Sentencing Law and Policy

California working toward accelerating release dates for 3,500 inmates who were to to be released in next two months

This local piece from California report that, "California is granting early release to 3,500 inmates in an effort to reduce crowding as coronavirus infections begin spreading through the state prison system." Here is more:

Lawyers for Gov. Gavin Newsom on Tuesday told a panel of federal judges the state is taking “extraordinary and unprecedented protective measures” to slow the spread of the virus and protect those who live and work within California’s 35 prisons.  The accelerated parole policy — affecting inmates due to be released over the next 60 days — comes in the face of pressure to do much more.

Lawyers representing inmates in long-standing civil rights litigation against the prison system have asked those judges for broader prison releases, as well as protective measures to reduce the threat to older or medically vulnerable inmates not likely to be considered for release.  A court hearing on the emergency motion is set for Thursday.

In court filings, state lawyers said California intends to accelerate parole dates for 3,500 inmates serving terms for nonviolent crimes and already due to be released within 60 days. The releases are to be conducted “within the next several weeks.”

Another day, another round of discouraging COVID news from jails and prisons around the US

In recent posts here and here, I have rounded up just some of the many headlines and news stories that detail how coronavirus cases among inmates and staff are impacting jails and prisons nationwide.  As we close out March, another round-up of these stories proves even more discouraging with news of ever-growing numbers of cases in ever-growing numbers of facilities.  Here is just a sampling of headlines as of mid-afternoon Monday March 31:

California: "Four inmates, 18 workers in California prisons have tested positive for coronavirus"

Connecticut: "Connecticut prisoner tests positive for COVID-19 virus"

Georgia: "Coronavirus is spreading in Georgia prisons"

Illinois: "1st Illinois prison inmate dies of COVID-19, health officials say"

Maryland: "Maryland prison system confirms first coronavirus cases"

Massachusetts: "17 inmates, 4 staff test positive for coronavirus at Bridgewater prison"

Michigan: "How Michigan's prison system is addressing a rising COVID-19 case count: As of Monday morning, 80 inmates and 14 Michigan Department of Corrections employees have the virus."

Minnesota: "First COVID-19 case found in Minnesota prison system"

New York: "Rikers doc: DAs fail to recognize ‘public health disaster’ of coronavirus"

Ohio: "First Positive COVID-19 Test at an Ohio Prison is Worse Than it Seems"

Texas: "Bowie County Judge confirms 2 jail employees test positive for COVID-19"

Wisconsin: "More deputies working in Dane County Jail test positive for coronavirus"

"Returning Citizens Should Get Checks Too"

The title of this post is the title of this recent commentary by Jennifer Doleac, which gets started this way (with links from the original):

Concerns over the rapid spread of coronavirus in jails and prisons have led to calls for inmates’ early release in order to reduce the spread of the virus.  As a result, jail and prison populations are falling dramatically.  There is good reason to release people who aren’t an immediate public safety threat — we are living through an unprecedented health crisis, and saving lives should be our top priority.  However, the rapid release of people from jail and prison, into an economy with skyrocketing unemployment, may set them up for failure.

Releasing people from prison at a time when jobs are scarce increases the likelihood that they will commit another crime and be locked up again.  This is partly because they themselves are unable to find a job, and partly because their friends and family are out of work and less able to provide crucial support.  Our rush to get people out of jails and prisons to protect their health may unintentionally make it harder for them to build stable lives and avoid criminal activity. For the sake of these individuals and their communities, we should move quickly to make sure they have the support they’ll need in the weeks and months ahead.

What should we do?  Send them checks!

People often think that jobs are the key to reducing crime, but recent research suggests that money matters more than employment itself.  Why?  Most directly, giving people money reduces the need to commit financially-motivated crimes, such as theft or robbery.  It also gives people the means to stay away from friends or family who are negative influences or might draw them back into old behaviors.  Extra disposable income also helps people access programs that put them on a permanently-better track — for instance, education or health care — and reduces financial stress that can hamper decision-making.  In practice, the structure that comes with a job doesn’t seem as important as the money that jobs provide.

It’s not obvious that giving people money will always reduce crime: If recipients spend that money on drugs or alcohol, the net effect could be negative.  But several studies show that, on average, more money equals less crime.

Polls showing considerable public support for decarceration in response to COVID-19 crisis

I have seen two distinct reports of distinct polls showing public support for reducing incarceration levels in response to the coronavirus crisis:

From the ACLU, "ACLU Poll Shows Wide-Ranging Support For Releasing Vulnerable People From Jails And Prisons"

The American Civil Liberties Union released today a new poll from Bully Pulpit Interactive that demonstrates far-ranging, bipartisan support for releasing people from prisons and jails as part of the COVID-19 public health response. According to the poll:

• 63 percent of registered voters support releasing people from jails and prisons to stop the spread of COVID-19
• 72 percent of voters support clemency for elderly incarcerated people in the midst of this pandemic

From The Justice Collaborative, "Poll Shows Strong Cross-Ideological Support for Dramatically Reducing Jail and Prison Populations to Slow the Spread of Coronavirus."   Executive Summary from this report: 

• Public health experts agree that jails and prisons pose special risks to the spread of the coronavirus.  These risks extend to the incarcerated, and to the correctional officers, medical professionals, and other people who work inside and visit jails and prisons. Moreover, because these workers and other vendors travel in and out of these facilities, this poses a heightened risk for the general public.

• We found strong, cross-ideological support for the strategy of dramatically reducing jail and prison populations to slow the spread of the coronavirus. Sixty-six percent of likely voters, including 59% of those who are “very conservative,” said that elected officials should be considering measures to reduce overcrowding in prisons and jails as a response to coronavirus.

