More Sentence Commutations By Obama This Week

Sentence Commutations for Drug Offenders

Obama: Don't be Stingy with Sentence Commutations

Obama is stingy with sentence commutations

Its a sad fact that Obama has pardoned and commuted less sentences in his presidency than any other president in modern American history. In a positive recent action, Obama issued 22 sentence commutations to federal inmates serving time for drug-related crimes.

These 22 sentence commutations nearly double the number of these actions that he took in the first three-quarters of his presidency. In an article from The Atlantic, snarkily titled, “Obama Offers Commutations to 22 of 209,155 Federal Prisoners,” David A. Graham delves into the good and bad news surrounding these commutations.

Here’s How that article gets going:

For opponents of the War on Drugs—a group that seems to be growing—and those who think the U.S. incarcerates too many people, Tuesday brought some good news and bad news.

The Good News: President Obama has announced that he’s issuing commutations to 22 individuals. They all share convictions for drug offenses; eight would have died in prison if not for clemency.

The Bad News: As The Huffington Post notes, that more than doubles the number of commutations and pardons Obama has issued through the first three-quarters of his presidency. As my colleague Matt Ford noted in December, Obama has been stingy with his mercy, even by the standard of recent presidents, who have used their power more infrequently (though George W. Bush issued only 11 commutations over two terms). Ron Fournier also wrote an excellent analysis of Obama’s pardons in 2013.

Commutations versus Pardons

Sometimes these two words get used interchangeably, and their meanings get lost, so lets clarify. A presidential pardon comes to ex-cons who are out of prison and want their crimes wiped off their criminal record. Pardons usually come at the end of a president’s term to wealthy donors who have no other criminal history besides the one federal conviction to which the pardon is being requested. Translation: pardons are for free men who want to get rid of their criminal record.

Commutations are a different animal. Sentence commutations don’t take away the underlying conviction, it only erases the remaining sentence so an inmate can go free immediately. The 22 people who received sentence commutations on Tuesday would have already been free had they been sentenced under current sentencing guidelines, so these commutations aren’t controversial at all.

A Step in the Right Direction

Obama is to be applauded for his actions, while still encouraged to do more. As the title of the Atlantic article points out, over 200k inmates are still incarcerated in the federal Bureau of Prisons. Considering America has about 5% of the world’s total population, but 25% of the world’s prison population, Obama could do much more to leverage his pardon and commutation power to affect a lot of change.

Sentence Commutations are a good start, though.

Bureau of Prisons Gets a New Director

Lappin is Out

Nearly simultaneously, the current director of the federal Bureau of Prison Harley Lappin was arrested for DUI and announced his resignation from his position at the bureau. All this occurred in late march, 2011.

Now that his retirement is looming, the embattled U.S. Attorney General has announced the appointment of Lappin’s replacement: Charles E. Samuels Jr. Below is an excerpt from the original DOJ piece from justice.gov.

“Attorney General Eric Holder today announced the appointment of Charles E. Samuels Jr. as the director of the Federal Bureau of Prisons (BOP).

“I am pleased that Charles will continue to build upon 23 years of distinguished service at the department,” said Attorney General Holder. “I am confident that Charles will provide the kind of effective and innovative leadership that will increase efficiency, further expand prisoner development and reentry programs, and allow for transparency and accountability at the Federal Bureau of Prisons – while remaining true to the BOP’s core mission of protecting public safety.”

“I am very honored to be appointed by Attorney General Holder to serve as the director for the Federal Bureau of Prisons and will continue to work with the great staff at every level of the BOP to meet our mission to protect society and provide meaningful life skills and reentry programs for our inmate population,” said Samuels. “I also look forward to working with the leadership and others in the Department of Justice, throughout the federal government and in states and local communities to further the department’s goals and objectives.”

Samuels began his career with the BOP as a correctional officer in 1988. He was promoted to a number of positions within the BOP including correctional programs administrator and executive assistant for the Northeast Regional Office. Samuels has served as associate warden at the Federal Correctional Institutions at Otisville, N.Y. and Beckley, W.Va.; ombudsman in the BOP’s Central Office; warden at the Federal Correctional Institutions at Manchester, Ky. and Fort Dix, N.J.; and senior deputy assistant director of the Correctional Programs Division.”

