Wednesday, April 8, 2020

"The Misplaced Trust in the DOJ's Expertise on Criminal Justice Policy"

The title of this post is the title of this notable new paper authored by Shon Hopwood now available via SSRN. Here is its abstract:

In this Review of Professor Rachel Barkow's new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, I address Professor Barkow’s point about law enforcement resisting criminal justice reforms.  I place particular emphasis on the Department of Justice’s (DOJ) and the National Association of Assistant U.S. Attorneys’ (NAAUSA) opposition to nearly any federal criminal justice reform.  Federal prosecutors often claim that they just enforce the law — no more, no less.  But their actions show the contrary.

Through presidential administrations of both parties, the DOJ and the NAAUSA have affirmatively opposed most federal criminal justice reforms on issues involving sentencing, corrections, and clemency.  Oftentimes they weigh in on issues for which their prosecutors have no expertise.  Even worse, they have thwarted the goals of the very presidents they serve, especially if the president sets out to reform the system in ways that infringe on the DOJ’s prerogatives. 

If their opposition to reform were rooted in public safety or fairness, that would be one thing.  But through their lobbying efforts, they often advocate for policies that make it easier for federal prosecutors to charge and incarcerate people — as if that is the only worthy goal of the federal criminal justice system.  And all too often federal policymakers — whether members of Congress, the White House, or the U.S. Sentencing Commission — have listened.  As a result, there are now nearly 4,450 federal statutes and hundreds of thousands of federal regulations carrying criminal penalties, excessively punitive federal sentences, and a federal prison population that has increased by 618 percent since 1980.

April 8, 2020 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Recommended reading, Who Sentences | Permalink | Comments (0)

Does splintered nature of DC Circuit panel ruling suggest federal executions are now unlikely until at least 2022?

As reported in this post yesterday, a divided DC Circuit panel lifted an injunction on federal executions via this 88-page opinion in In Re: Federal Bureau Of Prisons’ Execution Protocol Cases, No. 19-5322 (DC Cir. April 7, 2020).  Over at Crime & Consequences, Kent Scheidegger here provides an effective summary of the three opinions from the three judges on the panel while noting that the "division on the panel clearly requires further review, and the court on its own motion stayed the issuance of its mandate to allow it."  In other words, the defendants subject to possible execution now have time and every good reason to ask the full DC Circuit and also SCOTUS to address just how federal executions must be conducted under existing statutory authority.

I cannot imagine any reason why defendants would not first seek en banc DC Circuit review.  I am not an expert in en banc procedures, but I do know just the process of just seeking such review and having it rejected can itself often take at least a few months.   In this case, given the issue and the split among the panel judges, I would guess the odds of a grant of en banc review are much higher than usual.  If such review is granted, I would be surprised to see a full opinion from the full DC Circuit until sometime in (early?) 2021.

Whatever the DC Circuit does and whenever it does it, an appeal to the US Supreme Court is a near certainty.  If the full DC Circuit takes up this case and provides a clear script for federal executions to go forward, I suppose it is possible that SCOTUS would not grant review.  But I think it quite likely, no matter what the DC Circuit does, that this matter will be considered on the merits by SCOTUS.  And, roughly speaking, it can often take up to 18 months or 2 years between a lower court's ruling and a disposition on the merits by the Supreme Court.  (The Fourth Amendment case of Kansas v. Glover decided by SCOTUS this week, for example, had been decided by the Kansas Supreme Court 21 months ago in July 2018.)

Of course, the Justice Department could urge for this matter to be litigated more quickly, and maybe could even ask immediately for SCOTUS review by claiming it could not operate an execution protocol effectively on the terms set out in the DC Circuit panel decision.  But, of course, the Justice Department has a lot on its plate these days; it hardly clear, practically or politically, that DOJ will want to press forward with any suggestion that this case involves priority matters at this time.  

Future litigation realities aside, there are other political/legal possibilities that might change this federal capital landscape and timeline.  Congress could alter the text of the statute that is the focal point of this legal battle.  But that seems unlikely when Congress is itself busy with more pressing matters, and a legislative change would itself likely engender just another type of litigation.  Perhaps more likely, as we are now less than seven months to a scheduled election, is a change in administration.  For the first time since 1988, it appears that the Democratic nominee for president will campaign as an opponent of capital punishment.  If a Democrat is in charge come 2021, it is possible (though not a certainty) that the Justice Department will not continue to seek conduct federal executions).

Long story short: though the death-row defendants lost a battle yesterday, the always lengthy capital litigation war is still a long way from final resolution.

Prior related posts:

April 8, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Reforms without Results: Why states should stop excluding violent offenses from criminal justice reforms"

The title of this post is the title of this notable new Prison Policy Initiative report authored by Alexi Jones.  Here is how the data-rich report gets started:

States are increasingly recognizing that our criminal justice system is overly punitive, and that we are incarcerating too many people for too long.  Every day, 2.3 million incarcerated people are subject to inhumane conditions, offered only limited opportunities for transformation, and are then saddled with lifelong collateral consequences.  Yet as states enact reforms that incrementally improve their criminal justice systems, they are categorically excluding the single largest group of incarcerated people: the nearly 1 million people locked up for violent offenses.

The staggering number of people incarcerated for violent offenses is not due to high rates of violent crime, but rather the lengthy sentences doled out to people convicted of violent crimes.  These lengthy sentences, relics of the “tough on crime” era, have not only fueled mass incarceration; they’ve proven an ineffective and inhumane response to violence in our communities and run counter to the demands of violent crime victims for investments in prevention rather than incarceration.

Moreover, cutting incarceration rates to anything near pre-1970s levels or international norms will be impossible without changing how we respond to violence because of the sheer number of people — over 40% of prison and jail populations combined — locked up for violent offenses.  States that are serious about reforming their criminal justice systems can no longer afford to ignore people serving time for violent offenses.

There are, unquestionably, some people in prison who have committed heinous crimes and who could pose a serious threat to public safety if released.  And by advocating for reducing the number of people incarcerated for violent offenses, we are not suggesting that violence should be taken any less seriously.  On the contrary, we suggest that states invest more heavily in violence prevention strategies that will make a more significant and long-term impact on reducing violence, which, again, reflects what most victims of violent crime want.  The current response to violence in the United States is largely reactive, and relies almost entirely on incarceration, which has inflicted enormous harms on individuals, families, and communities without yielding significant increases in public safety.

