It’s been more than a quarter-century since Congress rewrote the federal criminal code to toughen criminal sentences, abolish parole, and add drug and other crimes. Since then, federal crimes have mushroomed, and the numbers of people in federal prison has increased exponentially. Is this system the best we can do?

By Johanna E. Markind

64 • THE FEDERAL LAWYER • August 2014 Federal Crime and Punishment Meet the New System, Same as the Old System?

n 1987, the Sentencing Reform Act transferred to the United States under treaty. But the Parole Commission’s principal focus is now administering parole and (SRA) eliminated parole for federal supervised release for the local District of Columbia criminal Icrimes. The U.S. Parole Commission population. had five years to phase out parole and shut The decline in federal parole has led to an explosion of federal inmates. As of March 21, 2013, the Bureau of Prisons down. Since then the commission has been (BOP) reported 217,929 prisoners in custody, around 210,000 extended several times. Most recently, Con- of whom are not eligible for parole, resulting in substantial overcrowding.3 In short, today’s federal prisons have about gress approved a five-year reauthorization 495 percent more prisoners than they did back in 1987 when bill, which the President signed into law on parole was abolished. To handle the increased volume, BOP’s Oct. 31, 2013. budget has increased exponentially, from $220 million in 1986 to $6.859 billion for fiscal year 2014, a 3,153 percent increase From a high of about 44,000 prisoners in 1987,1 the com- since the abolishing of parole. As Sen. Everett Dirksen (R-Ill.) mission now has jurisdiction over fewer than 1,200 federal is reputed to have said, “A billion here, a billion there, and prisoners and 2,500 federal parolees.2 The bulk of its respon- pretty soon you’re talking real money.”4 sibilities now lies elsewhere— deciding whether to release on The increase in incarcerated prisoners and costs is partly parole, and whether to revoke parole or supervised release attributable to a vast growth of federal crimes. In particular, of District of Columbia Code offenders. (For the uniniti- Congress federalized a lot of drug crimes about a year before ated, supervised release is a period of post-incarceration abolishing parole. The Anti-Drug Abuse Act of 1986 greatly re-entry to society overseen by the authorities, in many ways expanded the number and scope of federal drug crimes and analogous to parole.) D.C. offenders under supervision of penalties for their violation. About 48 percent of people now the Parole Commission now number about 17,200 people, or serving time in federal prison are there for drug offenses, about 83 percent of its workload. The commission also makes according to a Government Accountability Office (GAO) parole decisions for military prisoners in the custody of the study. Bureau of Prisons and determines release dates for Americans But these mushrooming numbers also result from the convicted of crimes in foreign countries who have been abolition of parole, which had previously functioned as a

August 2014 • THE FEDERAL LAWYER • 65 safety valve for the system. In an August 2013 address to the ago piecemeal, it may be time for Congress to undertake a sys- American Bar Association (ABA) House of Delegates, Attorney tematic review of its criminal justice system: what works, what General Eric Holder said that, under the current system, “too doesn’t, and what could stand improvement? many Americans go to too many prisons for far too long and for Following is my proposed agenda for such a review. no truly good law enforcement reason.”5 In a November 2013 interview with USA TODAY, Holder suggested that “new consid- Revamping the Federal Criminal Code eration should be given to the reinstatement of parole for federal The vast expansion of federal drug crimes accounts for almost offenders to help restore fairness in the criminal justice system half of federal prisoners. The cost of prosecution and punishment and relieve overcrowding in the swelling federal prison system.”6 is enormous, especially in light of stiff mandatory sentencing In the August ABA speech, Holder presented a package of minimums, which is why two of the changes respectively adopted revised Department of Justice policies to ease overcrowding and and advocated by the attorney general concern narrowing the improve sentencing fairness. These include increasing compas- impact of these mandatory minimums. sionate releases of nonviolent elderly inmates to be administered Historically, drug crimes were generally considered a state by the BOP (the Parole Commission already had authority to problem. During his Oct. 5, 2011, testimony before the Senate order compassionate release of inmates sentenced pre-SRA), Judiciary Committee, Justice Antonin Scalia remarked, “I think it avoiding charges for low-level and nonviolent drug offenders was a great mistake to put routine drug offenses into the federal that would carry mandatory minimum sentences, and endorsing courts. That’s just routine stuff that used to be handled by state proposed legislation to permit federal judges to vary from “man- courts.”8 Last December, Washington and Colorado legalized the datory” minimums for certain drug offenses. use of marijuana. Several other states have legalized its use for One of the goals of the Sentencing Reform Act was to pro- medical purposes. mote fairness by prescribing more or less the same time for the Congress should revisit whether drug crimes should be crimes same crime, thus avoiding unwarranted sentencing disparities. at all, whether they should be federal crimes, and what sanctions Although the sentencing guidelines tried to account for dis- would be appropriate if they remain on the books. Fortunately, tinctions between offenders as well as crimes, the prescriptive we have a partial model for this study, in the form of alcohol. approach could not help but overlook many differences. Many Prohibition certainly was effective in reducing alcoholism and judges felt the SRA straightjacketed them into imposing sen- related health problems. It ended during the straitened financial

