If we lived in a perfect world, Merrick Garland would be an Associate Justice of the Supreme Court. When Antonin Scalia passed away on Feb. 13, 2016, President Barack Obama exercised his powers under Article II, Section 2, of the Constitution to nominate Garland to fill the vacancy. However, Senate Majority Leader Mitch McConnell immediately declared the nomination null and void since this was a presidential election year. In conjuring a rule out of thin air, McConnell declared “the American people should have a say in the court’s discretion.”
This was so arbitrary and capricious that it made the infamous Tuck Rule in the 2002 AFC divisional playoff game look like a paragon of transparency. Moreover, McConnell ignored his own rule when President Donald Trump later nominated Amy Coney Barrett to fill the vacancy created when Ruth Bader Ginsburg died. This was truly one of the greatest examples of Congressional hypocrisy as Ginsburg died on Sept. 18, 2020, less than two months before the presidential election. This was much closer to the election than the Garland nomination. Yet, McConnell decided to ignore his own rule much like how the NFL ignored enforcing the Tuck Rule all the thousands of other times a quarterback had fumbled.
The December 16 Memoranda
However, fate sometimes plays an interesting role in life. President Joe Biden nominated Merrick Garland to become Attorney General after his inauguration. A slim majority in the Senate then approved Garland’s nomination. While McConnell may have blocked Garland from taking a seat on the Supreme Court, he may have inadvertently given Garland even more power as a result.
A strong argument can be made that Garland now has more power to shape criminal justice reform as the highest ranking law enforcement officer in the nation than he would have as one of nine Supreme Court justices. We are seeing this happen in real time. On Dec. 16, 2022, Garland issued a pair of memoranda to all federal prosecutors. These simple memoranda have radically reformed how all of the Assistant U.S. Attorneys are to handle criminal justice matters going forward. Let’s take a look at how the Dec. 16 memoranda will alter the criminal justice system, making it more equitable for federal defendants.
Image courtesy of Gage Skidmore via Wikimedia Commons.
Determining Whether to Bring Federal Criminal Charges
The first of the two memoranda covers a number of different topics, including charging, plea deals and sentencing. When it comes to charging a possible defendant, the first memorandum radically departs from Garland’s predecessors in the Trump administration, William Barr and Jeff Sessions. The Trump Attorneys General instructed federal prosecutors to “charge and pursue the most serious, readily provable offense.”
Garland instructs prosecutors that if there is no federal interest in the prosecution or there are non-federal alternatives, then charges should not be pursued. For example, if the alleged crime relates to only a state interest and is being pursued by a state’s attorney or a district attorney, then federal charges should not be pursued. This would end also end the practice of charge-stacking.
In addition, if there is an adequate non-criminal alternative to prosecution, then federal prosecution isn’t warrant. For example, if the SEC is pursuing a civil remedy that will adequately compensate the victims of a securities fraud, while creating diversion to any future violations by the alleged perpetrator. If this is actually followed by the DOJ, it could lead to an end of the piling on phenomena experienced by many federal defendants.
An End to Coercive Indictments
The next instruction may be one of the most radical yet. First, Garland admonishes federal prosecutors not to be influenced by a “person’s race, religion, gender, ethnicity, national origin, or sexual orientation; or political association, activities, or beliefs.” These are all protected classes of people by operation of constitutional law. In addition, prosecutors cannot be guided by personal feelings or their own self-interest. This would seem to be a reaction to complaints that there are too many federal prosecutors looking to make a name for themselves.
Garland also states that “[c]harges may not be filed, nor the option of filing charges raised, simply to exert leverage to induce a plea.” It is not clear if Garland is talking about people being threatened with prosecution themselves. In this practice, prosecutors threaten to pursue additional charges if an individual does not plead guilty. He also could be referring to the common practice of threatening indictments against friends and relatives to coerce a plea. Critics of the DOJ have long cited these practices as going against the interest of justice. Either way, these coercive practices are now effectively being ended by Garland’s work.
Proportionality in Choosing Charges and Sentences
Another major criticism of federal prosecutors has been that they charge defendants with the maximum level of crimes. This was certainly the case under Trump. Further, federal prosecutors have also almost always requested the maximum sentences. This means that they look for the top end of a sentencing guideline. In addition, they often request upward departures from the guidelines formula. The only time they request a downward departure is with a cooperating defendant. Otherwise, federal prosecutors have always looked to super-size the charges and the sentences. Garland’s first memorandum should end this practice.
Garland instructs federal prosecutors to take proportionality into consideration. In other words, the charges and the sentence should be proportional to the defendant’s conduct. This is something that the DOJ had been moving away from, especially with respect to charges that carry a mandatory-minimum sentence. This resulted in relatively low level participants in a crime or fraud getting hammered with long prison sentences. Now, prosecutors have been advised to move away from charging crimes with mandatory minimums. Garland has also instructed prosecutors to consider downward departures if the sentencing guidelines would impose a particularly harsh sentence.