• Fifty-six percent of voters support releasing people who are within six months of completing their sentence in order to reduce the risk of transmitting the coronavirus within jails and prisons. Support for this includes 52% of “very conservative” voters. 

• Voters also support releasing especially at-risk populations. Fifty-eight percent of voters support releasing incarcerated people who are elderly; while 53% support releasing those whom the Center for Disease Control and Prevention (CDC) has classified as vulnerable, including those with asthma, cancer, heart disease, lung disease, and diabetes.

• Voters also overwhelmingly support reducing unnecessary jail admissions: 63% support encouraging law enforcement to make use of summons or tickets as alternatives to jail where necessary.

House Judiciary Chair Nadler and Subcommittee Chair Bass send letter to Attorney General Barr urging him to protect the most vulnerable federal prisoners and staff from COVID

As detailed in this press release, "House Judiciary Committee Chairman Jerrold Nadler (D-NY) and Subcommittee on Crime Chairwoman Karen Bass (D-CA) sent a letter to U.S. Attorney General William Barr urging him to use the authority granted under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to protect the most vulnerable prisoners and those working in federal prisons from coronavirus (or COVID-19)." The full letter, which runs seven pages, is available at this link and merits a full read. Here are excerpts:

On the evening of March 28, 2020, we sadly learned of the first death of a prisoner in the custody of the federal Bureau of Prisons (BOP) due to COVID-19. The decedent was a 49-year-old African-American man who, according to the BOP’s press release announcing his death, had “long-term, pre-existing medical conditions which the CDC (Centers for Disease Control and Prevention) lists as risk factors for developing more severe COVID-19 disease.”  He was housed in a low-security facility in Oakdale, Louisiana. Reports now indicate that one guard at the same facility is in intensive care due to COVID-19 and there have been positive test results for another 30 prisoners and staff.  This death and the explosion of cases in the Oakdale prison underscore the urgency of taking action to prevent more avoidable deaths of individuals in federal custody.

The Department of Justice (DOJ) and BOP presently have the authority to request, under 18 U.S.C. § 3582(c)(1)(A)(i), that courts modify the sentences of prisoners who present “extraordinary and compelling reasons.”  We call on you, in the most urgent of terms, to do the right thing and exercise this authority and immediately move to release medically-compromised, elderly, and pregnant prisoners in the custody of the BOP.

In addition, we urge that you use every tool at your disposal to release as many prisoners as possible, to protect them from COVID-19.  Along those lines, and as you move forward with planning for and executing the release of what we hope will be an appropriately sizable number of BOP prisoners, we urge you to consider the issues raised below.

On March 27, 2020, the House passed, and President Trump signed into law, the Coronavirus Aid, Relief, and Economic Security Act,” or the “CARES Act.”[6] Among other things, the CARES Act broadens the authority of the Attorney General and the Director of the BOP, during the COVID-19 crisis, to release prisoners to home confinement.[7] We ask that both you and the Director of the BOP interpret and exercise this new authority as broadly as possible, given that thousands of lives are at stake....

Although we were encouraged to see that you have already issued a directive to the Director of the BOP prioritizing home confinement as appropriate in response to the COVID-19 pandemic, your memorandum raises a number of concerns....

We also ask that you collect and maintain comprehensive data about the release of inmates into home confinement in response to the COVID-19 pandemic for the purpose of reporting the information to Congress.  Specifically, we ask that you gather data pertaining to every inmate in BOP and whether they were considered for release and if not, why not.  With regards to those who were considered for release, but were ultimately not released, please provide an explanation for why they were not released.  Please ensure that this data is collected and organized in a way that it can be searched in relation to demographic factors, such as age, race and ethnicity, and gender.

Finally, it goes without saying that we are deeply concerned about what is going on in BOP facilities around the country during this pandemic, especially now that a federal prisoner has died from COVID-19 and reports of increasing numbers of infected prisoners and correctional officers.  In the coming weeks, we hope you will institute aggressive measures to release medically-compromised, elderly and pregnant prisoners, as well as universal testing in BOP facilities -- to protect everyone.   As we have told you before, we are ready to work with you to address the needs of prisoners during this difficult time.  We appreciated your response to our earlier letters on the topic of COVID-19.  We look forward to receiving your response to this letter in the same prompt manner.  Urgent action is required because lives depend on it.

Ugly details on COVID realities in federal prison in Louisiana as Bureau of Prisons slowly updates system-wide spread

The Washington Post has this troubling report, headlined "An explosion of coronavirus cases cripples a federal prison in Louisiana," about what is going on the federal prison where the first federal inmate died from contracting the coronavirus.  Here are excerpts:

A federal prison in Louisiana has, within days, exploded with coronavirus cases, leading to the death of one inmate on Saturday, the admission of a guard into a hospital intensive care unit, and positive test results for another 30 inmates and staff.  Patrick Jones, 49, was the first inmate in the Federal Bureau of Prisons diagnosed with the novel coronavirus, which causes covid-19, and the first to die.

At least 60 inmates at the Oakdale prison are in quarantine and an unknown number of staff are self-quarantining at home, said Corey Trammel, a union representative for correctional officers at the 1,700-inmate facility about 110 miles northwest of Baton Rouge. “It’s been simultaneous, just people getting sick back to back to back to back,” Trammel said. “We don’t know how to protect ourselves. Staff are working 36-hour shifts — there’s no way we can keep going on like this.”

The prison bureau is not releasing the names of other infected inmates or staff, citing medical and privacy concerns. Jones complained of a “persistent cough” on March 19, the prison bureau said, and was transported to a hospital where he was diagnosed and placed on a ventilator. The prison bureau also said Jones had “long-term, preexisting medical conditions” that increased his risk of developing the disease. Jones was convicted in 2017 of possession with intent to distribute crack cocaine within 1,000 feet of a junior college. He was serving a 27-year sentence....