April 8, 2020 in Data on sentencing, Detailed sentencing data, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, April 7, 2020

Pretty new BOP COVID-19 update page reports ugly new spike in COVID cases among federal inmates and staff

Sometime today, the federal Bureau of prisons updated its BOP's COVID-19 Update page.  The new page now has a map that now shows the "34 BOP facilities and 6 RRCs affected nationwide" by COVID_19 cases.  The page also report that as "04/07/2020, there are 241 federal inmates and 73 BOP staff who have tested positive for COVID-19 nationwide. There have been 8 federal inmate deaths and 0 BOP staff member deaths attributed to COVID-19 disease."  (Just two days ago, on April 5,  the page reported 138 federal inmates and 59 federal prison staffers had tested positive for the coronavirus).

This BOP page is now also reporting that "Since the release of the Attorney General's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 615 inmates on home confinement."

Meanwhile, the Daily Beast is reporting that "The Bureau of Prisons Just Bought a Ton of Hydroxychloroquine, Trump’s COVID-19 Miracle Drug"

April 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (8)

Reviewing action by (too few) Governors to reduce incarcerated populations in response to COVID crisis

I have been pleased to see a few Governors step up to deal with the COVID crisis created by crowded prisons and jails, but I continue to be disappointing that there are seemingly not that many chief executives being proactive in this space during these harrowing times.  I suspect and fear that I am here not providing a complete accounting of good gubernatorial actions, but I welcome comments or emails for supplementing this list:

Alabama: "Ivey order allows for release of some county jail inmates"

Colorado: "Colorado places a moratorium on new prison intakes during pandemic"

Kentucky: "Kentucky plans to release more than 900 prisoners because of the COVID-19 outbreak"

Illinois: "Pritzker signs executive order allowing medical furloughs for IDOC inmates vulnerable to coronavirus"

Ohio: "Coronavirus in Ohio: Gov. Mike DeWine plans to release some prison inmates due to COVID-19"

New Mexico: "Gov. orders early release of some inmates"

New York: "NY to release 1,100 parole violators as coronavirus spreads"

April 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Split DC Circuit panel (after taking twice as long as Justice Alito urged) vacates preliminary injunction blocking resumption of federal executions

As regular readers may recall, Attorney General William Barr last July announced a new Federal Execution Protocol in order to enable the federal government to resume capital punishment after a nearly two decade lapse.  AG Barr set execution dates for five (mysteriously selected) federal murders starting in December 2019, which of course got lots of federal capital litigation going.

In late November 2019, as noted here, a federal district judge enjoined the scheduled federal executions based on the view that the planned execution protocol "exceeds statutory authority."  In short order, the DC Circuit and then SCOTUS refused to vacate that injunction, but SCOTUS on December 6 urged the DC Court of Appeals to render a full decision on the matter "with appropriate dispatch."  Justice Alito issued a statement, joined by Justices Gorsuch and Kavanaugh, said her could "see no reason why the Court of Appeals should not be able to decide this case, one way or the other, within the next 60 days." 

We are now 123 days from when these matters were addressed by the Supreme Court on December 6, 2019, and we have also now experienced a global pandemic.  But the federal capital punishment train is still on the tracks, it seems, as today a divided DC Circuit panel handed down an 88-page opinion in In Re: Federal Bureau Of Prisons’ Execution Protocol Cases, No. 19-5322 (DC Cir. April 7, 2020) (available here).  Here is how the opinion gets going:

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge KATSAS.

Concurring opinion filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge TATEL.

PER CURIAM: The Federal Death Penalty Act of 1994 (FDPA) requires federal executions to be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.” 18 U.S.C. § 3596(a). It is common ground that this provision requires the federal government to adhere at least to a State’s choice among execution methods such as hanging, electrocution, or lethal injection. The district court held that the FDPA also requires the federal government to follow all the subsidiary details set forth in state execution protocols—such as, in the case of lethal injection, the method of inserting an intravenous catheter. On that basis, the court preliminarily enjoined four federal executions.

Each member of the panel takes a different view of what the FDPA requires. Because two of us believe that the district court misconstrued the FDPA, we vacate the preliminary injunction.

I presume the federal death row defendants in this case will now seek en banc and/or SCOTUS review, so more litigation is much more certain than more executions in the federal system.

Prior related posts:

April 7, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"We’ll see many more covid-19 deaths in prisons if Barr and Congress don’t act now"

The title of this post is the headline of this new Washington Post op-ed authored by three federal public defenders, Lisa Freeland, David Patton and Jon Sands. Here are excerpts:

The numbers of covid-19 cases in the Bureau of Prisons are rising exponentially, at a pace far surpassing the U.S. population at large....  And because testing has been grossly insufficient, these numbers are almost certainly an undercount. 

As federal public and community defenders, we represent the majority of those charged with federal crimes.  We are witnessing the public health crisis firsthand.  Many of our clients fall into the category of people the Centers for Disease Control and Prevention deemed particularly vulnerable to covid-19....  Most of them were convicted of nonviolent offenses.  They must be safely released under public health protocols, some even temporarily, to spare them a high risk of death.

It is too late for the crisis to be entirely averted, but the worst can be prevented if Congress and Attorney General William P. Barr act with urgency.  So far, however, Barr and federal prosecutors have opposed even modest efforts to reduce the prison population.  In courtrooms across the country, when lawyers seek bail or compassionate release for vulnerable people accused or convicted of nonviolent offenses, federal prosecutors have vigorously opposed the requests — even in cases where people’s sentences are near completion.  In nearly every case, prosecutors are making the same argument that Barr advanced in a recent statement: that inmates are safer in prison than they would be at home. It is an absurd claim, contradicted by science and fact....

The attorney general has the authority to rapidly transfer vulnerable people to home confinement; Congress expressly equipped Barr to use this authority broadly with passage of the Cares Act.  But for reasons we cannot fathom, he failed to immediately use this lifesaving authority.  On March 26, Barr issued a policy that purported to expand the use of home confinement but, rather than helping to release people, erected new hurdles to transferring our clients to safety.  On April 3, he issued a memorandum full of mixed messages.  Although he directed the Bureau of Prisons to act “with dispatch” to increase the use of home confinement, he named only three prisons and “others similarly affected” as deserving priority.  He still does not seem to get it: Every prison and jail requires immediate attention.  Altogether, Barr’s guidance has been muddled and arbitrary, bearing little connection to the enormity of the crisis or threat to public safety.