According to the Pew Research Center, more than 90% of federal defendants plead guilty rather than go to trial. While 8% were fortunate to have their charges dismissed, the remaining 2% who decided to go to trial were convicted. Only 320 criminal defendants who went to trial in 2018 were acquitted. With those numbers, it is not surprising that so many defendants choose to plead guilty. Garland has made note of this and instructed federal prosecutors to not use the threat of additional charges to coerce a plea. Hopefully, this will lead to more defendants exercising their constitutional right to a trial as it should lessen the trial penalty. It should also allow defendants to have more leverage in negotiating a plea deal that is more proportional to the defendant’s actual conduct.
The Disparity in Sentencing for Crack and Powder Cocaine
The Anti-Drug Abuse Act of 1986 created a five-year mandatory minimum sentence for possession of five grams of crack cocaine. Meanwhile, an individual would have to possess 500 grams of powder cocaine in order to trigger the five-year mandatory minimum. The result has been a disproportionate number BIPOC people in federal prisons. Crack is more common in that population than powder cocaine, which is more common in white, affluent communities. Science does not support his distinction. Nevertheless Congress put them in place to address the hysteria surrounding crack. The Fair Sentencing Act of 2010 changed the proportion to 18:1, but this is still leading to a disparate impact on poor and minority populations.
While Congress has dithered over the EQUAL Act, which would eliminate the distinction and the mandatory minimum altogether, Garland has taken matters into his own hands. In his second memorandum, he instructs his federal prosecutors to steer clear of charges with mandatory minimums in drug cases. This also applies to plea deals and sentencing: “For example, a prosecutor could ask the grand jury to supersede the indictment with charges that do not carry mandatory minimum sentences; a defendant could plead guilty to a lesser included offense that does not carry the mandatory minimum; or a defendant could waive indictment and plead guilty an information that does not charge the quantity necessary to trigger the mandatory minimum.”
A Brighter Future Tempered by a Political Reality
Hopefully, the federal prosecutors across the country will take note of Merrick Garland’s two memoranda. If so, we could see a number of positive developments. First, we will probably see a reduction in the racial and economic disparity seen in federal drug prosecutions and incarcerations. Second, we could see an end to the practice of threatening charges in order to coerce plea deals. Finally, we may see a federal criminal justice system that seems less arbitrary and capricious.
This hope for a brighter future does have a limitation. There is the chance that a number of AUSAs around the nation may choose to ignore the guidelines set forth by Garland. Bureaucratic pushback is always an issue with the federal government. This may be the case in so-called “red” states.
In addition, the next Attorney General could supersede the reforms contained in Garland’s memoranda. Just as Garland ended a number of practices adopted under Barr, so could a Republican Attorney General go back on the reforms enacted by Garland. Still, these radical reforms created by Garland are a step in the right direction.
Jeff lost his wife, house, law practice, law license and even his freedom when he hit rock bottom after more than a decade of prescription opioid addiction. But his road to recovery led to a path filled with redemption and a future he could never have imagined.
Jeffrey D. Grant, Esq…After an addiction to prescription opioids and serving almost 14 months in Federal prison (2006 – 07) for a white collar crime he committed in 2001 when he was a lawyer, Jeff Grant started his own reentry. He earned a Master of Divinity from Union Theological Seminary in the City of New York, majoring in Social Ethics. After graduating, Jeff was called to serve at an inner city church in Bridgeport, CT as Associate Minister and Director of Prison Ministries. He then co-founded Progressive Prison Ministries, Inc. (Greenwich, CT), the world’s first ministry devoted to serving people prosecuted for white collar crimes and their families. In May 2021, Jeff’s law license was reinstated by the NY Supreme Court. In August 2022, Jeff celebrated 20 years of continuous sobriety.
Connect with Jeff…
• Grant Law Firm: Specializing in white collar crime prosecutions. Email | 212.859.3512 • White Collar Support Group: The world’s first support group devoted to those navigating the white-collar criminal justice system. Email • Life After White Collar Crime – as featured in the New Yorker • The Criminal Insider Podcast: with Babz Rawls Ivy and Jeff Grant is broadcast live at 9am ET on the first and third Friday of each month.
Credits:
Host: Kristine Bunch, Indiana exoneree and Outreach Coordinator for Interrogating Justice and How to Justice Producer: Tammy Alexander, creator and co-host of the Snow Files Podcast Announcer: Eric Brenner, actor and voice over artist
How to Justice is a non-profit group that seeks to raise up justice-impacted people. Its goal? Provide easy-to-read answers to your questions about your rights before, during and after prison.