Trammel said the prison bureau has been slow to respond to the crisis across the country. The bureau last week banned family and friends from visiting inmates, but the officers’ union had lobbied the federal prison system to take this action for weeks to keep the disease from infiltrating the prison walls.

The Bureau of Prisons updates confirmed coronavirus cases most afternoons on its website, but there has been a lag between cases reported by the officers’ union and prison officials. As of Sunday afternoon, the prison system had only confirmed 14 inmates and 13 staff have tested positive.

At Oakdale, Trammel said staff also asked prison officials — weeks before the first coronavirus case — to shut down a prison labor program within the facility, where more than 100 prisoners make inmate clothing. The program, Trammel said, was not shut down until after the first inmate tested positive. The Bureau of Prisons — which operates 122 prisons with more than 175,000 inmates — did not immediately respond Sunday to a request for comment. Oakdale Warden Rod Myers could also not be reached for comment.

Trammel said he asked the prison bureau on Saturday to send specialized medical teams to the facility to help with staffing shortages. He’s also asking for hazard pay, which would increase their salaries by 25 percent as they respond to the crisis. And he’s asking for more robust protective gear, including masks with respirators and perhaps face shields. “We are bringing inmates to the hospitals and are staying right beside them around the clock,” Trammel said. “All we have is these itty bitty masks — a piece of towel over our faces — and nurses are coming into the room for a few minutes and they are all suited up.”

He also said he believes all Oakdale prison staff have now been exposed to the virus. Days ago, he interacted with an inmate who had a fever and still doesn’t know if the prisoner has received a test. “We should all be in quarantine,” Trammel said. “We should not be going in to spread this monster of a virus.”

Interestingly, BOP on this COVID-19 Update page says it is updating its "dashboard daily at 3:00 p.m." BOP did not seem to do daily updates over the weekend (if only COVID took weekends off).  But, perhaps prodded by this Washington Post piece, it seems BOP did do an update this morning as it now reports that 19 federal inmates and 19 federal prison staffers have tested positive for COVID-19.  Here is where those numbers come from:

(Inmate) 3/29/2020 - MDC Brooklyn; FCC Oakdale (5); USP Atlanta (2); MCC New York (3); FMC Butner; FCI Otisville; RRC Phoenix, AZ; RRC Brooklyn, NY (4); RRC Janesville, WI.

(Staff) 3/29/2020 - Grand Prairie, TX; Leavenworth, KS (no inmate contact); Yazoo, MS (2); Atlanta, GA; Danbury, CT; Butner, NC; Ray Brook, NY; New York, NY (2); Chicago, IL (2); Brooklyn, NY (3); Oakdale, LA (3); Lompoc, CA.

Disconcertingly, the Washington Post piece reports "positive test results for another 30 inmates and staff" from Oakdale, LA, whereas the updated BOP page appears to be reporting only eight positives (five inmates, three staff) in that facility.  I sure would like to be able to trust, and I sure would like for federal prosecutors and judges and defendants to be able to trust, the data coming from the BOP.  But for now I am more inclined to trust my pessimistic instinct that every federal facility has coronavirus problems and these problems seem all but certain to get worse in the days and weeks ahead.

A few of many prior related with a focus on federal facilities posts:

• When and how will federal authorities start systematically modifying federal sentencing and prison realities in response to COVID-19 outbreak? 
• Who in Trump Administration is involved in "actually looking at" using executive action to release "totally nonviolent prisoners"? 
• With lives at stake, when will we start to see mass clemency and compassionate release?  
• "U.S. attorney general seeks to expand home confinement as coronavirus spreads in prisons" 
• FAMM urges AG Barr to use new pending CARES Act provision to move federal prisoners into home confinement
• Will thousands of federal prisoners be eligible for home confinement under AG Barr's new guidelines?
• "Correctional Facilities In The Shadow Of COVID-19: Unique Challenges And Proposed Solutions" 
• "Four Things Every Prison System Must Do Today"
• Federal inmates and staff all around the nation now testing positive for coronavirus 
• Hundreds of former DOJ officials and federal judges urge Prez Trump to commute sentences and create emergency advisory group to respond to COVID-19 challenges 
• Dispiriting review of more COVID news from jails and prisons around the US

UPDATE: This new New York Times piece addresses these topics more generally under the headline "As Coronavirus Spreads Behind Bars, Should Inmates Get Out? Some jails are releasing people as the virus gains a foothold inside, but critics say it is not happening quickly enough to save lives and resources."

 

ANOTHER UPDATE: BOP on this COVID-19 Update page did its afternoon update on Monday, and now reports that 28 federal inmates and 24 federal prison staffers have tested positive for COVID-19.  Here is where those numbers come from:

(Inmate) 3/30/2020 - MDC Brooklyn; FCC Oakdale (7); USP Atlanta (2); MCC New York (3); FMC Butner (2); FCI Otisville; FCI Danbury; FCC Lompoc (3); FCI Elkton (2); RRC Phoenix, AZ, RRC Brooklyn, NY (4); RRC Janesville, WI

(Staff) 3/30/2020 - Grand Prairie, TX; Leavenworth, KS (no inmate contact); Yazoo, MS (2); Atlanta, GA (2); Danbury, CT; Butner, NC; Ray Brook, NY; New York, NY (2); Chicago, IL (2); Brooklyn, NY (4); Oakdale, LA (3); Lompoc, CA; Otisville, NY; Fort Dix, NJ; Talladega AL.

As suggested before, I remain confident that these data serve as an undercount of federal facilities and people impacted by COVID-19.