Because Barr is obstructing reasonable efforts to release vulnerable people, Congress must act. Three simple, temporary provisions that could be set to expire after the covid-19 emergency passes would do enormous good.  First, bail should be presumed for anyone awaiting trial or sentencing absent credible evidence that the person poses a specific threat of violence.  Second, for anyone already sentenced, judges should consider temporary release for the duration of the public health emergency.  Third, vulnerable people seeking court-ordered compassionate release should not be subject to Bureau of Prisons administrative hurdles. 

April 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Yet another Texas execution postponed due to coronavirus

As reported in this new AP piece, headlined "4th Texas execution delayed in midst of virus outbreak," administration of the death penalty in the US continue to be halted amidst the coronavirus pandemic.  Here is more:

A fourth scheduled execution of a Texas death row inmate was delayed Monday because of the coronavirus spread around the state.  Billy Joe Wardlow’s execution was postponed from April 29 to July 8.

Wardlow, 45, was condemned for the June 1993 fatal shooting of 82-year-old Carl Cole during a robbery at his home in Cason, located about 130 miles (209 kilometers) east of Dallas....

The execution date was changed by state District Judge Angela Saucier of Titus County in East Texas.  While Saucier didn’t mention COVID-19 in her order, Morris County District Attorney Steve Cowan had requested the change citing the statewide disaster declaration due to the virus.  He also cited three other executions the Texas Court of Criminal Appeals delayed in March and earlier this month. Wardlow’s attorneys had requested the execution date instead be withdrawn, which would have resulted in a new date much later than July 8.

Some prior related capital COVID posts:

April 7, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Monday, April 6, 2020

Latest BOP data has another big spike in COVID cases, and ugly press reports and lawsuits now part of story

Late yesterday, the BOP's COVID-19 Update page reported, as of April 5, 138 federal inmates and 59 federal prison staffers had tested positive for the coronavirus.  As of the early evening of April 6, that page now reports 196 inmates and 63 staffers positive for COVID-19.  Here is where these latest BOP numbers come from:

(Inmate) 04/06/2020 - USP Atlanta (10); FCI Bennettsville; MDC Brooklyn (2); FCI Butner Low (14); FMC Butner; FCI Butner Medium I (39); USP Canaan; FMC Carswell; FCI Cumberland; FCI Danbury (22); FCI Elkton (8); FCI Forrest City Low (9); FCI Forrest City Medium (2); USP Lompoc (23); FCI Milan (3); MCC New York (4); FCI Oakdale I (22); FCI Otisville; FCI Yazoo City Low (2); FCI Yazoo City Medium (6); USP Yazoo City (14); RRC Brooklyn, NY (4); RRC Chicago, IL; RRC New Orleans, LA; RRC Phoenix, AZ; RRC St Louis, MO; RRC Wilmington, DE; FLM Guam.

(Staff) 04/06/2020 - Atlanta, GA (3); Brooklyn, NY (6); Butner, NC; Waymart (Canaan), PA; Chicago, IL (3); Danbury, CT (7); Lisbon (Elkton), OH; Forrest City, AR Low (2); Forrest City, AR Medium (2); Fort Dix, NJ; Leavenworth, KS; Lompoc, CA (5); Milan, MI; New York, NY (6); Oakdale, LA (4); Otisville, NY (3); Ray Brook, NY (6); Talladega, AL (3); Tucson, AZ; Yazoo, MS Low (2); Yazoo, MS Medium; Central Office, Washington, DC; Grand Prairie Office Complex, Grand Prairie, TX; Southeast Regional Office, Atlanta, GA.

As this list grows, so do media stories (and the first big lawsuit) about the problems created by COVID for federal prisons:

From the Wall Street Journal, "Coronavirus Inside Oakdale Prison: ‘Our Sentences Have Turned Into Death Sentences’"

From the News & Observer, "Coronavirus cases surge at Butner prison complex in NC, county official reports"

From Canton Rep, "Coronavirus: DeWine sending National Guard to Elkton federal prison east of Canton after 3 deaths"

And from ABC News, "ACLU seeks release of federal prison inmates where 5 died: A new class-action lawsuit demands the release of hundreds of high-risk inmates at a federal prison in Louisiana where the coronavirus has claimed the lives of five prisoners and infected nearly two dozen others"

April 6, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Attorney General Barr instructs federal prosecutors to consider "vulnerability to COVID-19" when litigating pre-trial detention issues

As reported in this new Politico piece, "Attorney General Bill Barr is taking another step to adjust the federal criminal justice system to the ongoing coronavirus pandemic, encouraging prosecutors to consider the dangers posed by sending a defendant to await trial in jail as the virus sweeps into such facilities."  Here is more:

Barr sent a memo Monday to top federal prosecutors across the country urging them to consider not only the risks a defendant might face in detention, but the risk inherent in increasing the jail population at a time when cases of the virus are on the increase.

“You should now consider the medical risks associated with individuals being remanded into federal custody during the COVID-19 pandemic,” Barr wrote in his two-page missive. “Even with the extensive precautions we are currently taking, each time a new person is added to a jail, it presents at least some risk to the personnel who operate that facility and to the people incarcerated therein.”

While Barr’s directive seems intended to prod prosecutors to show more flexibility in considering release, bail or home confinement pending trial, the memo is replete with caveats and warnings that defendants who pose a threat to public safety still need to be detained despite the challenges the virus is creating for jails and prisons nationwide....

The new directives from Barr come as the Justice Department is increasingly besieged with lawsuits, writs and legal motions seeking release of individual inmates as well as large classes of prisoners considered most vulnerable to serious illness or death from Covid-19.

As of Sunday, the federal Bureau of Prisons reported 138 inmates have been confirmed as infected with the virus.  Eight deaths from it have been recorded.  Barr’s memo from Friday urged prison official to make a priority of considering early releases for three prison complexes suffering serious outbreaks — those in Oakdale, La., Elkton, Ohio and Danbury, Conn.

