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May 10, 2022

FAMM urges feds to seek sentence reductions for all incarcerated persons subject to sexual abuse at Dublin FCI

As detailed in this local article from a few months ago, numerous staffers at the federal prison in California have been criminally charged with sexually abusing numerous incarcerated women.  (As press pieces have noted, Dublin FCI "had become known by the nickname 'Rape Club' due to rampant sexual abuse" with dozens of employees investigated for wrong-doing.)  Brining a sentencing angle to this sad story, yesterday FAMM sent this letter to Deputy Attorney General Lisa Monaco urging "the BOP to seek, and U.S. Attorneys to file, reduction of sentence motions for every woman whose allegations have been found credible."

I recommend the two-page FAMM letter in full, and here is an excerpt:

The Bureau of Prisons can refer compassionate release motions to the U.S. Attorney for filing when it finds extraordinary and compelling reasons warrant a reduction in sentence. While the policy statement describing extraordinary and compelling reasons does not include sexual abuse by corrections officials, it does provide the BOP the power to identify “other reasons,” that alone or in combination with recognized criteria merit compassionate release.

Sexual assault by BOP personnel of incarcerated women is an exceptional abuse of trust.  The trauma resulting from such victimization is without doubt an extraordinary and compelling reason justifying consideration for compassionate release. None of the victims was sentenced to endure such violence. It has made their incarceration degrading and terrifying.  The victims could not protect themselves or flee their abusers.  Many struggle to speak about their experience for fear of retaliation.  Sexual abuse survivors bear the emotional scars of their violation for years. Mental health care in the federal system is inadequate to help them begin to heal....

A motion filed by the U.S. Attorney on behalf of the Bureau of Prisons is the best opportunity to secure emotional and physical safety for women who endured sexual abuse by BOP personnel.  A Department-sanctioned motion carries the weight of the Department’s imprimatur, something a defendant-filed motion does not.  But, more than that, a motion filed by the United States would convey the gravity of the harm these women endured and signal your commitment to make it right.

May 10, 2022 at 11:47 AM | Permalink


"FAMM sent this letter to Deputy Attorney General Lisa Monaco urging 'the BOP to seek, and U.S. Attorneys to file, reduction of sentence motions for every woman whose allegations have been found credible.'"

It makes no difference if they're credible. It only makes a difference if they're true.

Posted by: Bill Otis | May 10, 2022 4:54:55 PM

When I was in the BOP circa, there was a Catholic priest Chaplain at an FCI who got inmates drunk and had homosexual sex with them, even though they were not gay. So far as I am aware, he never got caught and was not fired or prosecuted, but he did incredible psychological and emotional damage to many men. He is probably dead by now, from old age.

Posted by: Jim Gormley | May 10, 2022 7:05:47 PM

Bill, are you saying that you agree with FAMM that, if it is true a woman was sexually abused by a staff member at Dublin FCI, then DOJ ought to file a motion for a sentence reduction for that woman?

Posted by: Doug B. | May 10, 2022 9:03:04 PM

Doug --

Once again, I'm "saying" only what I write, neither more nor less. However, I will now venture beyond that to say that whether DOJ should file a motion depends on the facts of the prisoner's crime, the original sentence, the prisoner's record while incarcerated, rehab prospects, and the nature and extent of the sexual abuse to which she was subjected. Ordinarily, sexual abuse should result in a money judgment for the victim, not a sentence reduction. But there could be exceptional circumstances in individual cases.

Posted by: Bill Otis | May 10, 2022 10:33:42 PM

How would we come up with a fair and principled means of deciding how much each sentence should be reduced? I support some version of this idea, but I don't think a categorical position of release for all those affected would be consistent with either the goals of sentencing or the statutory mandate to consider the 3553a factors.

I also think there are some administrability challenges here -- I think the standard for reduction should ideally be more likely than not. But that may be tough to internally adjudicate in some cases because some of the abusers have no incentive to cooperate with BOP. Where the public interest is concerned, I do not think it appropriate to find in favor of alleged victims in a sentence reduction context predominately because a third party not under the public's control will not cooperate. Of course, if DOJ is willing to prosecute or BOP willing to fire over a specific incident, that is obviously enough for me. But what of other allegations? I think FAMM is trying to get at a similar issue with "credible" -- but in a way that errs on the side of granting a sentence reduction.

Posted by: Jason | May 10, 2022 10:55:36 PM

@Bill: Would the practical unavailability of a money judgment constitute "exceptional circumstances in individual cases" in your view? Presumably the perpetuators were not acting in the scope of their employment so the government isn't likely to so certify under the FTCA. And most corrections officers don't have money, especially after they get fired or imprisoned for a sex offense. So unless the facts of a specific case would support a tort covered by the FTCA, the victims may be unable to receive anything here.

I'd add that the purpose of release or reduction here would not be entirely compensatory. Incarcerated people are a vulnerable population, and a fear of being sexually assaulted by officers isn't part of the sentence. So being incarcerated is likely triggering continued trauma for the victims and that specific trauma would be fairly attributable to BOP from a moral (if not FTCA) perspective.