Interrogating Justice is a nonprofit, nonpartisan think tank. Our team of attorneys, advocates and allies take on some of the biggest legal, social and ethical justice-reform issues today. Our goal is simple: help shed light on the obstacles preventing our justice system from being just.
Peter Tomasek is a friend of our ministry and is the Editor-in-Chief for Interrogating Justice. He was the October speaker in our White Collar Week Tuesday Speaker Series.
On Sunday, Nov. 13, 2022, a federal prisoner at the minimum-security satellite camp at USP Tucson tried to murder his wife in the camp’s visiting room. Thankfully, the pistol Jaime had didn’t go off any of the times he pulled the trigger. Jaime apparently used the wrong bullet (.25 caliber ammo in a .22 pistol). Instead of killing Ismaela, his wife, the bullets fell to the floor.
The day after the attempted shooting, on Nov. 14, 2022, the Associated Press published this story on the incident, describing what happened after the attempted shooting as follows: “Officials said the inmate was restrained and the firearm was seized.” And the day after that, on Nov. 15, 2022, the AP published this follow-up report that provided the public with the first inside perspective on what happened two days earlier. As is almost always the case, that inside perspective came exclusively from the Bureau of Prisons.
Collette Peters, the BOP’s new Director, told the AP that it “was a ‘terrifying incident to have had happened.’ ” But, the AP’s initial story said, “Peters has vowed to bring new transparency to an agency that has long been a haven of secrecy and coverups.”
It’s now been more than three months since the BOP narrowly avoided having a room filled with women, children, a senior and a few minimum security “campers” watch as a husband executed his wife. How has the new BOP Director’s transparency vow held up over the past 102 days? If you ask the people who were in that visiting room or just outside of it on that terrifying Sunday morning, the answer is a clear one: Not good. Not good at all.
The BOP’s camps aren’t like the prisons you see on TV. There are “no bars” and “no barbed wire.” And when it comes to security, everything is “lax.”
Most of the people reading this probably haven’t been to one of the BOP’s minimum-security satellite camps. So, when I talk about a prison, you’re imagining something like in The Shawshank Redemption. That’s not what these camps are like.
As one woman who regularly visited the satellite camp at USP Tucson told me, it’s more like “a dorm room.” “There’s no bars, no barbed wire,” she said. “It really is time out for old men. It doesn’t look like a prison.”
And when it comes to visitation, another person who served time in another camp told me, the BOP is “pretty lax.” He said that his loved one “could have passed [him] anything” and “could have easily slipped [him] a weapon, a knife, a gun” when she visited. BOP staff, he said, “would have had no clue.”
In fact, at his camp, some of the BOP staff didn’t even bother searching the campers. “We were supposed to be totally strip searched going in … you have to bend over, spread your … the whole deal, and then you get dressed, and they let you do your visit. And then when you’re done with your visit, they’re supposed to do it again,” he explained. But it rarely happened.
Things were no different at USP Tucson. According to one camper, some campers got light pat-downs; others got no pat-down at all. And according to the loved ones I spoke with who visited regularly, there’s no security at all for them. “Through the security, I’ve never been checked. I’ve never been searched. There’s not metal detectors,” one woman told me. “It’s like a hospital lobby, I guess is the best way to put it.”
On Nov. 13, 2022, an adequate pat-down might have made all the difference.
Image courtesy of Andrew Schultz via Unsplash.
Visitors at USP Tucson’s camp on Nov. 13, 2022, went from trying to decide whether to sit inside or on the patio to running for their lives in a matter of seconds.
Considering how “lax” these security protocols are, it’s not particularly surprising that someone could end up with a gun pointed at their head during a visit. What is surprising, though, is how ill equipped a federal agency that costs taxpayers around $8 billion per year was to deal with it.
According to those in the visiting room on Nov. 13, 2022, Jaime came in and met with Ismaela privately before their two teenage kids were supposed to join them. During their conversation, Jaime got up and went to the restroom. As he exited the restroom and his kids signed the check-in list in the waiting area, all hell broke lose.
Jaime pulled a .22 pistol from his waistband and walked up to his wife. The BOP staff did nothing. Jaime raised the gun and pointed it directly at Ismaela’s head. The BOP staff did nothing. Ismaela begged for her life. Their kids begged for help. The other visitors and campers screamed for help and ran for their lives. Still, the BOP staff did nothing.
Over the course of the next few minutes, Jaime, who had at least one other clip and a suicide note with him that day, pulled the trigger. Then he pulled it again. And again. And again. Luckily, the bullets fell to the ground.