Drug crimes are not the only problematic federal crimes. In a joint study published in 2010, “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law,” the National Association of Criminal Defense Lawyers and the Heritage Foundation decried the “reckless pace of criminalization” and poor draftsmanship that have created federal crimes with murky mens rea requirements, sowing confusion, additional administrative costs, and potential wrongful conviction. tences they did not believe to be fair or appropriate. Judges and circumstances of the Great Depression, arguably to enable states criminal defense lawyers complained that the SRA unconsti- to benefit from alcohol tax revenue. By reviewing the impact of tutionally shifted power from judges and juries to prosecutors Prohibition’s repeal, we may gain useful insight into the prob- because the prosecutor’s charging decisions largely dictated the able impact of drug legalization, insofar as whether it is likely ultimate sentence. The judge had little power to deviate from the to increase or decrease crime, whether it is likely to increase guidelines, and juries not only didn’t determine sentences, they or decrease health problems related to drug use and abuse, and were shielded from any knowledge of sentencing consequences. how much it is likely to increase revenue if drugs are legalized The Supreme Court’s 2005 decision in United States v. and taxed. Booker reinstated some judicial discretion by making the sen- Drug crimes are not the only problematic federal crimes. In tencing guidelines advisory instead of mandatory. But, even a joint study published in 2010, “Without Intent: How Congress still, judges are not permitted to sentence below the mandatory Is Eroding the Criminal Intent Requirement in Federal Law,”9 minimums established by Congress for a given crime. Holder the National Association of Criminal Defense Lawyers and the urged Congress to remove unnecessary mandatory minimums,7 Heritage Foundation decried the “reckless pace of criminaliza- and in the interim proposed that prosecutors avoid, in some tion” and poor draftsmanship that have created federal crimes instances, charging crimes carrying a mandatory minimum. (This with murky mens rea requirements, sowing confusion, addi- interim proposal tends to increase prosecutorial plea-leverage). tional administrative costs, and potential wrongful conviction. As With such changes, the new sentencing system is looking more Justice Scalia noted in his dissent in Sykes v. United States,10 and more like the old system, in which judges had unfettered discretion in imposing sentences and prisoners could be released We face a Congress that puts forth an ever-increasing vol- before their terms expired if they were deemed not to pose a ume of laws in general, and of criminal laws in particular. threat to society. It should be no surprise that as the volume increases, so Rather than reworking or reversing changes imposed 26 years do the number of imprecise laws. And no surprise that our