One new suit filed Monday seeks release of prisoners at the Oakdale complex considered at highest risk from the illness.

The full text of this new two-page Barr memo is available at this link.

April 6, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Brennan Center urges all Governors to use executive authority to "release vulnerable people who pose no risk to public safety from incarceration"

The title of this post would make plenty of sense even in a world without COVID, as vulnerable people who pose no risk to public safety really ought not be kept behind bars even in the best of times.  But, of course, right now we live in a world with COVID, and that has prompted the Brennan Center to produce this new seven-page letter, addressed to "the Honorable Governors of the fifty states," which includes these passages at the outset:

However, the almost 2 million people behind bars at the county and state level, plus the thousands of employees who work in correctional institutions, face an even greater risk of illness and death than the general public.  We write today to urge you to use your full authority as Governors to release as many people as possible from incarceration, provided they do not pose serious public safety threats, for the duration of the pandemic.  This effort should focus on people who are especially vulnerable to infection.  Specifically, we recommend you take the following steps, which we explain in depth below:

• Make full use of your clemency authority to commute the sentences of vulnerable people to time served, allowing their immediate release, or fashion other appropriate relief;

• Expand your States’ “good time credit” or equivalent programs to reduce overall incarceration;

• Work with state prosecutors to keep people who have been convicted of crimes, but not yet sentenced, out of prison for the duration of this health crisis; and

• Take steps to limit the damaging impact of criminal justice debt, including but not limited to court fees and fines.

The letter includes this partial accounting of some steps that have already been taken in some jurisdictions:

Already, some state leaders have acted to prevent the spread of Covid-19 in their correctional systems. For example, in Illinois, Governor J.B. Pritzker issued an executive order stopping the Illinois Department of Corrections from admitting new people into prison.  On March 22, Governor Jared Polis of Colorado signed an executive order ensuring detention centers reduce the number of people meeting in groups in “any confined indoor or outdoor space,” such as housing unit common areas.  In New York, Governor Andrew Cuomo issued an order on March 27th to release approximately 1,100 people from prisons and jails, specifically non-serious parole violators.  Iowa’s Department of Corrections is expediting the release of about 700 incarcerated people who have been determined eligible by the Iowa Board of Parole in addition to ensuring that those released have a safe place to stay.  And California is granting early release to 3,500 incarcerated individuals in an attempt to reduce overcrowding in state prisons during the COVID-19 pandemic.  The accelerated prison discharges apply to those who were set to be released within the next 60 days.

April 6, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Exciting new (COVID-free) reduction of LWOP sentence, based in part on "sentencing disparity," using § 3582(c)(1)(A) in US v. Millan

In this post a few weeks ago, just before the COVID-19 outbreak became the urgent basis for lots of sentence reductions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A), I flagged a number of new positive rulings granting sentencing reductions using 3582(c)(1)(A) on various grounds.  I am now pleased to be able spotlight another great ruling that adds to the list of reasons (other than COVID) that have now served as the basis for a sentence reduction, even of a life sentence. 

I must disclose that this new ruling, in US v. Millan, No. 91-CR-685 (LAP) (SDNY April 6, 2020) (download below), is especially meaningful to me because I had the honor of helping Harlan Protass a bit with the motion papers.  But I think all those working on sentence reduction motions will find value in the 45-page Millan opinion's discussion of the factors that justified reducing Eric Millan's sentence from LWOP to time served of 28 years.  I recommend the opinion in full, and the opening and closing paragraphs highlight the essentials:

Before the Court is Eric Millan’s motion, pursuant to 18 U.S.C. § 3582(c)(1)(A), for an Order reducing his life sentence (of which he has already served more than 28 years) to time served.1 The Government opposed the motion, and the parties filed additional letters. For the reasons that follow, the motion is granted....

Mr. Millan’s extraordinary rehabilitation, together with his remorse and contrition, his conduct as model prisoner and man of extraordinary character, his leadership in the religious community at FCI Fairton, his dedication to work with at-risk youth and suicide prevention, and the support of BOP staff at FCI Fairton, including their opinion that if released, Mr. Millan would be a productive member of society and no danger to others, and the sentencing disparity that would result from further incarceration all constitute extraordinary and compelling reasons justifying a reduction in sentence.  Accordingly, for all of the foregoing reasons, pursuant to 18 U.S.C. § 3582(c)(1)(A), Eric Millan’s motion for a reduction of sentence is granted, and his life sentence is reduced to time served.

Download US v. Millan 91-CR-685 (LAP). Order Granting Compassionate Release

As the title of this post highlights, I think it is especially notable and important that the court stressed "the sentencing disparity that would result from further incarceration" as one of the bases for finding that this case involved "extraordinary and compelling reasons justifying a reduction in sentence."  Many persons who are serving the most extreme federal sentences have often been subject to a mandatory minimum term or a trial penalty or some other case-processing sentencing reality that has resulted in a much longer sentence for one defendant than has been served by a number of similarly situated defendants.  Given that Congress stressed to judges in § 3553(a)(6) "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," this kind of application of § 3582(c)(1)(A) seems to be a sound and sensible way to remedy problematic sentencing disparities in appropriate cases like Eric Millan's.

UPDATE: I learned this afternoon of another (COVID-free) sentence reduction ruling today in US v. Decator, No. CCB-95-0202 (D. Md. April 6, 2020) (download below).  Here is how this opinion starts and some key passages:

Kittrell Decator is a federal prisoner who is serving a 633-month sentence for convictions stemming from his participation in several armed bank robberies in the early 1990s. To date, Decator has served over 25 years of his sentence. Now pending is Decator’s motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (the “compassionate release” statute). The government opposes the motion, and Decator has replied. For the reasons explained below, the motion will be granted and Decator’s sentence reduced to time served....

Multiple district courts have reasoned that “the First Step Act’s change in how sentences should be calculated when multiple § 924(c) charges are included in the same indictment constitutes an extraordinary and compelling reason under 18 U.S.C. § 3582(c)(1)(A).” See United States v. Owens, No. 97-CR-2546-CAB, ECF 93 at 4 (S.D. Cal. Mar. 20, 2020) (collecting cases). The court agrees with this reasoning. The fact that Decator, if sentenced today for the same conduct, would likely receive a dramatically lower sentence than the one he is currently serving, constitutes an “extraordinary and compelling” reason justifying potential sentence reduction under § 3582(c)(1)(A)(i)....