The Rumor Mill

This news will no doubt set the inmates of the Bureau of Prisons ablaze with rumor about how this new director will be great or terrible. The reality is that there is no indication that the BOP will do anything except the same old stuff under the direction of Samuels.

Decisions Involving Tapia v United States

Rehabilitative Sentences are Illegal

If you have a loved one who was sentenced to a longer than normal term of imprisonment specifically so he or she could participate in rehabilitative programs within the Bureau of Prisons, that sentence is unlawful and we can help get it reversed! Please read on for important information.

Contact Us for a Free Consultation

PCR Consultants is a different kind of consulting agency. PCR stands for Post Conviction Relief and we focus on changing outcomes when contending with the Department of Justice and Bureau of Prisons.

Find out how we can help by calling us for a free consultation at (480) 382-9287.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses and learn about us and how our services work on our about page.

Tapia and its Fallout

As reported in this earlier article on Supreme Court decisions this session, Tapia v United States was an important sentencing decision that can and will impact sentencing in U.S. District courts from now on. The collateral effects of the decision are now beginning to be felt, and here we’ll see two opposing decisions from two separate circuits involving the Tapia ruling in supervised release revocation decisions.

In Tapia, the Ninth Circuit decision was reversed in a 9-0 decision by the United States Supreme Court. The high court’s opinion was authored by Justice Elana Kagan on June 16, 2011. Justice Sotomayor filed a concurring opinion, which was joined by Justice Alito. This ruling held that:

18 U.S.C. § 3582(a) does not permit a sentencing court to impose or lengthen a prison term to foster a defendant’s rehabilitation.

This says that sentences passed down by judges that were lengthened specifically to enable the defendant to participate in rehabilitating programs within the Bureau of Prisons are considered unlawful. The ruling here is not challenged now by lower courts in original sentencing hearings. It is, however, being picked apart within hearings which deal with revocations of supervised release.

The First Circuit, in US v. Molignaro, No. 10-1320 (1st Cir. July 6, 2011), applied SCOTUS’s ruling in Tapia to reverse a lengthened term of imprisonment intended to facilitate a defendant’s rehabilitation upon revocation of his supervised release:

Acting under 18 U.S.C. § 3583(e), the district court revoked the order for supervised release and resentenced the defendant. Federal advisory sentencing guidelines recommended imprisonment of 3 to 9 months after such a violation, but the district court ordered 22 months (followed by further supervised release). The court imposed the longer prison sentence so that Molignaro would have ample time to take part in a course of sex therapy at a nearby federal prison (Devens) that could run for up to 18 months, and although the judge did not state the period he would have imposed in the absence of the treatment program, he did say that 9 months would have been too short in light of what he found to be Molignaro’s choices to go where children were present and the risk of untoward behavior was great. Molignaro objected that setting the imprisonment term with the goal of providing therapy was error as a matter of law, and that in any case 22 months was unreasonably long. We hold that the resentencing court’s objective of tailoring the length of imprisonment to provide adequate time for treatment was barred by statute, and we vacate the sentence and remand for resentencing.

The Fifth Circuit ruled the opposite way in US v. Breland, No. 10-60610 (5th Cir. July 19, 2011):

The question presented in this appeal is whether a district court may consider a defendant’s rehabilitative needs when revoking the defendant’s supervised release and requiring him to serve the remainder of his sentence in prison. The district court sentenced the defendant, William C. Breland Jr., to thirty-five months of imprisonment upon revocation of his supervised release. On appeal, Breland challenges the procedural reasonableness of that sentence, arguing that the district court imposed it for the sole purpose of qualifying him for the Bureau of Prison’s (“BOP”) 500-hour drug-treatment program. He also challenges the substantive reasonableness of the sentence. Because the plain language and operation of 18 U.S.C. § 3583(e) and (g), which governs post revocation sentencing, permits the consideration of rehabilitative needs, and because Breland’s sentence is not otherwise unreasonable, we affirm.

What this all means

To the lower courts, the application of Tapia to sentences handed down during supervised release revocation hearings is open to interpretation. Circuits are split and there is no way to tell which Circuit will go in which direction. This conflict in Circuit decisions will invariably be brought to the Supreme Court for further interpretation. Whether Certiorari will be granted is only up to the high court itself. Before this happens, however, different Circuit courts will continue to treat this issue within their own decisions.

If you want to find out if these rulings can help you or a loved one, please contact us to find out.