Justice Sotomayor gets in (last) shot complaining about the Supreme Court's unwillingness to take up challenges to old (vague?) guidelines

In this post a few months ago I flagged an article noting that in "at least 27 cases, Justices Sonia Sotomayor and Ruth Bader Ginsburg have gone out of their way to dissent from their colleagues’ rejection of petitions by 'career offenders'" arguing that the Johnson vagueness ruling made their (pre-Booker) guideline sentences unconstitutional. (The Justices in Beckles decided that post-Booker sentences were not constitutionally problematic because the guidelines were advisory.)

In this morning's SCOTUS order list, these two dissent in another such case, though it seems this may be the last time they will:

19-7755 PATRICK, SCOTT M. V. UNITED STATES

The petition for a writ of certiorari is denied. Justice Sotomayor, with whom Justice Ginsburg joins, dissenting from the denial of certiorari: I dissent for the reasons set out in Brown v. United States, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).  Recognizing that the Court has repeatedly declined to grant certiorari on this important issue — whether the right recognized in Johnson v. United States, 576 U. S. 591 (2015), applies to defendants sentenced under the mandatory Sentencing Guidelines — I will cease noting my dissent in future petitions presenting the question.  I hope, however, that the Court will at some point reconsider its reluctance to answer it.

Prior related posts:

• Noticing that two Justices keep noticing challenges to old (vague?) guidelines

Dispiriting review of more COVID news from jails and prisons around the US

In this recent post, I noted many headlines and news stories that detailed how coronavirus cases among inmates and staff were impacting jails and prisons nationwide. Four days later, another round-up of these stories proves even more dispiriting with news of COVID deaths and ever-growing numbers of cases.  Here is just a sampling of headlines from some of our largest criminal justice systems as of mid-afternoon Sunday March 29:

National: "Spread of coronavirus accelerates in U.S. jails and prisons"

Federal: "Coronavirus claims first federal prisoner; 49-year-old drug offender dies in Louisiana"

Florida: "Seven Florida Department of Corrections employees test positive for COVID-19"

Georgia: "Lee State Prison inmate dies, 4 staff members test positive for COVID-19"

Illinois: "Coronavirus In Chicago: 89 Inmates, 12 Staff At Cook County Jail Test Positive For COVID-19"

Michigan: "Coronavirus cases surge in Michigan’s crowded prisons"

New York: "Coronavirus claims life of NYC correction officer, union says"

Texas: "3 COVID-19 Cases Confirmed in Texas State Prisons; 42 Employees Isolating at Home"

Sadly, but unsurprisingly, Rikers Island is its own COVID-replicating land: According to this recent press piece, "as of Sunday, 114 DOC corrections officers and 139 inmates have tested positive for COVID-19."

How about offering "diploma privilege" law degrees for current 3Ls who help practicing lawyers with compassionate release and clemency petitions?

The question in the title of this post is my reaction to the interesting and important debate over whether and how a bar exam should be required for current 3L law students in order for them to be able to become practicing lawyers.  This Law.com article, headlined "Fall Bar Exam Added, Fate of July Test Uncertain Amid COVID-19 Pandemic," details the issues and challenges:

Jurisdictions now have the option to offer the bar exam in the fall.  The National Conference of Bar Examiners, which develops the nationwide test, announced Friday that it will offer an alternate date for the all-important licensing exam for jurisdictions that cannot, or choose not to, move forward with the July administration due to the COVID-19 pandemic.

The national conference has not yet canceled the July exam.  It will decide the fate of the July test no later than May 5, with the idea that it will have a better idea of whether enough jurisdictions want to move ahead with the test and whether public gathering restrictions will even make it possible....  If some jurisdictions do offer the bar exam in July, the national conference will prepare a different test for the fall — the date of which has not yet been finalized, conference president Judith Gundersen said Friday.

Moving to a fall bar exam would delay admission for test takers by about two months, the national conference noted, but that’s preferable to waiting until the February 2021 exam.  “There are no simple answers and no great solutions in this situation,” read the national conference’s statement. “We are trying to provide some certainty in truly uncertain times, while maintaining the integrity of the bar admissions process for the benefit and protection of the public.”

Any postponement of the bar exam may not sit well with graduating law students, some of whom have begun to organize and lobby their jurisdictions for a one-time emergency diploma privilege that would enable them to practice without taking and passing the bar.

Brian Heckmann, a third-year student at Florida International University College of Law, said simply postponing the bar exam until the fall is short-sighted. “Given the nature of this pandemic, there is no guarantee we won’t be in the same position come the end of August that we are in now,” he said Friday. “What would happen then? Keep kicking the can down the road and delay the ability for graduates to practice indefinitely?” Delaying the admission of new lawyers would also exacerbate the nation’s growing unemployment problem and force new law grads to take jobs for which they are overqualified while they await the opportunity to take the bar, he added.

Bar examiners and court systems have come under increasing pressure this week to make swift decisions about the fate of the bar exam, in part to help alleviate some of the stress and uncertainty graduating law students feel about the future and their professional prospects.  A widely read paper released March 23 by 11 legal academics and education policy experts [available here] argues that jurisdictions should act fast in adopting alternatives to the July bar, given that it seems increasingly unlikely that it will be safe to gather so many people together at that time.  The paper argues against postponing the exam, given that the COVID-19 pandemic may stretch on in waves and that predicting when it will be safe to convene in large numbers is difficult....

Meanwhile, law students are coalescing around the diploma privilege concept.  More than 1,000 law students this week signed a letter to the New York State Bar Association’s Task Force on the New York Bar Examination asking it to quickly adopt a diploma privilege for 2020 graduates of American Bar Association-accredited law schools, arguing that it is the fairest way to handle the unprecedented situation while also ensuring new lawyers come online to address access to justice issues.

