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CTSTAR-logo-rgbLike a growing number of jurisdictions, the District of Connecticut has a Support Court program (reentry court) that works closely with individuals on federal supervised release, as well as a select number of defendants who have plead guilty and are awaiting sentencing. The program has been an incredible asset since its inception. However, like many useful programs, it wants for funding. In this regard, CT Star has started a fundraising effort. In particular, CT Star is enlisting the help of judges, attorneys, court personnel, etc. to volunteer to run in the October 8 Hartford Marathon.

Although the first time since the 2002 D.C. Marathon that I’ve run (in the training sense), I have registered for the half-marathon at the persistent urging of my friend and colleague Audrey Felsen. This is a great cause and one to which I hope you can donate.

Click here for my fundraising page. Knowing that there are those willing to help CT Star meet (and hopefully far exceed) it’s $7,500 goal, will definitely serve as encouragement on those days I’d rather do anything then get up early and get in some miles. More than that, however, the moneys will prove invaluable to a population that is too often overlooked, namely individuals committed to getting their lives back on track. It is only with the help of Support Court and you that a greater array of services can be provided. PLEASE DONATE NOW!!!

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I have written before about the Bureau of Prisons’ atrocious performance serving as gatekeeper for “compassionate release” motions under 18 U.S.C. § 3582(c)(1) (and Guideline Section 1B1.13). Sadly, matters have improved little. Over at the Cato Institute, Nat Hentoff shines a light on the Bureau’s continued resistance to affording judges the opportunity to reconsider sentences previously imposed, often decades prior.

Hentoff details the dogged, pro bono efforts of Attorney Ellen Lake and “the case of 94-year-old Carlos Tapia-Ponce, one of the oldest inmates in the Federal Bureau of Prisons (BOP), who is serving a life sentence for managing a warehouse that was the site of what to this day remains the largest cocaine seizure in history.” Having had no success with an application for executive clemency filed as part of the Department of Justice’s clemency initiative, Attorney Lake began pursuing Mr. Tapia-Ponce’s compassionate release. And, when the Director refused to act on (approve or deny) the most recent recommendation that a motion be filed, Attorney Lake sought relief directly from the sentencing court.

Tapia-Ponce had been recommended for a compassionate release/reduction in sentence (CR/RIS) on two separate occasions by two different BOP wardens. The first request was filed in 2013 and denied the following year. The second petition, filed in August 2015, was still pending when Tapia-Ponce’s health deteriorated to the point where he was transferred to a BOP medical center in North Carolina.

Lake’s repeated telephone calls to the BOP’S General Counsel’s office were ignored. Concerned with her client’s failing health, Lake filed a motion asking the U.S. District Court to compel the BOP to rule on Tapia-Ponce’s pending CR/RIS petition.

A day before the scheduled court hearing, and without informing Lake of the decision before she traveled from Oakland to Los Angeles to attend the court appearance, the BOP issued its second denial of Tapia-Ponce’s petition. The government’s official notice of denial confirmed Tapia-Ponce’s many medical problems, including severe degenerative heart disease and prostate cancer.

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Last May, I had the pleasure of presenting via a webinar sponsored by the Association of Federal Defense Attorneys: Understanding the BOP’s 500-Hour Residential Drug Abuse Program (RDAP). That program, which runs more than an hour-and-a-half, is now available on-line.

For those unfamiliar with the AFDA, it regularly offers excellent, topical CLE for federal practitioners. The programs are webinar-based, meaning, among other things, that they can be accessed at one’s leisure from the AFDA’s archive. Individuals interested in joining the AFDA can click here.

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Posted in: RDAP
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The use of solitary confinement by corrections systems, including the Bureau of Prisons, has drawn increasing scrutiny in recent years (see, for example, here and here). In this regard, Mary Buser, a former Assistant Unit Chief in the Mental Health Department on Rikers Island, has just published a book, LOCKDOWN ON RIKERS: Shocking Stories of Abuse and Injustice at New York’s Notorious Jail, that focuses on the practice, among other issues. The following excerpt reflects Ms. Buser’s account of events she witnessed as well as her perspective that most inmates in solitary are non-violent rule breakers often suffering from impulse control disorders, rather than the “worst of the worst.”

Daisy Wilson was my first encounter with someone who might be considered evil, but contrary to the perception that jails are filled with “bad people,” I found few at Daisy’s level of sociopathy. Most are somewhere in the middle, ordinary people who are drug-addicted and may have committed a crime while under the influence of drugs or alcohol, those who’ve made errors in judgment or who’ve acted impulsively or out of desperation. With a little guidance and support, so many in that middle range had the potential to find their way and move on.

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Posted in: SHU
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Earlier this Summer, Charles E. Samuels, Jr. issued a memorandum concerning his intention to retire from the Bureau of Prisons by year’s end, following 27 years of service — 3.5 of which were as Director. The announcement has led to conjecture and commentary regarding who should next helm the agency. In late July, a group of law professors wrote Attorney General Lynch encouraging “a national search focusing on identifying an experienced innovator who has a demonstrated commitment to reform—decarceration, improved conditions of confinement, education and rehabilitation, racial justice, and gender equity. The goal of the search should be a new director who can not only bring about substantial changes at the BOP but also lead American corrections more generally.” In a follow-up piece in the Washington Post, three of the professors expanded on their thinking:

The decision matters a lot. The BOP’s director runs one of the critical bureaucracies of the federal government. It houses more than 200,000 prisoners in more than 120 facilities across the United States. Under the leadership of some of its directors — such as James Bennett, who served from the late 1930s to the 1960s — the BOP set the nation’s benchmark for smart criminal justice administration. Bennett promoted the Youth Corrections Act and vocational and education training, he became president of the American Correctional Association and he led the U.S. delegation to the UN Crime Commission. Bennett led the BOP to the forefront of efforts to help prisoners gain skills to return to their communities and to treat juveniles differently than adults.