66 • THE FEDERAL LAWYER • August 2014 indulgence of imprecisions that violate the Constitution As Tierney notes, increased prison time for nonviolent offenders encourages imprecisions that violate the Constitution. may actually increase recidivism, “creating more crime over the Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts long term by harming the social fabric in communities and per- legislation is attractive to the Congressman who wants manently damaging the economic prospects of prisoners as well credit for addressing a national problem but does not have as their families.” the time (or perhaps the votes) to grapple with the nitty- People from both sides of the political spectrum have begun gritty. In the field of criminal law, at least, it is time to call to question the need for and utility of more and longer sentences. a halt. For example, Newt Gingrich co-authored an op-ed published in the Jan. 7, 2011 Washington Post urging states to consider Congress should rewrite the federal criminal code to elimi- alternatives to incarceration, like drug treatment, to cut costs, nate unnecessary federal crimes, clarify elements, and collect all and arguing its consistency with public safety. The article, appro- federal crimes under one title instead of scattered throughout. priately entitled “Prison Reform: A Smart Way for States to Save Money and Lives,”12 points to Texas as an example of cutting Achieving the Same Benefits with Shorter Sentences costs while simultaneously reducing crime. In theory, federal sentences are supposed to involve no great- er deprivation of liberty than is reasonably necessary to achieve We urge conservative legislators to lead the way in their goals. In reality, they are longer than they need to be, and addressing an issue often considered off limits to reform: harming the public. prisons. Several states have recently shown that they can Longer sentences may very well be fit punishment for crimes, save on costs without compromising public safety by intel- especially those inflicting serious or permanent bodily injury. ligently reducing their prison populations. As the neighbor of someone who was kidnapped and murdered a long time ago, I can relate to people who want to throw away We joined with other conservative leaders last month to the key thinking, “The victim is never coming back and neither announce the Right on Crime Campaign, a national move- should the perpetrator.” And I’m all for truth in sentencing so ment urging states to make sensible and proven reforms to that victims and their families have a clear understanding of our criminal justice system—policies that will cut prison when the perpetrator may get out and when he definitely will costs while keeping the public safe. Among the prominent get out. It may be that the severe sanctions imposed beginning in signatories are Reagan administration attorney general Ed the early 1980s were a necessary corrective to an overly lenient Meese, former drug czar Asa Hutchinson, David Keene system that was insensitive to victims. of the American Conservative Union, John Dilulio of the But a lot of federal crimes carrying severe sanctions do not University of Pennsylvania, Grover Norquist of Americans have a specific victim. This discussion is in many ways a corol- for Tax Reform, and Richard Viguerie of ConservativeHQ. lary to the discussion about the nature and seriousness of drug com. We all agree that we can keep the public safe while offenses, which arguably foster harm to society even if they spending fewer tax dollars if we spend them more effectively. appear to be victimless. In regard to the drug crimes Holder has directed U.S. attorneys not to charge—should they carry such Former Gov. Jeb Bush (R-Fla.) is another recruit to the Right long sentences, mandatory or otherwise? on Crime Campaign. Sen. Rand Paul (R-Ky.) and former National An increasing body of research suggests that longer sentences Rifle Association President David Keene have also challenged the do not reduce recidivism. A 1994 U.S. Department of Justice wisdom of mandatory minimums. study states, “The great majority of recidivism studies of State On the Democratic side, Sen. Patrick Leahy (Vt.), chairman prison releasees and all studies of Federal prison releasees report of the Senate Judiciary Committee, has expressed concern over that the amount of time inmates serve in prison does not increase the high rate of incarceration, as well as the fact and cost of or decrease the likelihood of recidivism.” A study published in longer incarceration terms. During a Dec. 12, 2012, hearing of 2011 by the U.S. Sentencing Commission found that there is the Subcommittee on the Constitution, Civil Rights, and Human “no statistically significant difference in the recidivism rates Rights, Sen. Leahy reiterated these concerns while referencing of” people released under the 2007 Crack Cocaine Amendment the New York Times article referenced above.13 During a Jan. (which reduced sentences for crack offenders by an average of 16, 2013, talk at Georgetown University Law Center, he said he 25 percent) compared with people released under the longer thought mandatory minimums in federal (and state) sentencing sentences required by prior guidelines. The New York Times were a mistake and that judges should have the freedom to craft referenced some of this research in the article (prominently appropriate sentences.14 He and Sen. Paul have co-sponsored the placed above the fold on the front page), “For Lesser Crimes, Justice Safety Valve Act of 2013,15 which would authorize federal Rethinking Life Behind Bars,” by John Tierney (Dec. 12, 2012).11 judges to impose sentences below mandatory minimums and Citing a study by Steven N. Durlauf and Daniel S. Nagin, the which the attorney general recently endorsed. Sen. Leahy and Times reported, “Studies have failed to find consistent evidence Sen. Dick Durbin (D-Ill.) both co-sponsored the Second Chance that the prospect of a longer sentence acts as a significantly Act of 2007, signed into law April 9, 2008, which aims to reduce greater deterrent than a shorter sentence.” The idea that short recidivism. Then-Sen. Barack Obama (D-Ill.) also co-sponsored and swiftly imposed sanctions sufficiently ensure compliance and the bill, which was introduced by then-Sen. Joe Biden (D-Del.). discourage recidivism among many technical violators of parole is The rising cost of health care for prisoners has also moti- a guiding principle of the Parole Commission’s Project Success. vated states to parole elderly or sick patients.16 Perhaps the