The court acknowledges that Decator’s offenses were indeed serious. While no one was physically injured, Decator’s actions caused psychological pain to his victims. The court believes that the 25-plus years in prison Decator has already served reflect the seriousness of his conduct and demonstrate the need for deterrence, public safety, and respect for the law. But Decator’s continued incarceration would be both disproportionate to the seriousness of his offense and to what Congress now deems appropriate for this kind of conduct.

Download Decator Decision

April 6, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Reviewing more headlines from more states about coronavirus cases among prisoners and prison staff

Just three weeks ago, starting with posts here and here, I began flagging new reports of prisoners and staffers testing positive for COVID-19 in multiple states.  Now, sadly, I suspect there is not a state in the nation that does not some have COVID cases somewhere within its correctional populations or staff.  Here is a round up of just some of the headlines I saw from some jurisdictions this morning (with a bit of extra emphasis on states I have not noted before in these round-ups):

Federal: "Inmates, Staff On Edge As COVID-19 Spreads Through Federal Prisons"

Alabama: "Alabama prison system’s COVID-19 plan anticipates widespread infection, deaths, National Guard intervention"

Florida: "‘Ticking time bomb:’ Florida acknowledges first inmate coronavirus case — and then a second"

Illinois: "Cook County Jail Now Reports 234 Inmates Have Tested Positive for Coronavirus"

Kansas: "Lansing prison announces more COVID-19 cases"

Michigan: "Why coronavirus is running rampant in Michigan prisons

New Hampshire: "Employee at NH State Prison for Men tests positive for COVID-19, officials say"

New Jersey: "Inmate says she was left ‘basically for dead’ in room at N.J. prison after getting sick amid coronavirus outbreak"

New York: "First Rikers virus-positive fatality was jailed on technicality"

North Carolina: "7 state prison inmates in NC have now tested positive for COVID-19"

Ohio: "Ohio inmate alleges COVID-19 outbreak in prison, lack of testing, threats of retaliation"

South Carolina: "Inmate at SC jail tests positive for coronavirus, 35 more in isolation, cops say"

Tennessee: "First state prison inmate tests positive"

Texas: "Texas Dept of Criminal Justice provides update on COVID-19 cases in prisons"

Virginia: "13 confirmed cases of inmates with the coronavirus in Virginia state facilities"

I remain depressingly confident that this is a woefully incomplete the COVID-19 challenges that are likely facing every jurisdiction in the US.

April 6, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

SCOTUS upholds, by vote of 8-1, traffic stop after run of vehicle plate shows revoked driver's license

The Supreme Court this morning handed down its opinion in Kansas v. Glover, No. 16-556 (S. Ct. Apr. 6, 2020) (available here). Justice Thomas delivered the opinion of the Court, which start this way:

This case presents the question whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license.  We hold that when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable.

The short majority opinion is sure at the end to reiterate that "the ultimate touchstone of the Fourth Amendment is reasonableness;" the Court makes sure to "emphasize the narrow scope of our holding" by stressing "the presence of additional facts might dispel reasonable suspicion." Ergo, keep litigating.

A five-page concurrence authored by Justice Kagan and joined by Justice Ginsburg makes an interest collateral consequences point. Here is an excerpt (with cites removed):

I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws.  Consider, for example, if Kansas had suspended rather than revoked Glover’s license.  Along with many other States, Kansas suspends licenses for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support.  Indeed, several studies have found that most license suspensions do not relate to driving at all; what they most relate to is being poor. So the good reason the Court gives for thinking that someone with a revoked license will keep driving — that he has a history of disregarding driving rules — would no longer apply.

A lengthy concurrence authored by Justice Sotomayor gets started and ends this way:

In upholding routine stops of vehicles whose owners have revoked licenses, the Court ignores key foundations of our reasonable-suspicion jurisprudence and impermissibly and unnecessarily reduces the State’s burden of proof. I therefore dissent....

Vehicle stops “interfere with freedom of movement, are inconvenient, and consume time.” Prouse, 440 U. S., at 657.  Worse still, they “may create substantial anxiety” through an “unsettling show of authority.” Ibid.  Before subjecting motorists to this type of investigation, the State must possess articulable facts and officer inferences to form suspicion. The State below left unexplained key components of the reasonable-suspicion inquiry.  In an effort to uphold the conviction, the Court destroys Fourth Amendment jurisprudence that requires individualized suspicion.  I respectfully dissent.

April 6, 2020 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, April 5, 2020

Bureau of Prisons provides update on its work to implement increased home confinement in response to COVID-19

With thanks to readers who made sure I did not miss this news on a Sunday night, the federal Bureau of Prisons has posted here a new memo titled "Update on COVID-19 and Home Confinement."  Here is the full text with emphasis and links from the original:

In response to COVID-19, the Bureau of Prisons (BOP) has instituted a comprehensive management approach that includes screening, testing, appropriate treatment, prevention, education, and infection control measures.

The BOP has increased Home Confinement by over 40% since March and is continuing to aggressively screen all potential inmates for Home Confinement. On April 3, the Attorney General enacted emergency authority under the CARES Act, to further increase Home Confinement.

Given the surge in positive cases at select sites and in response to the Attorney General's directives, the BOP has begun immediately reviewing all inmates who have COVID-19 risk factors, as described by the CDC, starting with the inmates incarcerated at FCI Oakdale, FCI Danbury, FCI Elkton and similarly-situated facilities to determine which inmates are suitable for home confinement.

Inmates do not need to apply to be considered for home confinement. Case management staff are urgently reviewing all inmates to determine which ones meet the criteria established by the Attorney General. The Department has also increased resources to review and make appropriate determinations as soon as possible.

While all inmates are being reviewed for suitability, any inmate who believes they are eligible may request to be referred to Home Confinement and provide a release plan to their Case Manager. The BOP may contact family members to gather needed information when making decisions concerning Home Confinement placement.

Since the release of Attorney General Barr's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 566 inmates on home confinement. There are currently 3,419 inmate on home confinement and 7,199 inmates in Residential Reentry Centers (RRCs). To further assist inmates in pre-release custody, the BOP has waived financial requirement to pay subsistence fees.

