Smarter Sentencing Act Reintroduced with Beter Chance of Passage

Reintroduction of Smarter Sentencing Act Has Broad Bipartisan Support

 

By Derek Gilna

 

            The Smarter Sentencing Act (SSA), first introduced in 2014 and reintroduced into the current, two-year Congressional session, with many co-sponsors from both major political parties, is the newest manifestation of the country’s disgust with the current state of the federal criminal justice system.  There has been both rioting and peaceful protests around the country against that system.  While DOJ and BOP officials trumpet a paltry reduction of 5000 in the federal prisoner count, to 215,000, tens of thousands of prisoners still languish, and their families and communities suffer unnecessarily.

            We are all familiar with SSA’s provisions, which give some degree of power back to the judges to mitigate the burden of mandatory minimum sentencing, and curb some the system’s worst abuses. I like its chances of passage.  Like any struggling addict or alcoholic, however, the federal criminal justice system continues to be “hooked” or “drunk” on the big-business of mass incarceration.  Over-zealous prosecutors continue to harass defendants and their over-worked public defenders or underpaid appointed counsel into one-sided plea agreements, and punish those exercising their Constitutionally guaranteed right to jury trial with long sentences and added enhancements, and allow hearsay evidence and “Ghost Dope” to affect sentencing. 

            However, public support for this system has collapsed.  Even the aged Senator Charles Grassley of Iowa, Chairman of the Senate Judiciary Committee, a roadblock to sentencing reform, is feeling the heat.  Over 50 Iowa pastors recently signed a bill imploring him to support federal sentencing reform. “The time has come...to consider the various bipartisan bills, reach consensus, and enact broad reforms that respect ..dignity, …limit disproportionate sentences,…and encourage reintegration of (released prisoners),” they wrote.

            Also feeling some hear, the US Attorney in Chicago  recently tossed dozens of drug cases based upon “stash-house”  entrapment (where agents trolled and encouraged known felons to burglarize houses they claimed held drugs) when they were criticized by more than one federal judge for unfairly targeting minorities. The US Supreme Court recently struck down a North Carolina law requiring GPS monitoring of certain defendants after they had already completed their sentences, a violation of Fourth Amendment guarantees against unreasonable search and seizure.

            There has also been new public pressure on improving on better programming in the BOP system, which in the past in the BOP has often merely constituted “check off the box” instead of actual education. A new bill introduced recently calls for the return of Pell grants to help pay for prisoner college studies. More and more lawsuits are being filed regarding poor medical treatment (including several by this office), and pressure on the BOP to actually implement the compassionate release policy already on its books (including a recent one granted from Butner by me), as well as constant pressure on the BOP bureaucracy to actually do its job as spelled out in their program statements. It is only the beginning.

           

 

Derek Gilna, 113 McHenry Rd. #173, Buffalo Grove, IL  60089, dgilna1948@yahoo.com

White-Collar Sentencing Changes

White Collar Sentencing Changes Sent to Congress but No New Clemencies

Other New Prospects for Sentence Relief After Denied Appeals, 2255's

 

by Derek Gilna

 

            As expected, the newest US Sentencing Commission changes for this cycle have been sent to Congress, and will become effective November 1, 2015.  There is still no word on retroactivity.  Included in those changes are amendments to the concept of "Relevant Conduct," generally used by federal prosecutors to unfairly add sentence time above and beyond that agreed on in good faith by the accused in plea negotiations. Although I don't think that the changes go far enough, it's a start.  Once again, we will wait to see what the retroactive application is of these changes.

            Unfortunately, there have been no new clemencies granted since Easter, and although I remain cautiously optimistic,  this administration still is on pace to underutilize this sentence relief option compared to previous Presidents.

            I would like to revisit the case of BEGAY (Begay v. US,553 US 137, (2013), which according to our friends in the law library at FCI Sheridan, Oregon, has been successfully applied in recent 2241's filed in the 9th Circuit to vacate sentencing enhancements.  As we know, 2241's are an underutilized procedural tool when used properly to attack various inconsistencies in the sentencing process, even when you have already failed on direct appeal and 2255 filings.  Here's how it works in BEGAY fact situations.