August 2014 • THE FEDERAL LAWYER • 67 approaching deadline for implementing the Affordable Care Act ships, plus an additional eight temporary judgeships, according was another incentive behind Holder’s initiative to expand the to the U.S. Courts website. It added another 69 in 1990. In 2002, BOP’s compassionate release program in the federal system, Congress increased the total number of district court judgeships which applies to previously sentenced federal prisoners. But from 651 to 663 (in addition to adding or extending eight tempo- states have taken early release a step further. As they have tried rary judgeships, as noted in the Chief Justice’s “2002 Year-End to balance rising prison costs with budget shortfalls during the Report”). Despite the increased workload, no district court judge- past few years, several states have expanded parole. The New ships have been added since 2002, although some temporary

There are plenty of indications that federal judges’ workloads have increased in pace with the exponential growth in federal crimes. The total number of federal district court judgeships has increased by almost one-third.

York Times reports, “In the rush to save money in grim budget- judgeships have since been extended. The current total is 663 ary times, states nationwide have trimmed their prison popula- permanent, representing a 30 percent increase over the 510 that tions by expanding parole programs and early releases. But the existed pre-SRA, and 10 temporary district court judgeships. result—more convicted felons on the streets, not behind bars— There has been no comprehensive judgeship legislation since has unleashed a backlash, and state officials now find themselves 1990. The Senate last considered it in 2009, when Judiciary trying to maneuver between saving money and maintaining the Committee Chairman Leahy introduced Senate Bill 1653. That bill, public’s sense of safety.”17 entitled the Federal Judgeship Act of 2009, would have added 38 permanent new district court judgeships and 9 permanent appel- Relieving Our Federal Courts of the Burden of Increased late court judgeships, plus 16 temporary judgeships. “Since [1990], Federal Crimes the magnitude and complexity of federal civil and criminal filings Increasing the number of federal crimes and giving district have dramatically increased. Appeals have risen by 42 percent and courts oversight of supervised release has greatly expanded the district court cases have increased by 34 percent. The significant federal courts’ involvement in criminal matters. Over time, more docket growth has undermined the ability of federal appeals and people have been charged with federal crimes and more federal district courts to decide cases swiftly, economically, and fairly.” crimes require lengthy periods of supervised release, inflating that The bill was never brought to a vote in the Senate. In May 2011, involvement even more. Sen. Dianne Feinstein (D-Cal.) introduced Senate Bill 1014, the The Chief Justice’s “2013 Year-End Report on the Federal Emergency Judicial Relief Act of 2011, which would add 10 new Judiciary”18 notes that over the course of the year, caseloads judgeships in California, Arizona, Texas, and Minnesota and convert increased for district courts while remaining relatively stable for two temporary judgeships to permanent status. That bill has not probation. The number of criminal defendants reached an all-time passed either. high of 102,931 in 2011.19 That figure declined to 94,121 in 2012 William Rehnquist, who served as Chief Justice from 1986 to and to 91,266 in 2013. The number of persons under post-convic- 2005, repeatedly requested both more federal judgeships and tion supervision (131,869) in 2013 fell just slightly (less than 1 per- speedier filling of judicial vacancies. As the New York Times cent) below the 2012 total (132,340). This includes 109,379 people reported in 1991, serving supervised release (SR) terms, which is 83 percent of all people under supervision and 1 percent more than the 108,372 In his [1990 Year-End] report, the Chief Justice said that the who were serving SR terms in 2012. The 2013 report did not say Federal courts’ budget for the current fiscal year had topped how many SR revocation hearings district courts conducted in $2 billion for the first time and that the growing Federal case- 2013 or how much time was devoted to SR violation issues. The load, “fueled by drug cases and an ever-rising tide of personal 2012 report did not provide numbers for time the courts devoted bankruptcies,” was sure to require even greater spending. to supervised release, either. By way of comparison, during fiscal year 1986, the Parole More and More Prosecutions Commission had a total of 16,746 persons under release supervi- In 1990 drug prosecutions in Federal courts rose 6 percent, he sion and conducted a total of 2,354 revocation hearings.20 The fol- said, “while filings for violations of weapons and immigration lowing year, FY 1987, it had a total of 18,171 persons under release laws climbed more than 23 percent each, as the Immigration supervision and conducted a total of 2,519 revocation hearings. and Naturalization Service and Bureau of Alcohol, Tobacco, Presumably, oversight of the roughly 108,000 currently super- and Firearms used their expanded resources to attack drug vised releasees is taking a bite out of district court judges’ time, networks.” but how much in raw numbers of hours or percentages of time is a mystery. Nevertheless, there are plenty of indications that federal *** judges’ workloads have increased in pace with the exponential growth in federal crimes. The total number of federal district court President [George H.W.] Bush recently signed into law a mea- judgeships has increased by almost one-third. In 1983, there were sure creating 85 new Federal judgeships, raising the total to 510 federal district court judgeships. In 1984, the same year it 828. In his year-end report Chief Justice Rehnquist said, “The passed the Sentencing Reform Act, Congress added 53 new judge- judiciary was in desperate need of additional judgepower.”