We are deeply concerned for the health and welfare of those inmates who are entrusted to our care, and for our staff, their families, and the communities we live and work in. It is our highest priority to continue to do everything we can to mitigate the spread of COVID-19 in our facilities.

The BOP appreciates the dedication and significant work of BOP staff in carrying out their difficult mission in the face of the public emergency. The BOP would also like to thank the Attorney General, the CDC, the Public Health Service, and our state and local community partners for their support and assistance in the BOP's COVID-19 response.

A few of many prior related posts:

April 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Latest BOP numbers with still more COVID cases at still more federal facilities

The BOP's COVID-19 Update page has been updated to reveal that, as of April 5, there are 138 federal inmates and 59 federal prison staffers who have tested positive for the coronavirus.  Here is where these latest BOP numbers come from:

(Inmate) 04/05/2020 - USP Atlanta (9); FCI Bennettsville; MDC Brooklyn; FCI Butner Low (7); FMC Butner; FCI Butner Medium I (3); USP Canaan; FMC Carswell; FCI Danbury (21); FCI Elkton (7); FCI Forrest City Low (x); FCI Forrest City Medium (x); USP Lompoc (17); FCI Milan (3); MCC New York (4); FCI Oakdale I (22); FCI Otisville; FCI Yazoo City Medium (5); FCI Yazoo City Low (2); USP Yazoo City (11); RRC Baltimore; RRC Brooklyn, NY (4); RRC Chicago, IL; RRC Dallas, TX; RRC Phoenix, AZ; RRC St Louis, MO; FLM Guam.

(Staff) 04/05/2020 - Atlanta, GA (3); Brooklyn, NY (5); Butner, NC; Waymart (Canaan), PA; Chicago, IL (3); Danbury, CT (7); Lisbon (Elkton), OH; Forrest City, AR Low (2); Forrest City, AR Medium (2); Fort Dix, NJ; Leavenworth, KS; Lompoc, CA (2); Milan, MI; New York, NY (6); Oakdale, LA (4); Otisville, NY (2); Ray Brook, NY (7); Talladega, AL (3); Tucson, AZ; Yazoo, MS Low (2); Yazoo, MS Medium; Central Office, Washington, DC; Grand Prairie Office Complex, Grand Prairie, TX; Southeast Regional Office, Atlanta, GA.

By my count, this list now shows 27 different federal prison facilities with inmates who have tested positive and 24 different communities with federal prison staff who have tested positive.  The numbers of grown steadily over the last two weeks, and I have no reason to believe they will not continue to do so.

April 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

What can and should we really learn from crime data in the midst of a pandemic and lockdowns?

The question in the title of this post is prompted by two new articles spotlighting declines in crime amidst our crazy times: from The Hill, "Crime rates drop across the nation amid coronavirus"; from USA Today, "Crime rates plummet amid the coronavirus pandemic, but not everyone is safer in their home."  Here are some excerpts from this second piece:

Crime rates plunged in cities and counties across the U.S. over the second half of March as the coronavirus pandemic drove millions of residents to stay inside their homes.  Police logged dramatically fewer calls for service, crime incidents and arrests in the last two weeks of March than each of the previous six weeks, a USA TODAY analysis of crime data published by 53 law enforcement agencies in two dozen states found.  The analysis is among the largest studies measuring the impact of the coronavirus on crime and policing.

Massive drops in traffic and person stops — as much as 92% in some jurisdictions — helped drive sharp declines in drug offenses and DUIs.  Thefts and residential burglaries decreased with fewer stores open and homes unoccupied, and some agencies logged fewer assaults and robberies. Bookings into each of nearly two dozen county jails monitored by the news organization fell by at least a quarter since February.

At the same time, calls for domestic disturbances and violence surged by between 10% and 30% among many police agencies that contributed data. Several also saw upticks in public nuisance complaints such as loud noise from parties.  The Baltimore Police Department, for example, received 362 loud music complaints in the last two weeks of March, nearly matching its total for all of February.

The trends reflect both a purposeful reduction in police activity and officer-initiated stops and the impact of stay-at-home orders that have closed huge swaths of Main Street and pushed people into their homes and out of traditional crime hotspots, such as bars, clubs and social events....

The study compared weekly totals between Feb. 2 and March 28.  Reporters analyzed daily calls for service and incident data published by 30 local police and sheriff’s agencies that range from those covering big cities like Dallas to small communities like St. John, Indiana.  Analysis of arrests drew from inmate logs at nearly two dozen county jails in six states, which local USA TODAY Network newspapers already track daily.

Many police departments say they are intentionally arresting fewer people to avoid the potential spread of coronavirus in jails.  Police in Delray Beach, Florida, are reducing proactive policing, such as drug busts.  In nearby Gainesville, Florida, officers are increasingly issuing summons instead of making arrests for minor offenses, Police chief inspector Jorge Campos said. “It’s not that we’re not enforcing (the law),” Campos said.  “It’s that we’re finding alternative ways of dealing with the issue rather than make physical arrests.”...

In the counties reviewed by USA TODAY, the average week included about 300 DUI bookings.  Now, it’s at about 100.  Senior citizens arrests are about a sixth of what they were in February.  Several police departments also recorded significant drops in drug, narcotics and alcohol crimes — some of the most common ways people land in jail in America, according to FBI data.  Such incidents over the second half of March fell 76% in Denver; 87% in Providence, Rhode Island; and 45% in Seattle, the epicenter of the nation’s first major coronavirus outbreak, data shows.

Drug charges often result from traffic stops....  But such stops have ground to a near halt in some regions across the country in the last two weeks.  In Cincinnati, police logged an average of 384 traffic stops per week before mid-March but 39 per day after — a 90% drop.  In Santa Monica, California, traffic stops fell from 182 a week to 14.  They fell 79% in Baltimore and 46% in Virginia Beach, Virginia.

In many regions, the traffic-stop declines dovetailed with fewer DUI incidents, which likely tanked after bars closed, Seattle police spokesman Patrick Michaud said.  Police in Virginia Beach, Montgomery County and Seattle each recorded fewer than half as many DUIs in the second half of March compared to previous weeks on average.  “There are just less crimes of opportunity when the opportunity all but disappears because everyone is spending time indoors,” said Michaud, adding that residential burglaries also have decreased in Seattle in recent weeks.