With a gun pointed at her head, at her chest and in her side during the altercation, Ismaela fought for her life. She pushed and shoved Jaime the best that she could. She tried to crawl toward a door every chance she had. And she begged and begged and begged for help. The BOP staff member in the room, referred to as “Officer Rancinos” by the people I talked to, ran out of the room, closed the door and literally looked the other way.
As Jaime began striking his wife with the pistol and his fists, BOP staff waited outside the room, telling the kids that there was nothing they could do.
As the struggle continued, Jaime briefly gave up on shooting his wife and began beating her with the gun and his fists instead. Their son and daughter begged BOP staff over and over again to go into the room and do something. Still, BOP staff did nothing. One person I talked to said that most of the officers actually left the building entirely until backup arrived.
Ismaela and Jaime’s teenage son tried to come in the room to save his mom. Jaime pointed the gun at him instead and told him to leave: “Get the fuck out of here!”
As she watched her son flee for his own safety, Ismaela kept begging and begging for someone to come help. As Jaime had her down on the floor with the gun to her head once again, she begged him to let her live. “Forgive me, Jaime. Forgive me. Please don’t do this, Jaime. Please don’t do this in front of my kids. Don’t do this in front of the kids. Please don’t kill me in front of them. Please don’t do it.”
One of the other women there that I spoke with got emotional as she told me about Ismaela’s screams. “Everything seemed fine, and then … there were some sounds coming from inside [the visiting room], and I don’t know how to describe it, but when you hear something and you think, ugh, that’s … that’s not right, that doesn’t sound right,” she told me. “You could hear this woman’s … scream that I will never forget.”
The officers stayed outside. But one man, another camper who was in the room to photograph the campers and their loved ones that day, had the courage to do something.
The camp photographer risked his life to save Ismaela, her kids and likely others inside the visiting room while BOP staff did almost nothing.
Jaime’s wife might be dead today if it wasn’t for the camp photographer. As time passed, Ismaela and Jaime’s kids were still pleading with BOP staff to do something to save their mom. “Please save my mom … help her,” their teenage son begged the officer closest to the door.
The photographer, who witnesses primarily referred to as “Vargas,” heard Ismaela’s screams from inside the room as well as the children’s pleas and couldn’t simply stand there and wait. So Vargas said “Fuck it!” and went in.
He ran in the room, tackled Jaime to the floor and tried to hold him off of Ismaela as best he could. Jaime put the gun to Vargas’s head as the struggle ensued. But together, Ismaela and Vargas were able to pry the gun out of Jaime’s hands and kick it across the floor.
To his credit, after Ismaela and Vargas were able to kick the gun away, another officer came in and picked it up. That was more help than Ismaela and Vargas got from Officer Racinos, who witnesses said practically froze before running out of the room. According to multiple people that I spoke with, Officer Racinos may have called for backup and managed to press the “deuces,” i.e., facility’s version of a panic button. But as soon as the visiting room’s doors opened, he was the first one out the door.
After Ismaela and Vargas disarmed Jaime, Vargas found himself on the end of the officers’ loaded AR-15s and handguns. Thankfully, the officer who picked up Jaime’s gun made sure his colleagues knew Vargas was “good.” The guns were then lowered.
One of the witnesses I spoke to said that when “backup” finally arrived, they were “ready for war.” By that point, though, Ismaela (with Vargas’s help) had already saved herself.
BOP staff eventually got Ismaela away from Jaime and out of the visiting room. Then they handcuffed her and her daughter and interrogated them.
Incredibly, Ismaela’s suffering didn’t end after the attack. BOP staff eventually took her out to the parking lot. But they didn’t let her leave or provide any medical treatment for her injuries. Instead, they handcuffed her and her crying daughter and accused them of giving Jaime the gun he used to try to kill them. BOP staff wanted to handcuff her son, too. But his mom pleaded with the officers not to because he is a minor and had fainted.
The other visitors stuck in the parking lot were eventually allowed to comfort the traumatized family. The AP’s initial reporting stated that “no one was injured.” But one witness I spoke with told me that Ismaela’s face was injured and “bloody.” Numerous witnesses confirmed that the son fainted. Yet BOP staff did nothing to help. Instead, it was another one of the visitors who went to get a bottle of water out of her car for them.
BOP staff was, however, courteous enough to ask if any of them had been shot. But they couldn’t even ask that question in a humane way. The guard asked us “if we had any holes in us,” one woman told me. “That was a weird question.”
Eventually, two buses arrived. BOP staff loaded the campers, approximately 90 men who had been handcuffed behind their back with zip ties on the ground in the hot Arizona sun for more than an hour, and took them to one of two final destinations: a cell in the maximum-security facility at USP Tucson or, for the campers in or near the visiting room that Sunday, solitary confinement (aka the SHU). And, for most of them, that’s where they’ve been ever since.
