Update on Proposed Federal Habeas Corpus Action Changes

Changes Planned to 1983 Prisoner Lawsuit Format A Welcome Development

 

 

            The Washington University Law Review has published a study that they propose to forward to Congress to change the primary litigation component by which prisoners can sue for violations of their civil rights by prison authorities.  Commonly known as 1983 actions, the study notes that in 2015, “inmates filed nearly 27,000 civil rights actions in federal court.”

            Unfortunately, this form was “based upon a model first developed in the 1970’s,” the report continued, and can be “confusing to people not familiar with the law and can diminish their chances of winning a lawsuit,” according to Richard Frankel of Drexel University Kline School of Law and Alistair Newbern of Vanderbilt University Law School.

            The recommended changes would include not requiring a plaintiff to bring up his litigation history, removing language that encourages the plaintiff to “briefly” state the facts, replacing it with a provision asking for as much detail as possible, and eliminating the portion of the form that asks prisoners to state the legal grounds of their claim.

            There are enough hurdles to life in prison without having clear yet another one to get relief for a civil rights violation.  Unfortunately, prison libraries have drastically curtailed or eliminated legal research resources, and the authors of the study feel that this is unfair and should be changed also.

            Once again, we are available for such actions, as well as many other prisoner relief petitions, should you wish to pursue them. We encourage you to visit us at federallc@yahoo.com for further information.  Thank you.

 

Federal Legal Services, Inc.

A not-for-profit corporation

113 McHenry #173

Buffalo Grove, IL 60089

           

Senate Sentence Relief Bill Advances Closer to Passage

Newest Draft of Senate Bill 2123 Amended in Committee, Advances

 

by Derek Gilna

 

            Many of you have been inquiring whether the facts of your case would qualify you for relief under the new Senate or House bills. Of course, as I have told many of you individually,  there are many hurdles to clear before these bills become law, so it is important to not focus too much on the current language in the proposed legislation.  That having been said, a few changes were made in committee this past week that at least gives us some clues as to what the final bill will look like.

            First, there has been more emphasis regarding extra good time for programming in this version, with 5 extra days given for 30 days of successful programming.  People currently incarcerated for some narrowly defined violent crimes, and with more than a 15 year sentence for fraud or other white collar offenders are excluded. The RDAP program is mandated to ensure that everyone eligible can enter the program early enough to get the full year of credit. The BOP has a time limit to put together a plan for these programs and is subject to annual reviews by Congress to check its progress, because I suspect  Congress is aware of past BOP failures on RDAP and other sentence-reducing programs. For the first time, the BOP will have to do risk assessments to determine offenders' suitability for early release.

            Secondly, compassionate release requirements are now spelled out in the statute, rather than merely left to BOP rule-making.  Obviously, Congress doesn't trust the BOP to properly implement this program either.

            Finally, there are some significant reductions for drug offenders. Crimes that had MMs of 20 years are now 15 years; it is possible to petition under 3553a for retroactive relief. In the case of a non-violent drug offense previously calling for a 10-year MM, that is reduced to 5. People who received no relief under the Fair Sentencing Act can now petition the court for relief. Additionally, for the first time, it appears that  3552a petitioner must be brought to court and have an opportunity to present his case.

 

Federal Legal Center, Inc.

Derek A. Gilna, Director

113 McHenry, #173

Buffalo Grove, IL  60089

dgilna1948@yahoo.com

 

 

Justice Reform Update

Senate, House Bills Advance Despite Law-Enforcement Pushback

 

By Derek Gilna

 

            Only good news came out of the “mark-up” session on the Senate bill for prisoner relief, after it was approved as expected by the Senate Judiciary Committee.

Those opposing the bill, such as Republican Presidential Candidate and Texas (where else!) Senator Ted Cruz, (who took time out from trying to shut down the government over Planned Parenthood), complained about the fact that approximately 13,000 additional federal prisoners will be released in the next year. Former federal prosecutor Senator Ted Sessions also opposed any reductions (Surprise, surprise!).

            However, these actions were expected by the bill’s sponsors, and easily turned aside. Senators Grassley and Durbin and their allies supporting the bill are fully prepared to beat back the delaying tactics usually used to oppose these measures.  The leadership of both parties stands firmly behind the bill and I am still expecting passage sooner rather than later.  There is no question that President Obama will sign the legislation when it hits his desk.