Posted by: Jason | May 11, 2022 6:27:17 AM

Jason, I appreciate your worries, though realize we increases sentences all the time when "a third party not under the public's control will not cooperate." Sometimes government officials try to convince those folks --- whether co-conspirators or relatives or even victims --- to cooperate by threatening prosecution or highlighting various possible benefits of cooperation. Indeed, because criminals are often offered immunity or sentencing discounts for providing information that is then used to increases sentences, why not offer the prison staff here immunity and/or reduced sentences in order to testify concerning the sexual misconduct that could serve as the factual foundation for these women to pursue sentence reductions?

Bill, I sense we concur that a totality of relevant circumstances should impact whether and how victims of sexual abuse in prison at the hands of prison officials ought to get sentence reductions. (In general, I do not think a significant mandatory minimum sentencing reduction based on only one factor makes any more sense than a significant mandatory minimum sentencing enhancement based on only one factor.) That said, I do think 3553(a)(2)(A) and 3553(a)(2)(D) --- as well as 3553(a)(1) and 3553(a)(3) --- all would seem to provide a very sound foundation for a sentence reduction here under the right factual circumstances.

Posted by: Doug B. | May 11, 2022 8:36:59 AM

Jason --

"Would the practical unavailability of a money judgment constitute 'exceptional circumstances in individual cases' in your view?"

No, for the same reason that the (frequent) inability to collect a money judgment is a routine tort case is not thought to allow some more exotic remedy. As you note in your next two sentences, prison guards are not wealthy to say the least ("Presumably the perpetuators were not acting in the scope of their employment so the government isn't likely to so certify under the FTCA. And most corrections officers don't have money, especially after they get fired or imprisoned for a sex offense.").

If something is typical (here, the lack of rich prison guards), then by definition it cannot be exceptional.

FAMM is just looking here for the same thing it's always looking for, to wit, some reason that criminals should have as close to zero accountability as it can come up with. If it isn't abuse, it's COVID. If it isn't COVID, it's overcrowding. If it isn't overcrowding, it's lack of rehab programs. If it isn't lack of rehab programs, it's the ubiquitous standby -- that Amerika is a punitive cesspool.

There are people who buy this sort of thing. I'm not one of them. I'm not looking principally to reduce incarceration. I'm looking principally to reduce crime. Individuals can reduce incarceration all by themselves -- just get a normal job, lead a normal life, don't steal, and don't use violence. This is not exactly asking people to go out and win the Nobel Prize.

Posted by: Bill Otis | May 11, 2022 8:53:19 AM

In June 2006, a prison guard and a DOJ investigator with the Office of the Inspector General were killed at FCI - Tallahassee, Florida in a shootout that erupted when F.B.I. agents went to the prison to arrest 6 BOP guards who were charged with having sex with women inmates, in exchange for cash, alcohol and marijuana. We might examine this president to see if the DOJ ever filed any Motions for a reduction in sentence for any of the women inmates who were sexually abused at FCI - Tallahassee. I am fairly certain that the DOJ filed no such motion in the aftermath of those sexual abuse cases, but please correct me if I am wrong.

Posted by: Jim Gormley | May 11, 2022 9:02:14 AM

Doug, I could get on board with immunity once DOJ has reviewed the allegation and decided not to pursue a criminal case. I do not need to reach the question of reduced sentences as a carrot -- if DOJ has decided the evidence is strong enough to ask someone to plead to a crime, I think it has necessarily decided the evidence is strong enough to treat the abuse as established for sentence-reduction purposes.

Without wading in too deep to your hypothetical, aren't the third parties whose action/inaction increases a sentence usually the defendant's co-conspirators or confederates? I am somewhat more okay with the idea that someone who chooses to commit a crime accepts that their prosecution and sentence may be affected by the choices of their chosen co-conspirators/confederates than I am with the idea that the public loses its interest in an otherwise appropriate sentence under 3553 because of alleged official misconduct. As my comment suggests, I am willing to support a reduction where there is adequate evidence of the misconduct apart from the accused's silence. But drawing an adverse inference against the public due to a former or soon-to-be-former employee's refusal to testify, or awarding sentence reductions for any complaint that cannot be affirmatively disproven, would be a bridge too far for me. Although I accept that most abuse allegations are well-founded in fact, I am not sure if that would hold when the prospect of a significant sentence reduction comes into play and if the inmate strongly suspects that the accused employee will refuse to cooperate. But if DOJ is willing to immunize the employees, that isn't really a major concern.

Posted by: Jason | May 11, 2022 12:33:30 PM

I do not disagree with your general points, Jason, but I wanted to highlight that the feds often push for lighter sentences for guilty individuals to get information that is used to get longer sentences for other individuals. If the concern is lack of information, the feds should be willing to use the same tools to help abuse victims and then use to punish others. Of course, here the abuse victims are also guilty and punished. But unless we think the 3553(a) analysis would have been the same if the original prison sentence included sexual abuse by staff, I think there is a pretty solid 3553(a) case for relief. Lots of details matter --- an offender serving 20 years for sell her kids into CP is different than one serving 20 years for crack distribution --- and I think the 3553(a) assessment is the key issue under existing statutes. My point was just that we do 3553(a) analysis based on all sorts iffy information, probably a lot more iffy for enhancement than we ought to be comfortable with.

Posted by: Doug B. | May 11, 2022 2:30:25 PM

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