Image courtesy of Tony Webster via Wikimedia Commons.
Officer Racinos got paid time off for the “stress” he endured. The hero, the victim and the witnesses got nothing — and, sometimes, worse than nothing.
Unlike Jaime’s wife, her children and the photographer who risked his life to help, Officer Racinos, the officer who ran out of the room and did practically nothing, has been receiving nonstop help from the BOP since that day. He immediately enjoyed paid time off for the “stress” he endured during the incident. And he hasn’t faced any accountability for his actions (or lack thereof). Neither has anyone else with the BOP.
Warden Gutierrez and Camp Administrator Chaffey haven’t faced any accountability either. The closest thing to accountability for these two was a decision from the BOP at either the regional or national level to thwart their efforts to have these campers scattered in facilities all over the country and away from their loved ones.
A lot of the people I talked to think that’s why Warden Gutierrez and Camp Administrator Chaffey have kept the men in the maximum-security facility for months on end: the embarrassment they suffered for allowing something like this to happen at their camp and not getting their way afterward.
The campers, on the other hand, have spent more than three months in USP Tucson’s maximum-security cells or, even worse, the SHU. They haven’t received any help. Their loved ones, including the woman who was almost murdered and her children, haven’t received any help either (aside from, I guess, being asked if they “had any holes”). BOP staff couldn’t even manage a phone call.
If anything, the campers have been punished. These punishments have came in a variety of forms, ranging from temporarily cutting off communication to the outside world to feeding them food that’s been sitting out for too long.
Communication
Perhaps the most meaningful example of the punishment the campers who witnessed the incident have received involves communication. At first, BOP staff promised the campers and their loved ones that they’d be able to talk to each other to make sure they were okay later that day on Nov. 13, 2022. As it turns out, the BOP didn’t let the men call or email their wives or children for multiple weeks after this took place. And when their wives called the facility themselves, the message they got was as sarcastic as it was useless: “He’s still in the state, so that’s good news for you.”
In a similar bait-and-switch fashion, the BOP also allowed the men to write letters to their loved ones shortly after the incident. But the letters were never sent and were eventually returned. According to one person I spoke with, most officers legitimately believed they were going to allow the letters to be mailed. But, this person said, Administrator Chaffey refused to provide stamps.
Christmas Bags
Maybe a better example involves comparing their treatment to the treatment of the maximum-security detainees assigned to the same facility. On Christmas, people in BOP custody usually receive bags with, as one person described them to me, “candy, junk food, different things in there.” In 2022, however, those bags only went to the maximum-security detainees at USP Tucson, not the men from the satellite camp.
In the scheme of things, the men and their loved ones don’t really care about the candy or junk food. But the disparity in who received those bags was a tangible reminder about how much better the maximum-security detainees have been treated than the minimum-security ones who don’t even belong in that facility. Whether it’s the quality of food they receive or the time they get outside of their cells, it’s the campers, not their maximum-security counterparts, who are punished most.
Clothing and Shoes
The punishment extended all the way to the men’s clothes and shoes. Two of the men I’ve seen messages from complained that their belongings — their clothes, their shoes and even things like wedding rings, books and commissary food — were thrown out. They’ve been stuck in shower sandals for 100 days straight even though they were only permitted a shower or two (or eventually three) per week for the first month.
Old, Stale Food
Then there is access to commissary. The campers have finally been allowed some access to commissary to buy things like medicine and shampoo. But multiple people told me that they’re not allowed to purchase food from commissary. This is especially troubling for these men because they aren’t able to eat on a regular basis.
One woman told me about her loved one regularly having to choose between not eating and eating old, stale food because of how late the meals come to the campers. Another told me that the best thing her loved one has eaten in three months was a stale peanut butter and jelly sandwich. After all, she said, it beats (possibly spoiled) bologna.
Another person I spoke with told me that the BOP has refused to accommodate food allergies for these men since the move. Because peanut butter and jelly sandwiches apparently remain a go-to meal for the campers in the maximum-security facility, this means those with peanut allergies simply cannot eat.
Several of the wives and family members I spoke with also expressed concern over the health and safety of their loved ones inside. Many of the men have lost a significant amount of weight since they were moved from the camp. Some have lost as much as 40 pounds.
Additionally, unlike minimum-security satellite camps, maximum-security prisons can be, frankly, dangerous. While these men are used to the ordinarily liberal protocols common at minimum-security satellite camps, they’re now becoming more familiar with facility-wide lockdowns because of violence between detainees, intentional damage to plumbing and more at maximum-security facilities like USP Tucson.
Sunlight
Maybe the clearest example of the punishment is the simplest one to describe: None of these men have been outside since Nov. 13, 2022. None of them. Not for even an hour.