             First, you have to have prior state offenses that although they sound like they would be serious crimes, do not meet the federal definition of predicate violent offenses.   In Begay's case it was DUI offenses, which the SC noted were not violent offenses that qualified as enhancing predicate offenses in alleged Career Offenders Situations.  This precedent has been followed already in the 9th, 8th, and 7th Circuits, with only the 5th standing athwart the progress on the issue, on other grounds. It is unsettled law in other circuits.

            Obviously, there is much more to say on  this issue than this brief summary allows, and 2241's can be granted for other reasons other than a Begay issue, but the possibility of sentence relief is there, if properly researched and addressed.  We look forward to your questions on whether you qualify for this relief.

 

Derek Gilna, JD

113 McHenry #173

Buffalo Grove, IL  60089

(847) 878-0160

dgilna1948@yahoo.com

 

           

Hillary Clinton's Speech Should positively Impact Sentence Reform

Sentencing Commission and Congressional Legislative Updates

 

By Derek Gilna

 

            On April 30, the U.S. Sentencing Commission promulgated its newest white-collar sentencing reforms, which will have the effect of lowering sentences for most offenders. That new sentencing change will go into effect in November unless changed by Congress (which has never happened.)  There is no word yet on whether said changes will be retroactive. Additionally, the Smart Sentencing Act continues to work its way through Congress, and hopefully will gain some traction in the coming months as candidates try to position themselves as ahead of the curve on social reform, highlighted by the riots against police misconduct in Baltimore and demonstrations in major cities across the country on this and similar social justice issues.

In the past week, I commented on Hillary Clinton’s most recent major speech which focused on sentencing and incarceration reform.  Although that speech carved out no new ground and offered no immediate legislative solutions, it did put these two oft-ignored subjects front and center into the Presidential race.   Floating these ideas early in the election cycle was a low-risk method of gauging public opinion on them before the campaign really gets into full-swing, and gives her a chance to respond to any negative reactions.   Although almost everything Hillary says is automatically attacked by her opponents, these comments were not.  This is significant for several reasons.

            One, Congressmen and Senators are not leaders, and shun controversy. Widespread public condemnation of recent police and prosecutorial misconduct, coupled with Hillary’s comments, has created political cover for legislators to actually do something to promote sentence reform.

            Two, contrary to what the media says, there is little to no difference between the major political parties on any major issue, other than nonsensical social ones that arguably should NOT be an area of government concern anyway (like abortion and same-sex marriage). Getting out front on an issue like sentence relief and prison reform allows a candidate to set himself or herself apart from the rest of the “suits” as a compassionate, forward-thinking individual worthy of a vote, while also allowing them to emphasize economic and tax savings from a reduction of prisoner counts.

            Third, the speech shows that the “War on crime” is, if not dead, on life support.  “Soft on Crime” is also a campaign catch-phrase that is D.O.A.  There is no major public figure in either party seeking longer sentences or seeking an increase in prisoner counts.

            I would be pleased to work with you in reviewing your case and seeing if you are entitled to relief, either from  sentencing errors, poor defense attorney representation, inadequate or deliberately indifferent prison medical care, or failure to grant a deserved compassionate release. 

 

Federal Legal Center, Inc.

 

Derek Gilna

113 McHenry #173

Buffalo Grove, Il  60089

(847) 878-0160

dgilna1948@yahoo.com

Supreme Court News

Special Newsletter for April 22, 2015

 

By Derek Gilna

 

            The US Supreme Court has once again pushed back against overly intrusive government searches of defendants in a routine encounter with police where police have no grounds for such a search.  The newly-announced decision in Rodriguez v U.S., 13-9972, reversed and remanded an Eighth Circuit ruling that the search of defendant’s car by a drug sniffing dog was within the scope of the traffic stop for a minor traffic violation, and that an eight-minute delay for the motorist was constitutionally acceptable.