This article highlights how changes in citizen behavior (driven in part by shutdowns) are part of this new crime data story, but it also reveals how changes in police behavior also account for new criminal justice realities. I am hopeful (but not really optimistic) that the positive aspects of changes in both citizen and police behavior might persist after the pandemic passes.

Prior related post:

April 5, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

Saturday, April 4, 2020

Misguided dicta from Third Circuit panel on procedural aspects of sentence reduction motions under § 3582(c)(1)(A)

In many prior posts since the FIRST STEP Act was enacted, I have made much of the provision that allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without needing a formal motion brought and supported by the Bureau of Prisons.  Well before anybody had heard of COVID-19, this provision seemed so very significant because, if applied appropriately and robustly, it could enable many hundreds (and perhaps many thousands) of federal prisoners to have their excessive federal prison sentences reduced.

Of course, as I have highlighted in recent posts here and here, sentence reduction motions under § 3582(c)(1)(A) have become hugely important in the coronavirus world of federal sentencing.  As SDNY Chief Judge Coleen McMahon astutely stated this week in US v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) (download here), "releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19."   As noted in this post, FAMM has wisely urged tens of thousands of federal prisons to consider pursuing sentence reduction motions under § 3582(c)(1)(A) during this terrible time when any federal prison term can become a potential death sentence.

But, importantly, a procedural issue can complicate sentence reduction motions under § 3582(c)(1)(A) because the text now now provides: "the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment..."  In other words, this text provides that a sentence reduction motion can be acted upon by the court (1) immediately if brought by BOP, or (2) as soon as a defendant requests such a motion and that request is formally/finally denied by BOP or 30 days has lapsed, "whichever is earlier."  Because the Director of the Bureau of Prisons rarely brings motions on behalf of prisoners and because BOP's administrative process for reviewing requests is historically quite slow, this provision has often functionally meant that courts would consider these motions 30 days after a BOP request is made by the defendant.

Under normal circumstances, this procedural provision struck me as a reasonable way to give the Bureau of Prisons a first opportunity to consider supporting a sentence reduction motion before the defendant heads to court. (That said, I have heard various ugly reports about the BOP treating an inmate poorly in various ugly ways after he has requested  a sentence reduction motion).  But in a COVID-19 word in which every day brings increasing positive cases and deaths among federal inmates and staff, waiting 30 days to rule on a compelling sentence reduction motion under § 3582(c)(1)(A) could literally have deadly consequences for an inmate and others he comes into contact with.  (It was only roughly 30 days ago that the US had its first COVID death, we could be over 10,000 US deaths by the end of this weekend.)   Consequently, I was not surprised to see, in US v. Perez, No. 17 Cr. 513-3 (AT) (SDNY Apr. 1, 2020) (download here), a federal judge waive the "30-day lapsing" requirement based on the determination that, for the defendant, "remaining incarcerated for even a few weeks increases the risk that he will contract COVID-19," and so "requiring exhaustion ... would be directly contrary to the purpose of identifying and releasing individuals whose circumstances are 'extraordinary and compelling'."  

This extended discussion is a prelude to noting a troubling opinion handed down by a Third Circuit panel in United States v. Raia, No. 20-1033 (3d Cir. Apr. 2, 2020) (available here).  This case involved a 68-year-old New Jersey politician given a three-month sentence who reported to a federal prison on March 3 while the government was pursuing an appeal of his sentence as to low.  With his appeal pending, the defendant first "asked BOP to move for compassionate release on his behalf. But before BOP responded, and before thirty days passed, Raia filed his own motion with the District Court for compassionate release given the present pandemic caused by COVID-19. The district court dismissed the motion because it decided the "pending appeal divested it of jurisdiction," but it also indicated it would grant the motion if it could.

In the Third Circuit, Raia did not appeal this order but instead "filed a motion asking this Court to decide his compassionate release motion [or] to return jurisdiction to the District Court by dismissing the government’s appeal without prejudice [under FRAP 3(a)(2)." In response, the Third Circuit panel starts on solid ground: "We cannot decide Raia’s compassionate-release motion in the first instance. Section 3582’s text requires those motions to be addressed to the sentencing court." That strikes me as right not only as a matter of statutory text, but also as a matter of sound policy: district motions for sentence reductions ought to be addressed in the first instance by sentencing courts, not appeals courts. Continuing to address points raised by Raia, the panel then says (cites and quote removed): "Nor can we dismiss the government’s appeal under Rule 3(a)(2). Rule 3(a)(2) dismissal is a sanction for failing to comply with procedural rules. Here, there is nothing the government has failed to do."

Having addressed are rejected claims by the appellant, things go sideways as the Third Circuit panel says the following (which I am calling dicta it does not respond to claims actually brought by the litigant):

We could, however, remand the case to the District Court while retaining jurisdiction over the government’s appeal under Rule 12.1.  That would allow the District Court to consider Raia’s compassionate-release request in the first instance.

But any remand would be futile.  As noted, Raia failed to comply with § 3582(c)(1)(A)’s exhaustion requirement: BOP has not had thirty days to consider Raia’s request to move for compassionate release on his behalf, nor has Raia administratively exhausted any adverse decision by BOP.  Although the District Court’s indicative ruling did not mention the exhaustion requirement, it presents a glaring roadblock foreclosing compassionate release at this point.

Accordingly, since Rule 3(a)(2) is inapt and since remanding the matter under Rule 12.1 would be futile, we will deny Raia’s motion outright.

This "futile" language here creates the problematic impression that "30-day lapsing/exhaustion" language in 18 U.S.C. § 3582(c)(1)(A) is tantamount to a jurisdictional bar to the granting of a sentence reduction motion.  But the language and structure of this requirement makes it appear much more like what the Supreme Court calls "nonjurisdictional claim-processing rules."  Fort Bend County v. Davis, No. 18-525 (S. Ct. June 3, 2019) (available here).  With COVID-19 making every day matter, this is a critically important distinction because claim-processing rules can be forfeited if not raised by a party and might be subject to equitable exceptions.  In other words, if and when the "30-day lapsing/exhaustion" language is properly understood by courts as a claim-processing rules, then courts can (1) ask federal prosecutors if they are willing to waive/forfeit the requirement in a particular case, and courts may be able (2) on their own, as in the Perez case, to decide that the requirement need not be meet given the equities of a particular case.

