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

Obama Trip to BOP Prison Is A Big Deal

Obama Prison Visit A Reason For Optimism

 

By Derek Gilna

 

            For those facing long, or perhaps life sentences, it is often hard to develop or maintain a positive mental attitude about anything.  Negativity and hopelessness can easily creep into your psyche when proposed sentencing reforms do not address your particular offense. However, for even the most hopeless prisoners, the President’s scheduled visit to El Reno Prison, in Oklahoma, this week should be cause for optimism.

            Finally, the President has begun to address issues of concern to his core political constituency, mass incarceration.  Although the American criminal justice system is clearly racist, as pointed out by former Attorney General Eric Holder, its injustices are not limited just to people of color but to economically disadvantaged or abused individuals of all races..

 This dysfunctional system can only exist as long as American society is ignorant of its existence and impact on their daily lives, and realizes that this problem can no longer be ignored. Visits like this one will only draw needed attention from members of the general public and the mass media. The buzz is growing.

I’m sure the BOP is NOT looking forward to this visit, even though you know they will clean up that prison (and put palatable food in the chow hall for at least one day) and do their best to keep the President and his handlers from seeing how prisoners really live.  Nobody in the far-flung, poorly supervised BOP likes to see their boss come to town, especially not the big boss.

That’s because institutions like the BOP are not used to doing business in daylight, and do their best to hide behind “correctional necessity” in avoiding publicity.  (Only recently, PLN won a major lawsuit compelling the BOP to answer FOIA requests for prisoner lawsuit data doing back TEN YEARS.)

Most importantly to the incarcerated, both House and Senate Justice Subcommittees have promised prompt hearings on pending legislation for prisoner relief, and my prediction is that the news out of Washington will only get better because of the political momentum beginning to build.  And once that train of prisoner relief builds up some speed and the public learns the ugly truth about what has been hidden from their view for so long, the American criminal justice system will never be the same again.  Let me know when you are ready to punch your ticket.

 

Derek Gilna, 113 McHenry #173, Buffalo Grove, IL.

  dgilna1948@yahoo.com

Johnson v. US: A Landmark Decision for Prisoners

Supreme Court Voids Residuary Clause of ACCA in Landmark Decision

 

By Derek Gilna

 

            In a  landmark decision  to, the U.S. Supreme Court has struck down, voided, and set aside the residuary clause of the Armed Career Criminal Act (ACCA), while leaving the rest of ACCA intact. The impact of this cannot be overstated for those who received mandatory minimum sentence based upon the residuary clause.

            Simply put, in Johnson v. U.S., 13-7120,  the Supreme Court ruled that a district court as a part of the sentencing process cannot increase a sentence based upon the language of ACCA’s residuary clause; unfortunately, the court said, many district courts have classified as violent crimes offenses which did not rise to the level of violent acts, accepting the argument of prosecutors in almost every instance that they argued for an ACCA mandatory minimum sentence.  I must emphasize the rest of ACCA has been left intact, so if you were sentenced under anything OTHER than the residuary clause, this decision does not assist you.

            Since the residuary clause has been found to be unconstitutional, this means that relief cannot be denied to those whose appeals or habeas corpus claims are still pending. A strong argument exists for vacating the sentences of even those where appeals have been exhausted.  However, the court has not stated that the decision is retroactive in its application, so these arguments must be made with caution.  However, those who received sentences based upon the residuary clause finally have an argument that they can make that the courts will have to listen to. As stated by the Supreme Court, “imposing an increased sentence under ACCA’s residual clause violates due process.”

 

Derek Gilna, 113 McHenry #173, Buffalo Grove, IL  60089

  dgilna1948@yahoo.com

Smarter Sentencing Act Progresses in House and Senate

Smarter Sentencing Act Continues to Gain Support

 

By Derek Gilna

 

In a week where no new Supreme Court decisions impacted prisoners, and no new federal clemency petitions were granted, I turn my attention to Congressional action on the Smarter Sentencing Act of 2015. The Act would reduce the mandatory minimum sentencing for drug offenses, and reduce sentences of “couriers,” defined as those whose “offense was limited to transporting or story drugs or money.”