Retaliation
All of the people I spoke with also have the same level of fear. Everyone is scared that they or their loved ones will be punished for talking. They’ve tried reaching out to major news outlets. But none have been willing to expand on the original BOP-friendly version of events already out there. Jaime’s wife even publicly commented on this story in Forbes. No one reached out.
As more efforts are made to tell their story, the fears the campers and their loved ones have are materializing. One woman I spoke with told me that she heard that the BOP had already moved someone back to the SHU “because they [Warden Gutierrez and Administrator Chaffey] found out what he was doing.” Obviously, this is only a rumor. But the rumor itself has scared others into silence.
Unable to find anyone willing to listen in the media, some loved ones and campers turned to elected officials. Multiple people I spoke with reached out to elected officials in Arizona and around the country, including some with credibility when it comes to criminal justice and prison reform. Some said they’d need someone else to cover the story first. Others didn’t respond. And one couldn’t do anything without the woman’s name (and, absurdly, her social security number).
Ultimately, most of the people I spoke with didn’t want me to use their name. The ones that were okay with it didn’t want people to know I talked to them. For the most part, I obliged. The reality is that everyone I’ve spoken to could have been killed on Nov. 13, 2022. Sheer dumb luck, a brave wife and a camp photographer saved countless lives. The least I can do is honor their anonymity wishes.
Image courtesy of U.S. Department of Transportation via Wikimedia Commons.
Three months later, the BOP has Jaime in a medium-security facility while the other campers are stuck in a maximum-security one.
Unbelievably, Jaime made out better than the people he might have killed. As of the date of this story, Jaime is detained in a medium-security facility. Most of the campers he could have killed, on the other hand, are still in a maximum-security facility or, even worse, the SHU.
One camper, luckily, is not: the camp photographer. Originally, the BOP put him in the SHU with the rest of the campers who were in the visiting room on Nov. 13, 2022. Eventually, he, like the others, moved to regular maximum-security cells where most of them have stayed for three and a half months with no end in sight. Last week, though, the camp photographer was released to home confinement.
Housing someone who managed to gain access to a gun and bullets and used them to try to shoot his wife in a less secure facility than the people he could have shot might seem backwards. But it’s ordinary business for the BOP. As the AP indicated in its initial article on this incident, “[t]he Bureau of Prisons has been plagued by chronic mismanagement, misconduct and a severe staffing crisis.”
Yet when it comes to oversight, accountability for the BOP is virtually impossible to find. Take the First Step Act’s Time Credits Program as an example. The BOP completely botched the phase-in period and has been playing catch up ever since. Yet pushback from federal courts is almost nonexistent. This lack of accountability has led to organizations like FAMM calling on Congress to implement independent oversight over the troubled agency.
According to the agency’s website, the BOP “is an excellent steward of public funds.” Why can’t $8 billion a year do a little better than this?
The craziest thing about this entire situation is how lucky everyone was. Jaime could have killed his wife. And everyone else in or near that visiting room. I have no idea if that was his plan. But it could have been. But a little sheer dumb luck, a strong mom and a brave camper, not the BOP, stopped him.
Yet that’s not even close to the story the BOP told us despite, to use the AP’s phrasing, the agency’s “vow[] to bring new transparency to an agency that has long been a haven of secrecy and coverups.” Instead, thanks in part to the AP’s insistence on using the passive voice in situations like this, we were told an unremarkable story with no credit and no blame: “Officials said the inmate was restrained after the incident and the firearm was seized.”
The BOP’s budget was a whopping “$7,849.4 million” in 2022. (If you’re thinking that referring to $7.8 billion as “$7,800 million” seems weird, you’re not alone.) For 2023, the BOP asked for a $327.7 million raise, bumping that final number up to just over $8.1 billion or, as the BOP puts it, “$8,177.1 million” for the year. That’s a lot.
Perhaps some of that $8.1 billion can go toward camper and visitor security. That way, the next time this happens, there’s a better procedure in place than counting on sheer dumb luck or hoping the victim and a camper can save the day. Perhaps some of that $8.1 billion can also go to Ismaela and her children, all of whom continue to suffer as a result of what the BOP allowed to happen that Sunday morning back in November.
About the Author
Peter J. Tomasek is an attorney and writer for Interrogating Justice, a 501(c)(3) nonprofit organization that aims to help more Americans understand how the justice system is falling short through legal analyses and investigative reporting by attorneys, advocates and allies. Peter’s work focuses on holding governmental actors, including the Bureau of Prisons, judges, prosecutors and law enforcement, accountable. You can read his most recent work on the BOP’s implementation of the First Step Act Time Credits Program here. You can reach Peter at [email protected].
We are honored to have Peter Tomasek, Esq., of Interrogating Justice, as the next speaker in our White Collar Support Group Tuesday Speaker Series.