Since Bennett’s era, the BOP’s leadership role has eroded. The BOP has imposed unduly harsh conditions on prisoners, failed to prevent sexual abuse, and refused to exercise discretion to house prisoners in community facilities close to their homes. The largest prison system in America needs to do better.

More recently, former Senior OLC Counsel and U.S. Pardon Attorney Margaret Colgate Love has offered a counterpoint to the professors’ proposal, questioning looking outside the agency–an idea she had previously supported–given the Bureau’s design and inherent mandate: Continue reading

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Through the Federal Register, the BOP has announced proposed “revisions to the Residential Drug Abuse Treatment Program (RDAP) regulations in four areas to allow greater inmate participation in the program and positively impact recidivism rates. Specifically, the Bureau proposes to (1) remove the regulatory requirement for RDAP written testing because it is more appropriate to assess an inmate’s progress through clinical evaluation of behavior change (the written test is no longer used in practice); (2) remove existing regulatory provisions which automatically expel inmates who have committed certain acts (e.g., abuse of drugs or alcohol, violence, attempted escape); (3) limit the time frame for review of prior offenses for early release eligibility purposes to ten years before the date of federal imprisonment; and (4) lessen restrictions relating to early release eligibility.”

An .HTML version of the proposed changes can be found here. Public comments, which are due by September 21, 2015, can be submitted here.

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Posted in: RDAP
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Earlier this week, the Second Circuit issued a decision in United States v. Dickerson, vacating a federal drug conspiracy conviction. In so doing, the Court of Appeals affirmed important limitations on the scope of conspiratorial liability.

In simplest terms, a criminal conspiracy is an agreement of two or more persons to engage in unlawful conduct. Individuals found to be part of a conspiracy can be held liable (punished) for any foreseeable act that a conspirator commits in furtherance of the conspiracy. Although conspiracy liability tends to be far-reaching, courts have held that a mere buyer-seller relationship cannot sustain a drug trafficking conspiracy charge.

In United States v. Parker, 554 F.3d 230 (2d Cir. 2009), the Second Circuit spoke to these principles when it found that “[a]s a literal matter, when a buyer purchases illegal drugs from a seller, two persons have agreed to a concerted effort to achieve the unlawful transfer of the drugs from the seller to the buyer. According to the customary definition, that would constitute a conspiracy with the alleged objective of a transfer of drugs.” Concurrently, the Parker court recognized that, standing alone, the purchase and sale of drugs does not amount to a drug distribution conspiracy.

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Over at Fusion.net, Cristina Costantini and Jorge Rivas offer a scathing critique of the Bureau of Prisons’ housing and management of non-U.S. citizens, which has largely been handed over to private prison corporations headed by individuals with ties to the BOP and the Department of Justice.

A Fusion investigation found that without a single vote in Congress, officials across three administrations: created a new classification of federal prisons only for immigrants; decided that private companies would run the facilities; and filled them by changing immigration enforcement practices.[…]  Most of the roughly 23,000 immigrants held each night in CAR prisons have committed immigration infractions — crimes that a decade ago would have resulted in little more than a bus trip back home. And now, some of the very same officials who oversaw agencies that created and fueled the system have gone on to work for the private prison companies that benefited most.

The low-security facilities are often squalid, rife with abuse, and use solitary confinement excessively, according to advocates.

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Criminal defense lawyers are seldom satisfied. Perhaps it’s the law or the rules that govern the work we do, which are not generally defendant-friendly. Or perhaps it’s our natures, to be always seeking more for those we represent. Regardless, one thing about which most federal practitioners in the District of Connecticut can agree is the quality of the bench in front of which we appear. Informed by colleagues from other parts of the country, Connecticut’s defense attorneys share an open, though closely held secret: our judges are among the best in the nation, and our District is one of the most pleasant in which to work.

It is against this backdrop that word came just before Christmas that Assistant Federal Public Defender (AFPD) Sarah Merriam has been appointed our newest Magistrate Judge, replacing the soon-to-retire, well respected Honorable Holly Fitzsimmons. Sarah is a known quantity in many Connecticut legal circles. She clerked both for our former Chief Judge and for a Circuit Judge; she was an associate at a highly regarded criminal defense firm; she was the campaign manager in a successful bid for a Congressional seat; she is active in the CBA’s Federal Practice Section; and she is a member of the Federal Grievance Committee. However, it has been in her role as an AFPD the past seven years that Sarah has arguably had the greatest impact, not only on her office and on behalf of the indigent clients she serves but also on the defense community as a whole.

You see, Sarah is the person everyone turns to with questions. A Yale Law School graduate, Sarah is the proverbial smartest person in the room, though you wouldn’t necessarily know it from speaking with her because she does not put on airs. What you know is that if you call or e-mail Sarah with a question, no matter how difficult or banal, she will get back to you shortly, with a concise, correct answer.

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