Bureau of Prisons – Administrative Remedies

A Necessity for Relief

The Administrative Remedy system is an idea that pervades throughout most all prison systems within the United States. It was created to keep prisons in compliance with federal laws which protect inmates against 8th Amendment violations for cruel and unusual punishment. The implementation also gives the appearance that a prison will hear and resolve grievances from its inmates.

This appearance is usually an illusion. Administrative Remedies work very infrequently and, if they do, it is only because that institution was so far out of legal compliance that a change needed to occur in order to prevent serious repercussions from the judicial and regulatory government above it.

A Necessary Evil

It is understandable why the federal court system requires these remedies to be tried and exhausted. An attempt must be made by the inmate to resolve his or her complaints within the prison system before getting the courts involved. Otherwise the court system would be filled with requests for small things like more toilet paper or other things of equally low priority (to a federal judge).

However, just because the need for remedy attempts exist, there is no relief that normally comes from them. The Bureau of Prisons is especially adept at stalling, delaying, ‘losing’ forms, and pushing time-frames so the inmate appears to have not properly used the remedy system and therefore cannot file a lawsuit.

That is correct. All administrative remedies must be completed within guidelines set by the Bureau of Prisons before legal action can formally be taken. If the BOP can disrupt this process, it can create an endless cycle of remedies that traps an inmate in bureaucratic red-tape so legal remedies can’t be sought. Or, at least, that seems to be the game.

There is Hope

There is an upside, though. Knowing the exact laws which tell the BOP how these remedies must be processed gives a legally sound shortcut through the games. I critical point in establishing a federal lawsuits is finishing these remedies, and PCR Consultants can show you and your inmate-loved-one just how to do it and avoid wasting precious weeks haggling with a system that is built to scramble the remedy system.

Federal Pretrial Primer 3: Getting the Prison you Want

This is the third and final installment of PCR Consultants’ primer on the federal pretrial phase of incarceration. The institution where one eventually does time is equally as important as how much time he or she will spend inside.

Your Next Destination

Are some Institutions Better than Others?

The short answer is: yes. Once it becomes clear that a prison sentence is unavoidable, the next question is always about where a defendant will do his or her time. This is not only an important question, it is the ONLY question that can make a meaningful difference to quality of life when doing time, and how soon an inmate can leave.

A lot of questions need to be answered, but this is where lawyers tend to fall very short. Lawyers can know a ton about criminal defense, but also know almost nothing about the inner workings of the Bureau of Prisons (BOP). The BOP uses its own set of standards to determine what security level an inmate “requires”. A future inmate of the BOP might assume that he belongs in a camp because he has no prior criminal record at all, but this isn’t always true.

If a sentence is too long, security levels increase. If it is too short, the certain camp a defendant asked to go to may no be given to him because it offers programs that require a sentence be certain length to qualify for placement there. At this point a judge’s opinion is only advisory, and the future inmate is fully at the mercy of the BOP. However, there is good news.

A sentencing judge can make a recommendation to the BOP of where he or she wishes to be incarcerated. If (and this is a huge ‘if’) that judge makes a recommendation for placement which is within BOP regulations for security level and program needs, that recommendation is granted a large majority of the time. If not, a future BOP resident can be sent literally ANYWHERE in the country that has room for them. Avoiding this mistake can mean months of time taken away in a halfway house and even up to a year off an inmate’s sentence for participation in the BOP’s residential drug and alcohol program.

Because lawyers make their money in criminal defense, most don’t spend the time to make truly informed decisions on what to ask the judge to recommend. This mistake is costly, but the cost of it is only apparent after one is already behind bars and its months-too-late to correct the problem. Prison Consultants, good ones anyway, have first-hand knowledge of the BOP process of inmate designation and which institutions are better and worse, closest to home, and have the programs available for each client’s specific needs.

Thank you for reading this primer. There will be many more to come which detail life inside the BOP, what to expect from a halfway house, and what’s in store for a released convict with the US Probation Office.

Federal Pretrial Primer 1: What Prison Consultants Do

This is the first of three articles written for those who may be just entering the federal criminal justice system and the Bureau of Prisons. If you, or somebody you know, is dealing with a federal legal problem, you will undoubtedly encounter a cast of characters, names, and acronyms that are new and probably intimidating. We’ll make this information as understandable as possible while explaining why Prison Consultants can do for you.