68 • THE FEDERAL LAWYER • August 2014 Twelve years later, Chief Justice Rehnquist was still request- 3U.S. Department of Justice, Federal Prison System, FY ing “more judgeships and speedier filling of existing vacancies,” 2014 Congressional Budget, Buildings and Facilities, at page 1, in addition to higher pay. “The themes were familiar, as the chief available online at www.justice.gov/jmd/2014justification/pdf/ justice acknowledged in his 17th year-end report. Reflecting on bop-bf-justification.pdf. his 2002 Year-End Report, he said, ‘I am struck by the number 4Russell Baker, “Dirksen, Reagan, and Real Money,” NY of issues that seem regularly to crop up, or perhaps they never Times, Oct. 2, 1985 (“a million here, a million there…”); www. go away.’” This has become a regular trop of year-end reports. In dirksencenter.org/print_emd_billionhere.htm (accessed Jan. 13, the 2012 report, Chief Justice John Roberts wrote, “I therefore 2014). encourage the President and Congress to be especially attentive 5“Attorney General Eric Holder Delivers Remarks at the Annual to the needs of the Judicial Branch and provide the resources Meeting of the American Bar Association’s House of Delegates,” necessary for its operations. Those vital resource needs include Aug. 12, 2013, available online at www.justice.gov/iso/opa/ag/ the appointment of an adequate number of judges to keep cur- speeches/2013/ag-speech-130812.html (accessed Jan. 13, 2014). rent on pending cases.” In the 2013 report, the Chief Justice 6Kevin Johnson, “Attorney General: ‘No Basis’ for Snowden made a particularly poignant plea for adequate funding to enable Clemency,” USA Today, Nov. 5, 2013, available online at www. the judiciary to meet its many needs, including judges and other usatoday.com/story/news/nation/2013/11/05/holder-snowden- personnel. leaks-surveillance-nsa/3447733/ (accessed Jan. 13, 2014). During his Oct. 5, 2011, testimony21 before the Senate 7Holder reiterated his support for increasing judicial discretion Judiciary Committee, Justice Scalia suggested that the expanded not to impose mandatory minimum sentences in a recent press number of federal judgeships—itself necessitated by the expan- release endorsing the Smarter Sentencing Act. Attorney General sion of federal crimes—decreased the prestige of the position Eric Holder Urges Congress to Pass Bipartisan ‘Smarter and thereby made it less attractive to the best and brightest. Sentencing Act’ to Reform Mandatory Minimum Sentences, It’s time to review how much time the courts are devoting to Department of Justice Office of Public Affairs, Jan. 23, 2014, criminal cases now compared to the past; how much of that is available online at www.justice.gov/opa/pr/2014/January/14- devoted to supervised release matters; how judges themselves, ag-068.html. as well as other stakeholders, feel about their oversight role; 8Senate Hearing 112-137 (Oct. 5, 2011), available online and whether the current system could be improved. If Congress at www.gpo.gov/fdsys/pkg/CHRG-112shrg70991/html/CHRG- and possibly