanche of material and evidence pointing to serious problems in the system, starting at the top. It has reached the point that even office-holders not previously known for interest in the messy subject of corrections are demanding answers, as the system nears a breaking point.

            One of the issues that continues to evade solution by DOJ is the continuing ravages of COVID, its variants, and now, Monkey pox, which the system continues to ignore, other than to isolate the infected in solitary confinement. Perhaps the new Biden order will have an effect on this, but until there is new leadership, and a modern management approach adopted, solvable problems will continue to grow worse.

            One of those problems is the quiet and under-reported spread of Monkey pox.

Officials with the World Health Organization (WHO) say that the sudden rise in Monkey pox cases worldwide suggests that it has been spreading in an undetected manner for some time. “We don’t really know whether it’s too late to contain. What WHO and all member states are trying to do is prevent onward spread,” Dr. Rosamund Lewis, the WHO’s Monkey pox technical lead, said at a news conference in Geneva on Wednesday.

Be not afraid, and let not your heart be troubled.

Derek Gilna, Director of Research, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, NEW ADDRESS: 133 W. Market, #171, Indianapolis, IN 46204; dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, firststeprelief@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. (This Newsletter is for Information Only and Does Not Constitute Legal Advice. The Director of Research is not an  attorney currently licensed to practice in any jurisdiction.) Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."