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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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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, 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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Last week, Inspector General Michael Horowitz sent a memorandum to the Attorney General and Deputy Attorney General concerning “Top Management and Performance Challenges Facing the Department of Justice.” The first identified challenge? Addressing the Persisting Crisis in the Federal Prison System,” namely the system’s ever escalating cost, which consumes a significant percent of DOJ’s budget, and safety and security issues stemming from chronic overcrowding.

Containing the Cost of the Federal Prison System

The costs to operate and maintain the federal prison system continue to grow, resulting in less funding being available for the Department’s other critical law enforcement missions. Although the size of the federal prison population decreased for the first time since 1980, from 219,298 inmates at the end of FY 2013 to 214,149 inmates at the end of FY 2014, and the Department now projects that the number of inmates will decrease by 10,000 in FY 2016, the downward trend has yet to result in a decrease in federal prison system costs. For example, in FY 2000, the budget for the Federal Bureau of Prisons (BOP) totaled $3.8 billion and accounted for about 18 percent of the Department’s discretionary budget. In comparison, in FY 2014, the BOP’s enacted budget totaled $6.9 billion and accounted for about 25 percent of the Department’s discretionary budget. During this same period, the rate of growth in the BOP’s budget was almost twice the rate of growth of the rest of the Department. The BOP currently has more employees than any other Department component, including the Federal Bureau of Investigation (FBI), and has the second largest budget of any Department component, trailing only the FBI.  The Department’s leadership has acknowledged the dangers the rising costs of the federal prison system present to the Department’s ability to fulfill its mission in other areas. Nevertheless, federal prison spending continues to impact the Department’s ability to make other public safety investments, as the Department’s FY 2015 budget request for the BOP is a 0.5 percent increase from the enacted FY 2014 level.

Our work has identified several funding categories where rising prison costs will present particularly significant challenges in future years. For example, inmate healthcare costs constitute a rapidly growing portion of the federal prison system budget. According to BOP data, the cost for providing healthcare services to inmates increased 55 percent from FY 2006 to FY 2013. The BOP spent over $1 billion on inmate healthcare services in FY 2013, which nearly equaled the entire budget of the U.S. Marshals Service (USMS) or the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Continue reading

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Following news of Attorney General Eric Holder’s intention “to leave the Justice Department as soon as his successor is confirmed” comes a story today from Joe Palazzolo at the Wall Street Journal that next week the Attorney General will announce a significant shift in DOJ policy: “federal prosecutors no longer will ask criminal defendants who plead guilty to waive their right to appeal over bad legal advice.” I wrote about these untenable waivers several years ago:

[…]waiving the right to challenge constitutional and other legal errors concerning the process by which a conviction is obtained is another matter entirely, and thus a cause for concern as it pertains to the appeal and postconviction waiver language that federal prosecutors routinely insert into plea agreements consistent with the U.S. Attorney’s Manual. (See 9 USAM: Criminal Resource Manual 626.) These provisions look to leave defendants with no meaningful chance at postconviction relief regardless of whatever meritorious issue may later present.[…]

An equally obvious problem is that these waivers work to insulate the plea and government and defense counsel’s respective actions from any review. Importantly, ethics bodies in five of six jurisdictions, which have considered the question, have issued opinions excluding ineffective assistance of counsel claims from the scope of permissible postconviction waivers.

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OSHA has announced that its January 2014 investigation of FCI McDowell (WV) found that “correctional officers and other staff” there were exposed to “bloodborne pathogens and other workplace safety and health hazards.” Ten serious violations, that is, those where “there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known,” were identified.  These include McDowell’s failure to:

  • Train employees on the bloodborne pathogens policy and limitations of personal protective equipment.
  • Ensure the person conducting training was knowledgeable about the subject.