the judiciary were to conclude that overseeing 112shrg70991.htm (accessed Jan. 13, 2014). supervised release violations is taking up too much valuable 9www.heritage.org/research/reports/2010/05/without-intent court time, it should look at other options. Perhaps magistrate (accessed Jan. 13, 2014). judges should handle supervised release issues, with both sides 10Sykes v. United States, 564 U.S. _, 131 S. Ct. 2267, 2288 having a right of appeal to district courts. It’s even possible that (2011) (Scalia, J., dissenting) specialized magistrate-level courts could be established to over- 11www.nytimes.com/2012/12/12/science/mandatory-prison- see supervised release, similar to bankruptcy courts overseeing sentences-face-growing-skepticism.html (accessed Jan. 13, bankruptcy cases. It is even possible that a modified form of 2014). parole/early release from prison might be reinstituted and/or 12Newt Gingrich and Pat Nolan, “Prison Reform: A Smart that a commission analogous to the Parole Commission might be Way for States to Save Money and Lives,” Washington Post, Jan. created to oversee the supervised release revocation process.  7, 2011, available online at www.washingtonpost.com/wp-dyn/ content/article/2011/01/06/AR2011010604386.html (accessed Johanna E. Markind is an attorney spe- Jan. 13, 2014). cializing in federal criminal law who 13Senate Judiciary Committee, Subcommittee on the formerly worked for the U.S. Parole Constitution, Civil Rights, and Human Rights, Dec. 12, 2012, Commission as its attorney and media webcast at www.judiciary.senate.gov/hearings/hearing.cfm?id=b6 representative. 1e5f08eadf22b2ec4ab964fc64ae9f (Sen. Leahy’s comments begin at about the 20:40 minute mark). See also Statement of Sen. Patrick Leahy, Dec. 12, 2012 (available online at www.judiciary. senate.gov/pdf/12-12-12LeahyStatement.pdf (accessed Jan. 13, 2014) (“More recently, in August of this year, I chaired a hearing Endnotes examining rising prison costs. The hearing highlighted the fact 1Eric Simon, “The Impact of Drug-Law Sentencing on the that more and more people are being incarcerated for longer and Federal Prison Population,” Federal Sentencing Reporter Vol. 6, longer, which has resulted in increased costs and has place an No. 1, Independent Research on Federal Sentencing (Jul.-Aug. enormous strain on Federal, state, and local budgets.”) 1993), pp. 29-32. Published by: University of California Press. 14“The Agenda for the Senate Judiciary Committee for the 113th The article may be obtained online via www.jstor.org/discover/1 Congress,” Jan. 16, 2013, 10:00 a.m., Georgetown University Law 0.2307/20639627?uid=3739808&uid=2&uid=4&uid=3739256&s Center, available at www.c-span.org/Events/Sen-Leahy-Outlines- id=21103412881883. Judiciary-Cmte-2013-Agenda/10737437273-1/ (the referenced 2U.S. Department of Justice, U.S. Parole Commission, FY 2014 comments begin at about the 10:45 minute mark). Performance Budget, at page 18, available online at www.justice. gov/jmd/2014justification/pdf/uspc-justification.pdf. Crime continued on page 76