            We know that the bill still does not go far enough, and has little to say about white-collar prisoners, but a new coalition is banding together to propose the next generation of reform after the Senate and House bills pass. These proposals are the next logical step in this process, and would drastically reduce the number of people coming into the system. More attention will also be paid to bills already introduced to give the currently confined a pathway to earlier release by programming and “good behavior.” Other advocates are proposing legislation to limit the immunity of prosecutors who violate discovery rules and commit other misconduct, as advocated by some federal appellate court judges.  There is a lot making its way through the pipeline.

            For those of you not wanting to wait for legislative relief, the roadmap for relief is clear given existing case law and some exciting cases currently before the U.S. Supreme Court.  We would be happy to help you explore your options.

 

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd. #173

Buffalo Grove, IL  60089

dgilna1948@yahoo.com

(847) 878-0160

Criminal Justice Reform Moves Ahead in DC

Don’t Question Grassley’s Clout in the BOP/House Bill Summary

 

By Derek Gilna

 

            As a native Chicagoan, I know a little bit about “clout,” that use of power to get what you want done, no matter who gets in the way or whose feelings get hurt.  The BOP found out what clout means when they ran afoul of Senator Charles Grassley in peremptorily banning pork from BOP menus.  The BOP claimed that a “survey” of prisoners found that they wanted pork off the menu. (Next they’ll be surveying prisoners over what sort of ‘imitation’ coffee they would prefer.)

            You will recall that Grassley is one of the co-sponsors of the new prisoner relief bill introduced recently, and as head of the Senate Judiciary Committee has a lot to say about the subject and how the BOP runs its operation. That kind of clout bodes well for some sort of relief coming out of the Senate.      

            What about the House?  The House bill also has some powerful co-sponsors, and does resemble the Senate bill.  It would also eliminate mandatory life sentences for three-time, nonviolent offenders, reducing minimum sentence to 25 years. It would also have retro effect, except for offenders who have prior serious violent felony conviction that resulted in a prison sentence of greater than 13 months.  It would also apply the FSA retroactively to several classes of prisoners.  Although I would have liked to see more in this bill, it’s a start, and an important one.

            Sentence relief comes in bits and pieces, because politics is important, and even in the current more favorable climate for relief, no one wants to get too far out in front of the parade.  You can count on parts of the DOJ to drag their feet, but the DOJ has no votes in either the Senate or House, and legislators are anxious to show the public that can cooperate on something.

            How may we help you? 

 

Federal Legal Center, Inc

Derek Gilna, Director

113 McHenry Rd., #173

Buffalo Grove, IL 60089

dgilna1948@yahoo.com

 

 

Congress on the Spot as Fall Session Begins

Congress Returns To Session With Lots to Do

 

By Derek Gilna

 

            In another reminder about how fragile the fabric of government can be, the U.S. Congress returned to work Tuesday with only two short weeks to pass legislation to prevent yet another government shutdown.  Although both sides have agreed that they wish to avoid that, this topic will be distracting Congress for at least a short while from other pressing business, such as criminal justice reform.

            Numerous prisoner relief or prisoner-friendly reforms are on the table in Washington, but as yet, none of them have made it to the floor for debate, been passed, put on the President’s desk for signature, or signed into law.  That’s something to remember the next time you hear a rumor stared by someone with a cruel sense of humor.  Senator Charles Grassley has promised some news this week, so we will be hopeful that it is something that will bring real sentence relief.

            The train of criminal justice reform is gathering speed and it will be hard to stop.  Whatever your politics,  the recent Snowdon revelations about government surveillance, the “Black Lives Matter” program attack on police injustices, and the Washington Post revelation that even local police departments illegally spy, has shown the government’s grip on the surveillance state has loosened quite a bit in the last few months, although it can be of scant solace to the already incarcerated.

            The fact of the matter is that most arrests and convictions could not occur without some form of surveillance, and what human wants to go through the time-consuming process of swearing out an affidavit for a warrant that the judge might not grant.  It’s always easier to use some form of covert surveillance, out of the prying eyes of the public, to get the information you need, so that you can get a “win” in court, rather than achieve a just result.

            I examine dozens of fact situations and court dockets a week, and I can safely say that in over two-thirds of them I have found evidence of either police or prosecutorial misconduct, including illegal surveillance, Brady violations, and the like.  The facts are there for the taking. Reexamine your case for these tell-tale signs, make note of them, and pass them on. Although perhaps the current case holdings do not directly benefit you, a new case that might is perhaps just over the horizon, with just your fact scenario.  The pace of attacks on criminal sentences is rapidly accelerating as the media, the public, and the judiciary all begin to see the extent of the problem.  We are here to help.