We were honored to have Peter Tomasek as the next speaker in our White Collar Support Group Tuesday Speaker Series. Peter spoke and answered questions about Early Release, First Step Act Credits, the CARES Act, the Clean Slate Act, and what’s really going on at the BOP and DOJ.
Peter J. Tomasek is an attorney and a writer from Durham, North Carolina. In his current role as Editor-in-Chief for Interrogating Justice and How to Justice, Peter focuses on the BOP’s implementation of the First Step Act’s Time Credits Program, “ban the box” laws and second-chance hiring, and a variety of other topics impacting the U.S. criminal justice system.
Prior to helping start Interrogating Justice and How to Justice, Peter practiced law in Michigan and North Carolina. Among other experiences, Peter spent time with a medium-sized law firm in Metro Detroit, representing attorneys and judges in legal-malpractice and professional-liability lawsuits in state and federal courts across the Midwest.
Huge thanks to our friends at Interrogating Justice for permission to reprint and link.
The Unexpected Impact of Dobbs on Criminal Justice: Part I, by Fred Aaron
A legal precedent is something that has the force of settled law. It is a court decision that has gained such wide-ranging acceptance that the legal community views it as foundational. That is why it was a major shock when the Supreme Court in Dobbs v Jackson Women’s Health Organization not only deemed the Mississippi law limiting women’s access to abortion constitutional but also overturned the 50-year precedent established in Roe v Wade, allowing states to now outlaw abortion completely in the process.
In fact, 14 states have laws banning or restricting abortions that immediately came into effect as soon as Roe v Wade was overturned. These so-called trigger provisions stripped women of their abortion rights in the blink of an eye. While the impact on women’s healthcare from the Dobbs ruling has been well known, what has not been reported is the far-reaching implications of Dobbs for justice-impacted people and the effect of Dobbs on the criminal justice system.
What is Precedent?
Now that the Supreme Court has overturned Roe v Wade by the slimmest of margins (5-4 with Chief Justice John Roberts concurring only in allowing the Mississippi law to stand but dissenting on the issue of overturning Roe), what is the future of other legal precedents? Keep in mind that four of the five justices in question stated under oath during their Senate confirmation hearings that Roe v Wade remained settled law, while noting the doctrine of stare decisis that gives significant weight to prior Supreme Court decisions.
For example, Justice Samuel Alito, who wrote the opinion in Dobbs, stated during his confirmation that “Roe v Wade is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time.” Justice Alito wasn’t alone in these sentiments.
Similarly, Justice Neil Gorsuch made the strong point that “Roe v Wade, decided in 1973 is a precedent of the United States Supreme Court. It has been reaffirmed. A good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”
Justice Brett Kavanaugh made a similar comment, describing Roe v Wade as “settled as a precedent of the Supreme Court, entitled to respect under principles of stare decisis.”
Justice Amy Coney Barrett made analogous comments as well, while noting that Roe is not a super-precedent like Marbury v Madison, which dates from the earliest days of the U.S.
Four of the five justices who voted to overturn Roe v. Wade called the case “important precedent,” “precedent” that has been “reaffirmed,” “settled as precedent” and “entitled to respect under principles of stare decisis.”
The Unexpected Impact of Dobbs On Criminal Justice: Part II, by Fred Aaron
My wife and I welcomed our first child into the world 19 years ago. It was a beautiful, sunny Friday afternoon in New York City, and my wife and son spent their first night together in a room with another first-time mother and her child. In fact, all the new mothers at New York Hospital were sharing rooms that September weekend, except for two.
The first was a wealthy woman who was in a huge, private suite at the end of the hall bedecked with enough flowers to send everyone to the allergy ward. The other mother in a private room really wasn’t alone. A member of the NYPD stood guard outside her room, with another police officer stationed inside. The new mother had her right wrist handcuffed to her bed and had to request the police officer to release her if she needed to use the bathroom. She was incarcerated at one of the many detention centers scattered around the five boroughs of New York.
The reality of that woman is lived by every pregnant person currently incarcerated in this country. And the ruling in Dobbs v Jackson Women’s Health Organization makes that already-bad situation much worse. Healthcare for incarcerated people is already something that is less than optimal. Dobbs promises to make neonatal care even worse, while limiting the right to terminate any unwanted or risky pregnancy.
Pregnancy has always been an issue inside of jails and prisons.
Prisons are and always have been segregated based on gender. Officials house biological women in different facilities from biological men, with different states and the federal government treating transgender, non-binary and intersex individuals differently depending on where they’re at.
For example, The Transgender Respect, Agency, and Dignity Act (SB 132) requires that the California Department of Corrections and Rehabilitation house transgender, non-binary and intersex individuals according to their gender identity. CDCR has identified 1,616 individuals who fit this profile as currently incarcerated in California. This is why many people would assume that pregnancy is not an issue with incarcerated people.