August 2014 • THE FEDERAL LAWYER • 69 drawn out, you sound like a hick, and people will look to see if Good luck, and you’re welcome. (Oh, and don’t bother to ask you scraped the manure off your boots before you came in. So I another judge if I speak for them—I don’t. We all see ourselves guess either way you can’t win. as independent contractors.) 

With All Due Respect to Opposing Counsel Say this just before firing below-the-belt personal insults at opposing counsel. And if the other attorney says it, take a deep breath, ‘cause here it comes at you.

MIXED CASES continued from page 72 case appeal that the Board resolves either on the merits or on 2013). procedural grounds”). 25Id. at 5 (citing Garcia v. Dep’t of Homeland Security, 437 15Conforto v. MSPB, 713 F.3d 1111 (Fed. Cir. 2013). F.3d 1322, 1348 n.6 (Fed. Cir. 2006)). 16Conforto, 713 F.3d at 1116. 26Brooks v. Dep’t of the Air Force, Case No. 2013-3033 (Fed. 17Conforto, 713 F.3d at 1116. Circ., Nov. 21, 2013). 18Conforto, 713 F.3d at 1117. 27Id. at 3 (quoting Mills v. USPS, 119 M.S.P.R. 482, ¶ 9 19Conforto, 713 F.3d at 1116-17. (M.S.P.B. 2013)). 20Conforto, 713 F.3d at 1118. See also Kafele v. U.S. Postal 28Bean v. U.S. Postal Service, 2013 M.S.P.B. 98 (MSPB, Dec. Service, 513 Fed. Appx. 987 (Fed. Cir. 2013) (following 16, 2013). Conforto). 29Bean, supra, at ¶ 9. 21Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013). 30Bean, supra, at ¶ 10. 22Id. at 1154. 31Bean, supra, at ¶ 11. 23Id. 32Id. 24Taylor v. MSPB, Case No. 2013-3113 (Fed. Cir., Sept. 18, 33Kloeckner, 133 S.Ct. at 607.

CRIME continued from page 69

15S.619, available online at beta.congress.gov/bill/113th/senate- 18The Chief Justice’s 2013 Year-End Report on the Federal bill/619 (accessed Jan. 13, 2014). Judiciary, available online at www.supremecourt.gov/publicinfo/ 16Niraj Chokshi, “State Spending on Prison Health Care year-end/2013year-endreport.pdf. Is Exploding. Here’s Why,” Washington Post, Oct. 30, 2013, 19The Chief Justice’s 2012 Year-End Report on the Federal available at www.washingtonpost.com/blogs/govbeat/ Judiciary, available online at www.supremecourt.gov/publicinfo/ wp/2013/10/30/state-spending-on-prison-health-care-is- year-end/2012year-endreport.pdf (accessed Jan. 13, 2014). exploding-heres-why/?tid=hpModule_ba0d4c2a-86a2-11e2-9d71- 20See U.S. Department of Justice, U.S. Parole Commission, f0feafdd1394&hpid=z13. “Report of the U.S. Parole Commission Oct. 1, 1988, to September 17Monica Davey, Safety Is Issue as Budget Cuts Free Prisoners, 30, 1989,” at pages 10 and 7, respectively, available at www.ncjrs. NY Times, March 4, 2010, available online at www.nytimes. gov/pdffiles1/Digitization/131426NCJRS.pdf. com/2010/03/05/us/05parole.html?pagewanted=all (accessed 21Supra note 4. Jan. 13, 2014).

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76 • THE FEDERAL LAWYER • August 2014