I hope that counsel might be seeking reconsideration or even an emergency rehearing en banc in Raia.  Because it is not at all clear that a remand would be futile, and especially because the Third Circuit panel here spun off some misguided dicta on an issue that appears not to have even been briefed, this portion of the opinion ought to be retracted at least until a court considers these (now life-and-death) issues with the assistance of full briefing.

UPDATE: I just noticed that the same panel that decided Raia also handed down last week a more defendant-friendly COVID opinion in United States v. Roeder, No. 20-1682 (3d Cir. Apr. 1, 2020) (available here).  Here is how this (unpublished) opinion starts and ends:

Calvin Roeder filed an emergency appeal seeking review of the District Court’s denial of his motion to postpone his self-surrender date in light of the COVID-19 pandemic. We reversed the District Court’s denial on March 29, 2020. We now provide the reasons for our order....

Under ordinary circumstances, it would be our preference to vacate the District Court’s order and permit it to provide substantive conclusions concerning the merits of Roeder’s motion.  These are not, however, ordinary times.  In light of the exigent circumstances surrounding the COVID-19 pandemic and the timing of our ruling (less than 24 hours before Roeder’s scheduled surrender date), we were compelled to grant relief and reverse the District Court’s order — even though the existence of a widespread health risk is not, without more, a sufficient reason for every individual subject to a properly imposed federal sentence of imprisonment to avoid or substantially delay reporting for that sentence.
While the COVID-19 pandemic has given rise to exceptional and exigent circumstances that require the prompt attention of the courts, it is imperative that they continue to carefully and impartially apply the proper legal standards that govern each individual’s particular request for relief.  If, in the future, Roeder seeks an additional modification of his self-surrender date, we expect that the District Court will provide an adequately reasoned decision so that, if an appeal follows, we may engage in a thorough appellate review.

April 4, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, April 3, 2020

Attorney General Barr issues new memo calling for BOP to "move with dispatch" to get vulnerable inmates out of federal prison COVID hot-spots

As reported in this new Politico piece, headlined "Barr to speed releases at federal prisons hard hit by virus," it appears that the US Attorney General is coming to understand the dire situation being created by COVID-19 in federal prisons. Here are tonight's important new developments

Attorney General Bill Barr is ordering federal prison officials to intensify their efforts to release “vulnerable” inmates at three prison complexes that are struggling to contain major outbreaks of the coronavirus.

Barr said he’s seeking to speed the process of sending selected inmates at prisons in Danbury, Conn., Oakdale, La., and Elkton, Ohio to home confinement because of the danger serious levels of infection at those facilities pose to elderly prisoners and those with pre-existing health conditions.

“We are experiencing significant levels of infection at several of our facilities,” Barr said in the new memo dated Friday and obtained by POLITICO Friday night. “We have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions.”

Barr also said he was exercising for the first time expanded release authority Congress granted him in the stimulus bill known as the Cares Act that was signed into law by President Donald Trump last Friday.

Under previous law, federal prisoners were only eligible for home confinement after they’d completed 90 percent of their sentences. However, the new legislation allows for earlier releases if the attorney general formally declares an emergency, which he did Friday.

“The CARES Act now authorizes me to expand the cohort of inmates who can be considered for home release upon my finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons,” Barr wrote. “I hereby make that finding and direct that … you give priority in implementing these new standards to the most vulnerable inmates at the most affected facilities.”...

A total of 522 inmates were moved to home confinement following Barr’s directive last week, according to the Bureau of Prisons.

Barr’s public comments supporting early releases for some inmates seemed to be in tension with remarks Trump made Thursday, where he lashed out at state and local officials for endangering the public by releasing convicted criminals and said he might even step in to try to halt such releases....

Barr's new directive stresses that public safety concerns must be taken into account when considering whom to release. "While we have a solemn obligation to protect the people in BOP custody, we also have an obligation to protect the public," the attorney general wrote. "That means we cannot simply release prison populations en masse into the streets. Doing so would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses."

While Barr emphasized that early releases must be assessed on a case-by-case basis, he said that some precautions normally taken in such situations could be waived in the current crisis, such as GPS monitoring for those being sent home.

A few of many prior related posts:

April 3, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Latest BOP numbers with ever growing number of COVID cases (and deaths) in ever growing number of federal facilities

Last Friday (March 27) as detailed in this post, the BOP's COVID-19 Update page was reporting "only" 14 federal inmates and 13 federal prison staffers had tested positive for COVID-19.  This Friday (April 3), BOP has updated its cases reporting that 91 federal inmates and 50 federal prison staffers have tested positive.  Here is where these latest BOP numbers come from:

(Inmate) 4/03/2020 - USP Atlanta (5); MDC Brooklyn; FCI Butner Low (7); FMC Butner; FCI Butner Medium I (3); USP Canaan; FCI Danbury (20); FCI Elkton (2); FCI Forrest City Low (2); USP Lompoc (14); MCC New York (4); FCI Oakdale I (18); FCI Otisville; FCI Yazoo City Medium (4); FCI Yazoo City Low; RRC Brooklyn, NY (4); RRC Janesville, WI; RRC Phoenix, AZ; FLM Guam.

(Staff) 4/03/2020 - Atlanta, GA (3); Brooklyn, NY (4); Butner, NC; Chicago, IL (3); Danbury, CT (6); Lisbon (Elkton), OH; Forrest City, AR; Leavenworth, KS (no inmate contact); Lompoc, CA (2); Milan, MI; New York, NY (5); Oakdale, LA (4); Otisville, NY; Ray Brook, NY (6); Talladega, AL (3); Tucson, AZ; Yazoo, MS (2); Central Office, Washington, DC; Grand Prairie Office Complex, Grand Prairie, TX; Southeast Regional Office, Atlanta, GA.

By my count, this list shows 19 different federal prison facilities with inmates who have tested positive and 20 different communities with federal prison staff who have tested positive.  And, as I have said before, there is every reason to fear that these numbers represent the tip of big iceberg.  Plus, as news reports reveal, at least seven federal inmates have dies from COVID-19:

April 3, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)