Law students in Florida are also pushing for a diploma privilege. By Friday morning, nearly 2,000 had signed a petition calling on the Florida Board of Bar Examiners to extend an emergency diploma privilege to 2020 graduates of ABA-accredited law schools who had registered for the July test.  “Such privileges could easily come with stipulations that ensure the competence of those admitted to the practice of law so as to protect the public from unqualified lawyers,” the petition reads.

I have never been a big fan of the bar exam, so I approach this debate with an affinity for finding other ways to license lawyers.  And, as the title of this post is meant to suggest, at this time of national (and international) public health emergencies, shouldn't we be urging young lawyers-in-training to invest their time in activities other than studying for a high-pressure, mega-test?

Unsurprisingly, I think it would be great to channel junior lawyer time into mass clemency and compassionate release efforts. But there are, of course, so many other legal needs being created and enhanced by the COVID pandemic.  I would hope bar official might appreciate that encouraging junior lawyers to pursue legal community service, rather than focus on bar prep, could help encourage a group of new lawyers to have the right kind of professional commitments and values from the very start of their careers.

Rounding up some tales of crime amidst COVID lockdowns

I have seen a number of recent headlines discussing crime realities as we complete another week of shuttered cities battling the coronavirus.  Here is a sampling from major news sources:

From the Associated Press, "Coronavirus-related crimes are on the rise"

From the Chicago Tribune, "Chicago joins New York, Los Angeles with drops in crime as coronavirus and shelter order take hold"

From the Los Angeles Times, "Coronavirus restrictions caused crime to fall sharply, LAPD and sheriff report"

From The Marshall Project, "As Coronavirus Surges, Crime Declines in Some Cities"

From the Philadelphia Inquirer, "Despite concerns of lawlessness, Philadelphia crime drops in first week of social distancing"

From the Wall Street Journal, "Coronavirus Pandemic Changes Policing, Including Fewer Arrests: As crime falls, police focus on keeping social order, enforcing social distancing"

From the Washington Post, "New York City’s crime rate plummets amid coronavirus shutdown"

"Five ways the criminal justice system could slow the pandemic"

The title of this post is the title of this great new report from the Prison Policy Initiative.  Here is how the report gets started and its listed "five ways":

The United States incarcerates a greater share of its population than any other nation in the world, so it is urgent that policymakers take the public health case for criminal justice reform seriously and make necessary changes to protect people in prisons, in jails, on probation, and on parole.

Below, we offer five far-reaching interventions that policymakers can use to slow the spread of the virus in the criminal justice system and broader society. We previously published a list of common sense reforms that could slow the spread of the virus in jails and prisons.  In light of the rapid spread of COVID-19 throughout the U.S., and specifically in prisons and jails, we found it necessary to update these recommendations with more detail about who has the power and responsibility to enact policy change, and how to reform the criminal justice system in the midst of a public health crisis.

Quick action is necessary for three reasons: Correctional staff and incarcerated populations are already testing positive, the justice-involved population disproportionately has health conditions that make them more vulnerable, and the staffing resources required to make policy changes will be depleted long before the pandemic peaks.

The incarcerated and justice-involved populations contain hundreds of thousands of people who may be particularly vulnerable to COVID-19, including those with lung disease, asthma, serious heart conditions, diabetes, renal or liver disease, and with other immunocompromising conditions. Protecting vulnerable people will not only improve outcomes for them, but will also reduce the burden on the healthcare system, protect essential correctional staff from illness, and slow the spread of the virus....

The final reason to move quickly is that, even under normal circumstances, establishing and implementing new policies and practices is something that the government finds challenging to do on top of its other duties.  Now that the number of COVID-19 cases is higher in the U.S. than any other country, we know that more people will continue to be directly impacted by illness, including policymakers and government leaders.  With the possibility of up to 40% of government lawyers and other policymakers getting sick or taking care of sick relatives, making policy change is going to be much harder and take far longer.  If the government wants to protect both justice-involved people and their already overstretched justice system staff from getting the virus and spreading it further, they need to act now.

Here are five places to focus:

1. Reduce the number of people in local jails....

2. Reduce the number of people in state and federal prisons....

3. Eliminate unnecessary face-to-face contact for justice-involved people....

4. Make correctional healthcare humane (and efficient) in a way that protects both health and human dignity....

5. Don’t make this time more stressful for families (or more profitable for prison telephone providers) than absolutely necessary....

Just a few governors starting to (barely) address looming prison and jail COVID crisis

I am pleased to see more and more advocates and groups in more and more states making more and more urgent pleas to governors and other public officials to address the looming public health problems posed by modern mass incarceration.  For example, here are reports of recent decarceration pitches in Alabama, Connecticut, Nevada, Oklahoma, Tennessee, Texas.  In this vein, I am hopeful that Ohio Governor Mike DeWine, who has been an effective and inspiring leader during these trying times, might soon respond to this thoughtful plea from a coalition of Ohio public policy groups to take aggressive steps to reduce prison and jail populations in the Buckeye State to advance our public health interests.

With this new report from Georgia of a 49-year-old inmate dying from the coronavirus and many other state prisoners and staffers testing positive, it seems to be only a matter of time before every state chief executive comes to understand the lurking public health problems posed by the combination of mass incarceration and COVID-19.  Late yesterday, I am glad to report, a couple of governors acted (in relatively small ways) to address these issues:

California: "Gavin Newsom commutes prison sentences for 21 California inmates, pardons 5 more"

New York: "Cuomo orders 1,100 parole violators released from jails over coronavirus concerns"

Though we should always welcome and praise governors who do something rather than nothing on these issues, we are going to need a lot more something from a lot more governors to head off a lot more public health problems.