 I previously reported on the recent Bipartisan Summit on Criminal Justice Reform, where a group of lawmakers, activists, and political operatives from many different ideological backgrounds discussed this bill and others like it.  Conferences like this make it easier for Congressmen and Senators to support prisoner relief legislation.

The conference also focused on the Redeem Act, a bill that proposes a number of reforms on solitary confinement and the sealing of some criminal records, and other legislation that would allow prisoners to access Pell Grants to further their college education while in prison.  These legislative proposals and the positive energy from sentence-relief conferences and news articles have helped to produce a positive energy that will only help the cause of sentence reform.

It appears, although some observers are skeptical, that Democrat Hillary Clinton will run her Presidential campaign from the left, and she has already made noises about pushing sentencing reform.  Rand Paul, on the Republican side, has also been a consistent supporter of reform, and recently gained widespread positive publicity for his defeat of some of the National Security Agencies domestic surveillance capabilities (also widely used for warrantless-and illegal- surveillance of many now in federal custody.)

Meanwhile, the Smarter Sentencing Act continues to steadily pick up co-sponsors, a sure sign that it is gaining momentum in the votes department. As of June 3, the House version had 44 cosponsors from both parties (out of 435 Representatives), while the Senate version had 12 (out of 100 total Senators). Obviously the closer it gets to a majority of each house acting as co-sponsors, the more likely it is to pass and become law. It has not yet been voted out of Committee in the Senate, but that may be attributable more to the fracas regarding the confirmation hearings of the new Attorney General than anything else.

 

Derek Gilna, 113 McHenry Rd., #173, Buffalo Grove, IL  60089. dgilna1948@yahoo.com. (847) 878-0160.

 

 

New Evidence of Serious Prosecutorial Misconduct

Entire Orange County Prosecutor’s Office Disqualified for Misconduct

 

By Derek Gilna

 

            An isolated incident or just the tip of the iceberg?  Many of you in custody already know the answer.  The ENTIRE legal staff of the Orange County, California Prosecutor’s Office (250 attorneys) has been disqualified by a federal judge in that state for prosecutorial misconduct, including the systematic concealment of exculpatory evidence and the use of coached, perjured testimony of confidential informants and jailhouse snitches. Judge Thomas Goethals took the extraordinary action after reviewing facts in the case of Scott Dekraai in Santa Ana, California.

            An investigation showed that, coached by prosecutors and sheriff’s deputies,, jailhouse snitches fabricated the confessions implicating dozens of prisoners.  Additionally, prosecutors and deputies constructed an entire computerized data base that remained secret regarding this jailhouse informant system, and concealed its existence despite numerous specific discovery order issued by the Court.

            What does this mean to your case?  My experience shows that state and local law enforcement are much more prone to this kind of affirmative concealment than federal authorities, but this is not always the case, especially where state and federal authorities work together on an investigation.  There is one case in Texas that I am working on where I know that a similar scenario took place.

            However, there have also been dozens of cases that I have reviewed where the entire body of evidence in the case, including many raw investigative materials that might have assisted defense lawyers on the district court level, was either not requested by defense counsel, or not produced. (The Brady case requires ALL of this material to be produced, whether requested or not.)

            The problem of course is proof, and that is always going to be the sticking point.  In instances where true prosecutorial or law enforcement misconduct has occurred, some investigation and digging is necessary.  To convince a court, it is not enough to have a mere suspicion; you must have some hard evidence, either in the form of affidavits, or some other proof to show that you are innocent of the charges of which you were convicted. Whoever you hire to handle your case must also know where to dig, for facts not only on your case, but other related cases in the same jurisdiction, because bad apples come by the basketful, not one at a time.  There are experienced prisoner-rights counsels in these jurisdictions, many of whom have worked with Prison Legal News, handling cases at reasonable costs.  Do you have such a case?

 

Derek Gilna, 113 McHenry Rd. #173,

 Buffalo Grove, IL  60089.

  dgilna1948@yahoo.com