 

Federal Legal Center, Inc, 113 McHenry #173, Buffalo Grove, IL  60089 dgilna1948@yahoo.com

           

Johnson Case is having an Impact on Sentence Relief

Johnson and Presidential Campaign Setting the Stage for Sentence Relief

 

By Derek Gilna

 

            Three things came to my attention this week.  First, the Johnson case is a keeper;  courts are using it with little of the hesitancy and generally associated with the judicial system, for an often overlooked reason.  Secondly, it looks like the Presidential campaigns are getting involved in the issue of sentence relief.  Finally, Congress is starting to show signs of moving ahead on the same issue.

 As to Johnson, one must remember that judges, including the justices of the U.S. Supreme Court, rarely want to be ground-breakers in their decisions. They are very thin-skinned when it comes to criticism. The Supreme Court gave big hints in recent prisoner-related decisions, such as Alleyne, on how it wanted the circuits to rule on certain issues, but the lower courts didn’t follow through. In the Fair Sentencing Act, lower courts once again had a golden opportunity to release larger numbers of people, but didn’t grant relief nearly as often as it was deserved. However, the Johnson case now gives them a non-controversial way to cut sentences without Congress or law enforcement bodies criticizing them, and there has been zero criticism of these sentence cuts.

Secondly, Bernie Sanders (my favorite socialist), has sharply criticized the punitive American justice system, and has said when Congress returns from recess, “I will be introducing legislation, which takes corporations out of profiteering from running jail.”  He added: “We want to deal with (mandatory) minimum sentencing,” and want to legalize marijuana, which will drive the DOJ crazy.  Although no one (yet) thinks Sanders will win nomination, he is driving the discussion on justice and gaining support as a result, which leads to my last point.

Congress is full of people who make their living doing nothing but talking, and getting paid well for it (kind of like other people we know, right?).   When Sanders, Rand Paul, Clinton, and the US Sentencing Commission talk about justice reform, and even Senator ((Mandatory-Minimum) Grassley is planning to hold hearings this Fall on the new legislation, you’ve got to think something good will happen, and happen soon.

In the meantime, Federal Legal Center will continue to file for sentence relief, be it with a 2255 habeas corpus, with a 2241 for actual innocence or sentence correction, with a federal civil rights complaint for poor medical treatment or compassionate release, or with a letter or phone call to handle other matters like transfers and other services.

 

Federal Legal Center, Inc., an Illinois not-for profit corporation,

113 McHenry Rd. #173, Buffalo Grove, IL  60089.

 dgilna1948@yahoo.com

 

(847) 878-0160

Bureau of Prisons Clemency Fails to Live Up to Expectations

Highly-Acclaimed Program Has not Lived Up to the Hype

 

By Derek Gilna

 

            Clemency relief is something that caught our imagination many months ago, when the BOP program to apply over Corrlinks got everyone excited.  Recently, however, I have come to the conclusion that the highly-touted BOP clemency process (not private applications) is about as reliable  as that almost daily inmate.com rumor that Congress is about to reduce federal sentences by one-third. With less than 100 petitions granted out of 20,000 funneled through the BOP program, one has almost a better chance of hitting the lottery than getting a BOP-generated clemency.

It’s not that the President’s heart is not in the right place-it is.  You saw that by the fact that he went to El Reno prison.  No matter how many coats of paint you put on a jail, it still looked like a jail, and there was evidence that the experience affected him deeply. (More federal officials and judges should make the same visit.) However, despite the President’s good intentions, it appears that the DOJ, whether intentional or unintentional, has done everything it could to throw sand in the gears of the entire BOP clemency process. 

 Any attorney volunteering (meaning: “unpaid”) for BOP clemency file review has to endure four 90-minute training sessions before they are even sent files to examine.  How likely is it that many of them will follow the process through to completion, given that it is difficult to even get your attorney to call you back if you are a paying client?   It is my opinion that a mere handful of those BOP applications have been put into the system for processing. There is no method by which you can check where you are in the BOP application process.

If you are interested in refilling your clemency application, I would be pleased to do so at reasonable cost without delay.  Time is running out with Obama leaving office in 15 months.

And while it is true that Congress is now finally working on sentence relief, it will take months before we know whether or not there will be sentence relief, and whether it will be retroactive. In the meantime, as always, your best hope of relief is someone with years of navigating the criminal justice system, and will work with you to win sentence relief.

Federal Legal Center, Inc, an Illinois not for profit corporation

Derek A Gilna, Director

P.G. Miller, of counsel

113 McHenry Rd. #173

Buffalo Grove, IL  60089 

dgilna1948@yahoo.com