A few of many prior related posts:

• When and how will federal authorities start systematically modifying federal sentencing and prison realities in response to COVID-19 outbreak? 
• Who in Trump Administration is involved in "actually looking at" using executive action to release "totally nonviolent prisoners"? 
• With lives at stake, when will we start to see mass clemency and compassionate release? 
• FAMM urges AG Barr to use new pending CARES Act provision to move federal prisoners into home confinement
• "Correctional Facilities In The Shadow Of COVID-19: Unique Challenges And Proposed Solutions" 
• "Four Things Every Prison System Must Do Today"

Hundreds of former DOJ officials and federal judges urge Prez Trump to commute sentences and create emergency advisory group to respond to COVID-19 challenges

The folks at Fair and Just Prosecution has this new press release discussing a notable new plea for more action from Prez Trump to address COVID-19 challenges in our nation's criminal justice system.  From the start of the press release (with bold in the original):

Today 405 former DOJ leaders, attorneys, and federal judges — including 35 former United States Attorneys who served under both Republican and Democratic Administrations —issued an open letter to President Donald Trump asking him to take immediate action to reduce the population in federal detention and correctional centers to prevent the catastrophic outbreak of COVID-19 in these facilities.  In the letter, they urge the President to support efforts to mitigate the spread of COVID-19 among those held in federal custody — as well as the many individuals who work in these facilities and return to their community at the end of each shift — by:

• Using his executive power to sensibly commute sentences for the elderly, those who are medically vulnerable and individuals who have already served most of their sentence, provided that they do not pose a serious risk to public safety;
• Encouraging and establishing policies to promote the limitation of new custody to only individuals who present a serious and demonstrable risk to public safety;
• Creating a bipartisan emergency advisory group to quickly guide this process and ensure the most vulnerable are protected;
• Urging the Bureau of Prisons to take measures to ensure correctional staff receive regular testing as well as health care support, including full pay if they become sick with the virus; and
• Supporting emergency funding for prevention, treatment, reentry support, and incentivizing state and local governments to address the public health concerns in their own jails and prisons.

I like all these recommendations, and I especially see value in creating some kind of special working group to focus on a range of federal and national criminal justice administration issue.

UPDATE: I have also now seen this additional letter that dozens of leading public health experts has sent to President Trump.  Here is this letter's chief clemency recommendations (with bold in the original):

First, we ask that you commute sentences for all elderly people.  While the SARS-CoV-2 virus infects people of all ages, the World Health Organization (WHO) is clear that older people are at a higher risk of getting severe COVID-19 disease and dying.  In fact, the risk of severe disease gradually increases with age starting from around 40 years.  Also, older people who are released from prison pose little risk to public safety.

Second, we are also asking that you commute sentences for the medically vulnerable population including persons suffering from cardiovascular disease, diabetes, chronic respiratory disease, or cancer.  In addition to older people, WHO has identified persons with these underlying medical conditions to be at greater risk for contracting severe COVID-19.  While there is little known yet about the effects of COVID-19 on pregnant women, the CDC explains that with viruses from the same family as COVID-19, and other viral respiratory infections such as influenza, pregnant women have had a higher risk of developing severe illness.

Third, we are asking that you commute sentences for all persons who have one year or less remaining on their sentence.  This measure will limit overcrowding that can lead to further spread of COVID-19 and free up beds that will be needed to care for the sick who should be housed separate from others.

Federal inmates and staff all around the nation now testing positive for coronavirus

In this post yesterday, I noted a press piece which reported that Attorney General William Barr had said that a "total of six inmates and four prison staffers have tested positive for COVID-19."  Because my post was done after 3pm yesterday, I was able to then report that, as of March 26, the BOP was reporting 10 federal inmates and 8 federal prison staffers had tested positive for COVID-19.  It is now after 3pm on March 27, and the BOP's COVID-19 Update page is now reporting that 14 federal inmates and 13 federal prison staffers have tested positive for COVID-19.  Here is where those numbers come from:

(Inmate) 3/27/2020 - MDC Brooklyn; FCC Oakdale (5); USP Atlanta (2); MCC New York (2); RRC Phoenix; RRC Brooklyn (3). (Note: Symptomatic inmates are isolated in accordance with CDC guidelines.)

(Staff) 3/27/2020 - Grand Prairie, TX; Leavenworth, KS (no inmate contact); Yazoo, MS (2); Atlanta, GA; Danbury, CT; Butner, NC; Ray Brook, NY; New York, NY (2); Chicago, IL (2); Brooklyn, NY.

In addition to wishing all these individuals well, I am also wishing that everyone expects and acts as if these numbers are likely to grow exponentially in the days and weeks to come. Public official have the power, and now that power must be used, to avoid turning far too many prisons sentences into essentially death sentences.

A few of many prior related posts:

• When and how will federal authorities start systematically modifying federal sentencing and prison realities in response to COVID-19 outbreak? 
• Who in Trump Administration is involved in "actually looking at" using executive action to release "totally nonviolent prisoners"? 
• With lives at stake, when will we start to see mass clemency and compassionate release?  
• "U.S. attorney general seeks to expand home confinement as coronavirus spreads in prisons" 
• FAMM urges AG Barr to use new pending CARES Act provision to move federal prisoners into home confinement
• "Correctional Facilities In The Shadow Of COVID-19: Unique Challenges And Proposed Solutions" 
• "Four Things Every Prison System Must Do Today"

"Four Things Every Prison System Must Do Today"

The title of this post is the headline of this lengthy new Slate piece authored by Margo Schlanger and Sonja Starr. I highly recommend this piece in full and here are excerpts:

As COVID-19 spreads rapidly throughout the United States, it has begun to enter our prisons and jails, which confine more than 2 million people. We are on the verge of catastrophe — for incarcerated persons, staff, and their families, obviously, but also for the general public. Some officials have been sounding the alarm, and we’re beginning to see some action — but not nearly enough, and not fast enough....