            Not so fast, the Supreme Court said, calling the search “unlawful.” The Supreme Court has previously struck down convictions based upon evidence gained as a result of a warrantless placement of a GPS tracking device on a defendant’s motor vehicle.  Interestingly, Justice Scalia, generally known for his conservative views, once again joined the majority of justices to further limit government’s ability to arrest people without probable cause. The justices were not persuaded by the government argument that the intrusion on defendant rights was justified by the Government’s interest in stopping the flow of illegal drugs. (This is the same faulty Government rationale used to justify TSA searching Granny at airports in the name of stopping “terrorism.”)

            It is hard to overestimate the value of this decision.  Although obviously it is limited to the facts of this case, it sets clear limits on what is and isn’t acceptable in police stops.   Of course, it would not be helpful in cases where the defendant is already under investigation by police or fleeing the scene of a crime.

            Brick by brick the high court is starting to slowly build a wall of protection of citizen rights, to rein in the natural tendency of law enforcement to expand its power beyond what is necessary to perform its core function of protecting its citizens against violence and disaster.  All we have to do is read the newspaper to see that the public is fed up with police misconduct in patrolling the streets, and ready to have a discussion as to what and what is not proper policing.

Is this ruling applicable to your case and your set of facts.

 

Derek Gilna

113 McHenry #173

Buffalo Grove, IL  60089

dgilna1948@yahoo.com

A Small Victory for Prisoner Dignity

Prisoner’s Battle for Decent Medical Care Humbles BOP, Wins Cash Settlement

 

By Derek Gilna

 

            Those of you who follow this newsletter know that I have been honored to be a writer for Prison Legal News (PLN), a publication that has been a champion for prisoner rights and a tireless campaigner for decent treatment of federal prisoners.   Recently in that capacity, I submitted an article to PLN about a prisoner who, filing pro se, won a hard-earned settlement against the BOP for shoddy medical care, not for a life-threatening illness, but for one of those myriad examples of deliberate indifference to those everyday medical issues that, if ignored, can often turn into larger, life-threatening conditions.

            This news item will not gain big headlines, but it is an example for all of us as to what can be accomplished by a slow, steady effort of using the documents and procedures that currently exist to win relief.  Although a competent legal professional would have surely won more settlement money than he was able to obtain while confined in the federal system, it shows that many judges do take these administrative procedures and prisoner court filings seriously.

            Michael Alan Crooker filed a Federal Tort Claims (FTCA) under 28 U.S.C. Sections 2671-2680 alleging "malicious prosecution, negligence, and medical maltreatment by the United States Marshall's Service ('USMS') and the United States Bureau of Prisons) 'BOP')." The pro se litigant weathered a government motion for summary judgment and endured to win a $8,000 settlement from the federal government.

            Crooker, prior to filing the suit, was a diligent advocate for his own medical treatment, refused to tolerate the continuing pattern of inadequate BOP medical treatment.  The plaintiff then had to endure the standard BOP policy of making life difficult for any prison who dares to challenge this medical indifference by purposely denying him proper corrective eye wear, which included loss of good-time on questionable grounds. Crooker also had complained of the fact that the BOP psychologist had improperly revealed confidential medical information to non-authorized personnel, in contravention of the BOP's own policy statement.

 

            Similar opportunities for relief exist for you, if you are only willing to take advantage of them. Mike Crooker didn’t give up, and won not only some money, but some well-deserved self-respect and necessary medical treatment. The BOP paid the settlement money into Crooker's commissary account, making him, at least for a time, a very popular man on the pound.

Derek Gilna
dgilna1948@yahoo.com

Sentencing Updates

Newest Trends in Sentencing Relief

 

By Derek Gilna

 

            Although there was nothing of great substance to report on the Congressional front in the quest for retroactive sentencing relief, the two-level drug reduction and clemency cases continue to move slowly and at an uneven pace through the justice system, depending upon your court’s location, case load, and level of interest.  There is also some news to report on both life sentences and sex cases, based upon new U.S. Sentencing Commission (SC) reports.