The Cast of Characters

Who and what you’ll encounter

When the federal government first sets eyes on a person of interest where they believe a crime has been committed, an investigation will begin from one of many policing agencies (i.e. FBI, ICE, ATF, and many other abbreviated agencies). These agencies will be the first contact you will have with the system and their role tends to be very short. Generally you never see or know about the investigation, and your first indication of their interest in you will be when they make an arrest or formal indictment.

The second character in this sad play is your attorney. If you have a personal attorney, chances are they have tried very few federal criminal cases (federal criminal defense law can very different from state/local defense law) and will refer you to another defense attorney that knows their way around the halls of a federal courthouse. This is your first ally in a system that seems enormous and overpowering.

Third, if you are released on bond, will be a federal Pretrial Services Officer. This is basically a Probation Officer that is assigned to keep you out of any more trouble than you’ve already been accused of until your trial/sentencing hearing.

In very basic terms, these people will comprise the main contacts a new defendant will have when introduced into the world of federal justice. How you choose and interact with these people can make an huge impact on the eventual outcome of a case, and there is no single guidebook to describe exactly how to navigate your way through this confusing and frightening time.

This is why a fourth entity can be the most valuable ally anybody can have during this time: a Federal Prison Consultant.

Every person, and each case, is vastly different. Most people trust their attorney to do all of the thinking for them and pray that they made the correct choice in attorneys. The truth is that a good attorney can make the biggest difference on whether you serve prison time and/or how much time you spend there. The problem is: how do you know that your attorney is doing their job?

How, then, are you supposed to be secure in the defense your attorney is presenting on your behalf? Answer: A Prison Consultant is an entity that does not legally represent you, nor are they bound by the American BAR Association or its bylaws. A consultant can be a seasoned pair of eyes that will help you through this tough time and keep you from making common mistakes during this stage of the game.

Intro to the Bureau of Prisons

The Bureau of Prisons

Most people who become a target of the Department of Justice, and are indicted, will be sentenced and given prison sentences. A vast majority of these people will, in fact, serve time. When faced with prison time, the only asset a defendant has in his or her possession is knowledge. Knowledge is the only the one can really take into prison.

So what is the Bureau of Prisons?

The Bureau of Prisons (BOP) is responsible for all federal defendants who are convicted and sentenced to any prison term. It is a gigantic, intimidating monolith to the untrained eye and is often regarded as a lawless agency that does whatever it wishes. This is officially and mostly untrue. Understanding how the Bureau of Prisons works is the first step in influencing it to your advantage. Below are a few key knowledge bits that will get you started in your path to figuring it out.

Regions : The BOP is divided into six separate regions. For sentences of less than 5 years, a newly classified inmate will normally be sent to (“designated” to) an institution within their region. The regions are: Western, North Central, South Central, North East, Mid-Atlantic, and Southeast The You can see a regional breakdown of the United States on the home page of the Bureau of Prisons on it’s homepage.

Security Levels There are four main security level designators for BOP institutions. They are Maximum, Medium, Low, and Minimum. To add a wrinkle to this simple list, the BOP calls its facilities which house these security levels by different names.

  • Maximum Security inmates are housed in United States Penitentiaries (USPs)
  • Medium Security inmates are housed in Federal Correctional Institutions (FCIs) or USPs
  • Low Security inmates are housed in FCIs
  • Minimum Security inmates are housed in Federal Prison Camps (FPC)

Now these are not the only types of institutions the BOP operates. There are facilities with special purposes like medical complexes and the ADX SuperMax in Florence, CO that houses the most dangerous federal inmates. You can read about all the different types of facilities owned by the BOP

What the BOP doesn’t mention on their page is that it contracts with multiple private-company prisons to house in-transit and overflow inmates. There are mixed reviews about these privately run prisons, but most are not favorable and the existence and use of these prisons isn’t widely publicized by the BOP.

Hierarchy

The BOP has a standard hierarchy that it uses to delegate command starting with the Attorney General of the United States, then he Director of the Bureau of Prisons. From there the Director of the Central Office oversees policy and the Directors of the Regional Offices. The Regional Office directors oversee the Institutional Wardens. Lastly there are normally two Assistant Wardens per institution (one is for programs, one is for operations), each cell-block-unit has a Unit Manager, who oversees the Unit Counselor and Unit Case Manager.

 

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