Per capita, the incarcerated population in the United States is several times larger than that of nearly every other country in the world. That renders us uniquely vulnerable to this disease vector.  It is nearly inevitable that this virus will hit our prisons and jails hard and soon.  Indeed, it’s surely already in more of them than we know.  The only question is how bad the damage will be.  We can mitigate it only with swift and aggressive action.

The only way to really limit this catastrophe is by quickly reducing the number of people incarcerated. If we can get everyone out who doesn’t have to be there, it will also produce some critical space that institutions will need to enable social distancing and to isolate the sick, and might even make it possible to operate with reduced staff.  And although some are already infected, there will be a smaller number if we act today than there will be if we act tomorrow, or next month. Moreover, we can minimize the risk those already infected pose to the community by ordering that those released stay at home for two weeks or more.

Governors of many states have the authority, under emergency powers and/or their ordinary clemency powers, to order quite sweeping steps. Courts can implement others  (here’s a catalog of state Supreme Court orders so far, and also of litigation seeking emergency prisoner releases), and local prosecutors can be crucial actors as well.  There are several key steps that states (and the federal system) should take:

1. Delay new sentences, except as absolutely necessary. Sentence start dates, sentencing hearings, plea hearings, and trial dates can be deferred until after the emergency....

2. Sharply limit pretrial detention....

3. Commute all sentences due to end within a year....

4. Release older and chronically ill individuals....

Some of the steps proposed here might seem radical in ordinary times. But these are extraordinary times. Throughout the country, governors and other public officials are taking sweeping, dramatic actions to protect the public from COVID-19. Ordinary Americans are upending our lives in ways we could not have imagined just a week or two ago. If we don’t think at the same scale about the brewing crisis in prisons and jails, we will all suffer the consequences.

Assembling some COVID criminal justice resource pages

I have previously posted here and elsewhere about some collected resources on coronavirus issues, but I have now decided to try to put some of these resources more permanently on my left sidebar.  Here are the links I have assembled so far, and I welcome suggested additions.

• The Appeal
• Collateral Consequences Resource Center
• FAMM
• Federal Defenders
• The Justice Collaborative
• The Marshall Project
• NACDL
• Prison Policy Initiative
• Vera Institute

 

UPDATE: A helpful reader from Down Under wrote to me to suggest a bunch of additional terrific COVID-19 resource pages, including a number of international sites:

• EuroPris
• International Corrections and Prisons Association
• National Institute of Corrections
• National Commission for Correctional Healthcare
• Prison Insider
• World Prison Brief

Guest post/question: "Will home confinement become a more (or less) attractive alternative to incarceration?"

A thoughtful and insightful colleague wrote to me this morning to pose the question in the title of this post.  I asked for a fuller write up of the query for posting, and here it is:

Section 5F1.2 of the federal sentencing guidelines defines “home detention” this way —

"Home detention” means a program of confinement and supervision that restricts the defendant to his place of residence continuously, except for authorized absences, enforced by appropriate means of surveillance by the probation office.  When an order of home detention is imposed, the defendant is required to be in his place of residence at all times except for approved absences for gainful employment, community service, religious services, medical care, educational or training programs, and such other times as may be specifically authorized.  Electronic monitoring is an appropriate means of surveillance for home detention. However, alternative means of surveillance may be used if appropriate.

For most of us, the last two weeks have genuinely been a period of home detention.  For me, I’ve been supervised in my confinement not by a probation officer, but my wife and daughters, who, should I venture out too far or too long, are quick to send me an electronic message to return home.  [I think this meets the term “alternative means of surveillance” as used in 5F1.2.]  And of course, I am not approved for absences for gainful employment (telework), religious services (cancelled), or educational or training programs (Zoom).

Later today, the House of Representatives will pass legislation that will expand the use of home confinement for federal prisoners to address the current COVID crisis, and Attorney General Barr has already issued a directive to the Bureau of Prisons to expand its use (see earlier posts here and here).  Many of us for years have advocated for the expanded use of home confinement and electronic monitoring as alternatives to imprisonment and to reduce the nation’s reliance on imprisonment for punishing convicted offenders.  I’m not sure, though, now that we all have experienced home confinement, whether it will be a more — or less— attractive alternative to incarceration.

Doug — What do you think?   

Readers — What do you think?

My first-cut answer to this great question is an answer I have been trotting out a lot these days: "Who the heck knows, but I am eager to find out."

I am certain many people are not enjoying their personal "home confinement," and will be finding it more and more burdensome in the weeks to come.  But I also know that personal "home confinement" still likely would be, and surely should be, seen as much less burdensome than actually being incarcerated. (A recent Marshall Project speaks to this reality: "No, Your Coronavirus Quarantine Is Not Just Like Being in Prison.")   I fear that many persons may be inclined to say, after the pandemic resolves, some version of "Criminals should always face a harder experience than I did during COVID."

That all said, so much of the reality of criminal justice administration can be shaped by economics, especially at the state level where incarceration costs take up a much larger percentage of overall state budgets.  Home confinement surely will always be much cheaper than imprisonment, and finding cheaper punishments may become extremely important (for states in particular) if we are facing a long recession that makes limited state resources even more scarce. 

Last but certainly not least, if some states moved a significant number of current prisoners into home confinement while others do not, we will be starting an interesting and important "natural experiment" on the efficacy of home confinement relative to imprisonment.  Though this "natural experiment" will not be able to give us conclusive data on whether home confinement serves public safety as well as imprisonment, advocacy for decarceration are likely to highlight this experience if we do not see a huge spike in crime in those states that have decarcerated more.