The reality is that an average of 58,000 pregnant individuals are admitted into jails, prisons and detention centers every year, according to a study by the Prison Policy Initiative. These individuals require specialized healthcare that is often lacking inside of correctional institutions. Pregnant inmates are more likely to miscarry, with the same study finding that miscarriage rates are 19% to 22% depending on the state, far exceeding the national average.
Fred Aaron is the Grant Writer for Interrogating Justice, as well as a contributing writer for Interrogating Justice and How to Justice. Becoming a justice-impacted person wasn’t on Fred’s bucket list, but a series of bad decisions and errors in judgment led him to a 14-month bid at FCI Otisville. Prior to that, Fred had practiced law in New York State for over 25 years, including conducting a number of federal and state trials, and assisting nonprofits obtain IRS certification. Fred’s experience with the criminal justice system has given him insights into the need for reform and better opportunities for justice-impacted people. While at Otisville, he completed half of his course work for an MBA in Leadership from Adams State University, which he completed upon release. This gave him firsthand experience with the barriers and hurdles inmates must overcome in order to exercise their right to college and post-graduate classes. Before coming to Interrogating Justice, he worked as a management consultant for a real estate development company and content director for an on-line life simulation game. He also writes freelance articles for the automotive industry. A native New Yorker, Fred currently lives on Long Island with his wife and college aged son and daughter. He holds a Juris Doctor from NYU Law School where he served as the Executive Editor of the NYU Review of Law & Social Change. Fred also has a BA with Honors in Politics from Brandeis University, where he was one of the leaders of WBRS-FM, the college radio station. In his free time, Fred is a social media enthusiast, pop culture junkie, diehard Mets and Rangers fan, and lifelong amateur guitarist. Fred can be reached at [email protected].
Tom Gage is a member of our White Collar Support Group that meets on Zoom on Monday evenings. He is a gifted writer, as his articles for Interrogating Justice show (links below). Enjoy! – Jeff Grant
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Tom Gage is a freelance writer, editor, proofreader and tee-shirt designer. He holds a B.A. Degree in English and a Juris Doctorate from the University of New Hampshire. Tom served as a Representative in the New Hampshire General Court (Legislature) from 1980-90 representing the towns of Exeter and Newfields. He was an attorney-at-law and real estate developer in the Seacoast of New Hampshire for nearly thirty years. In 2018, Tom was prosecuted for a financial crime arising from a botched refinance of his family home. Convicted under a statute he helped to write, Tom served 20 months in the New Hampshire state prison system. He was paroled to Stamford, Connecticut in 2020. When he is not writing, editing or designing, Tom works on the I-130 immigration petitions for his wife and stepson, volunteers with a local organization which resettles Afghan immigrants and watches TV game shows.
Huge thanks to our friends at Interrogating Justice for permission to reprint and link.
Who’s Guarding The House? A Bizarre Prison Guard Story, by Tom Gage:
“There’s a bizarre story out of Alabama that has flashed across the news in the last few days. Capital murder suspect Casey Cole White and the prison guard who was transporting him to a court-ordered mental health appointment at the Lauderdale County courthouse vanished. The officer was not just any prison guard. She is Vicky White (no relation), the Assistant Director of Corrections in the Lauderdale County Sheriff’s Department, and was in her last day on the job…”
Does The SHU Fit? A Note About Solitary Confinement, by Tom Gage
“Aside from the death penalty, there is likely no more contentious issue in the area of prison reform than the abolition or remaking of solitary confinement. The term itself feels so odious that most jurisdictions have replaced it. They use terms such “punitive segregation,” “administrative segregation,” “isolation,” “secure housing” or “special housing” instead. Today, the debate about solitary confinement, its use and its detriments lies at the heart of any discussion about incarceration itself…”
So, Why Do We Call A Penitentiary A Penitentiary? by Tom Gage
“A couple of years ago, I was “housed” at the Northern New Hampshire Correctional Facility in Berlin, New Hampshire (also known as the Berlin State Prison and “Berleasy”). While there, I had a “homework” assignment for my counseling group: to talk about how prison was improving me…”
It’s Not The Ritz: Attitudes About Prison Conditions In America, by Tom Gage
“On May 17, a judge remanded Young Thug, a rap artist from Georgia, whose legal name is Jeffrey Williams, to pretrial custody after a court hearing in Atlanta, Georgia. Allegedly, the artist co-founded the “Young Slime Life” gang, which has allegedly been responsible for numerous crimes, including possibly 50 or so murders, in the area. The judge found him to be flight risk and placed him in pretrial detention while he considered the bond he will order…”