            To put all of this in perspective, a quick analysis on how the federal bureaucracy works is in order.  First, there is a private discussion among prisoner relief organizations, members of Congress and their staff, and the Sentencing Commission.  At some point, this discussion goes public, but the broad parameters of relief have already been decided behind closed doors.  This was the pattern followed in the crack reductions,  the two-level reductions, and the pending white-collar reductions.

            However, it has been little noticed that the high number of drug-related, non-violent offenses has been the subject of a March, 2015 SC report which indirectly criticizes the number of such sentences (most of which are given after an adverse trial verdict), and notes that many other mandatory minimum sentences also are in effect life sentences, given the offender’s life expectancy. Sex offender sentencing earlier came under similar scrutiny by the SC in early 2013, with little follow-up discussion in the media thereafter.  Nonetheless, it does appear that some behind-the-scenes dialogue is taking place on these draconian sentences that bear little relationship to actual harm caused.  The SC called the sentencing levels “outdated” and subject to “widespread inconsistent application.” When further progress is noted on both areas, I will so advise you.

            In the meantime, I am available to handle  any issue that you might have in the court system and the prison system, including moving along any filings that you already have dragging along without apparent progress. To the extent that direct, non-pro se legal action is needed in the many scattered federal district courts, I work with attorneys all over the country who charge reasonable fees and who are pleased to present the pleadings or other documents that I have drafted. I have been involved in the federal courts not for months or years, but decades.  Put that experience and perspective to work for you.

 

Derek Gilna

113 McHenry #173

Buffalo Grove, IL  60089

dgilna1948@yahoo.com

(847) 878-0160

Prosecutorial Misconduct Costs a Life in Texas

Legislative Updates and Prosecutorial Integrity

 

By Derek Gilna

 

            Most legislative relief activity in Congress in 2015 has been confined to the reintroduction of the bills that expired without being passed in the last session that ended in December.  One of the new ones, known as the “Democracy Restoration Act,” would restore voting rights to prisoners returning to their communities after release, assisting in their reintegration.  I will keep an eye on this and other legislation of interest.

            In almost all of the cases that I review I find evidence of prosecutorial misconduct in one form or another.  Other than the usual problems of over-charging, bullying of defendants to get them to testify against others (whether the testimony is truthful or not) in return for sentence reductions, threatening undeserved enhancements, or the like, there are other even more egregious instances. Attorney General Holder has issued what amounts to his own executive orders regarding some of the worst of these practices, but his pronouncements lack the force of law for those already convicted as a result of this type of behavior.

            However, there are instances of prosecutorial misconduct that, if proven, can win an evidentiary hearing which can result in re-sentencing and less time in jail.  The mainstream media has begun to cover this phenomenon, and this bodes well for getting the public to become aware of this problem and press for more change.  However, the cases and laws on these items are already on the books.  What is needed are more cases brought to highlight the problem, to force prosecutors to take a new look at their practices and reform themselves or face public censure.

            One of these cases is that of a Texas man, Cameron Todd Willingham, executed after being convicted of murdering his three children.  It turns out that the forensic evidence was completely bogus, The prosecutor in that case, John Jackson, did everything he could to cover up the faulty evidence, obtain bogus testimony against Willingham, and hide potentially exculpatory evidence.  As a result of Jackson’s efforts, all appeals were denied, and an innocent man was put to death.

            Although the loss of even one innocent life is a travesty, what about the thousands of other lives of people in the federal prison system who are not guilty of the charges against them, or who were denied the right to properly use exculpatory evidence or who were wrongfully denied the ability to discredit the perjured or exaggerated testimony of informants used to convict them?  They also deserve relief, and quality assistance.  I’m here if you wish to move ahead on this or other issues that might win sentence relief.

 

Derek Gilna

113 McHenry #173

Buffalo Grove, IL  60089

Dgilna1948@yahoo.com