Colorado Gov issues big executive order to address the impact of coronavirus on criminal justice administration

As reported in this local article, the "signing of two new executive orders by Gov. Jared Polis to combat coronavirus were announced Thursday [including] one to limit COVID-19 in prisons." Here are the basics:

Executive order D 2020 016 concerns “protocol for state prisons and community corrections facilities,” the release said.  Directives of the order include:

• Colorado Department of Corrections can temporarily limit the amount of prisoners it accepts, based on certain criteria, keeping offenders in pre-transfer facilities.
• DOC can award “earned time credits” to reduce the current prison population.
• Qualifying inmates can be referred to a “Special Needs Parole” program.
• A $17 daily subsistence payment required from community corrections clients will be suspended.

“The potential spread of COVID-19 in facilities and prisons poses a significant threat to prisoners and staff who work in facilities and prisons, as well as the communities to which incarcerated persons will return,” the release said.

The governor’s order also calls for making 650 beds available in the DOC’s East Cañon Complex, Cañon City, to “house persons of mixed classification for operational needs related to the COVID-19 outbreak.”

Rep. Leslie Herod, a Denver Democrat who has worked extensively on prison issues, supports the order. “The Executive Order is a critical recognition that something needs to be done to contain COVID-19 in our prisons and community corrections. The virus will strike there, as it will all of our communities, and I’m encouraged that the governor recognizes this fact and is taking important steps to contain its spread,” Herod said. “This is vital and I support it. We must keep offenders and our correctional officers safe and as healthy as possible.”

Dean Williams, executive director of CDOC, also applauded and supports the order. “This Executive Order from the Governor allows us to pursue potential options to manage our prison population without jeopardizing safety during this crisis,” Williams said in a statement. “We will be working diligently over the coming days and weeks to put into action the directives from the order in a thoughtful and measured way.”

Though I am not familiar enough with Colorado law to assess all the particulars of this executive order, which is titled "Temporarily Suspending Certain Regulatory Statutes Concerning Criminal Justice," I am familiar enough with the challenges that COVID is creating that I can praise Gov Polis for being proactive in this arena. 

Will thousands of federal prisoners be eligible for home confinement under AG Barr's new guidelines?

Attorney General William Barr's new directive and guidelines to the Bureau of Prisons to prioritize home confinement for certain at-risk inmates can be seen as a small response to a big emergency.  This CBS News piece notes one response along these lines:

The announcement comes after calls from criminal justice advocacy groups to reduce prison populations nationwide in order to avoid what could be a disastrous and dangerous spread of the virus.  Kevin Ring, the president of Families against Mandatory Minimums, told CBS News his concern is that inmates will die unnecessarily if the bureau does not take "bolder" actions.  Ring says officials should consider other avenues like compassionate release.  "I don't think it's enough," Ring said.  "I think it's a small step in the right direction, but I think it's a peacetime move in a time of war."

Though I share the view that even bolder action is warranted, the extraordinary size and relatively low-risk profile of the federal prison population might still well mean that many thousands of federal inmates could be moved out of prison if BOP robustly implements AG Barr's guidance. The CDC states that "older adults and people of any age who have serious underlying medical conditions may be at higher risk for more serious complications from COVID-19," and possibly as much as 20% of the 175,000+ inmates might reasonably claim to be a-risk under CDC criteria and also claim to meet the other home confinement criteria set out by AG Barr.

Even assuming that only a very small percentage of prisoners, say, only 1 out of every 15 current federal prisoners, meet the home confinement criteria, that would still mean that well over 11,000 federal prisoners would be eligible to head home to serve out the rest of their sentences.  Because BOP has a well-earn reputation for being unwilling or unable to help prisoners get out of federal facilities early, I am not so confident that we will soon be seeing thousands of federal prisoners heading home.  But the directive from AG Barr now would seem to make that more of a possibility.

Prior related posts:

• "U.S. attorney general seeks to expand home confinement as coronavirus spreads in prisons" 
• FAMM urges AG Barr to use new pending CARES Act provision to move federal prisoners into home confinement

"Correctional Facilities In The Shadow Of COVID-19: Unique Challenges And Proposed Solutions"

The title of this post is the title of this lengthy and comprehensive new posting at the Health Affairs Blog.  I recommend the lengthy piece in full, and here is how it gets started:

As the global COVID-19 pandemic accelerates, it is critical to note that incarcerated people in the U.S. have a constitutional right to healthcare services that meet community standards, and that older adults and those with chronic and/or serious medical conditions in prisons and jails are at grave risk of experiencing serious illness and death due to a COVID-19 infection -- just as they would be in the community.

Given the rate and spread of infection in the U.S., direct impact in many if not most U.S. correctional systems is inevitable.  Failure to mount an adequate response to potential COVID-19 outbreaks throughout the nation’s jails and prisons has the potential to devastate the health and well-being of incarcerated Americans, the nation’s correctional workforce, and people living in the thousands of communities in which our jails and prisons are located.  As the epidemic rapidly worsens, the narrow window of opportunity to implement effective prevention and mitigation strategies on behalf of people living and working in U.S. jails and prisons is quickly closing.  Last week, the World Health Organization (WHO) called upon correctional systems worldwide to take action, issuing interim guidelines for responding to the pandemic in jails, prisons, and other places of detetion, while protecting the health, safey and human rights of incarcerated people and correctional workforces. 

While coordinated action over the coming days and weeks is critical, there are many reasons that responding to COVID-19 in U.S. jails and prisons is uniquely and extraordinarily challenging.

And here is just some of the additional commentary I saw today in this same vein:

"COVID-19 gives us an urgent argument for compassionate release"

"How mass incarceration will lead to mass infection — and how to avoid it"

"‘The Only Plan the Prison Has Is to Leave Us to Die in Our Beds’"

"What Cuomo Hasn’t Done"

"Larry Hogan can lead by addressing covid-19 in prisons and jails"

"Families Fear The Worst As Coronavirus Spreads In Prisons"