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March 18, 2020
Are federal prosecutors getting any guidance from Main Justice about federal sentencing policy and practice amidst coronoavirus pandemic?
The latest standard data from the US Sentencing Commission, specifically its FY19 Fourth Quarterly Sentencing Update which was published on January 8, 2020, details that in Fiscal Year 2019 there were over 75,000 federal criminal cases sentenced in the federal district courts. Given that there are roughly 250 business days in a year, this year-end number converts to an average of 300 federal sentences imposed every day, 1500 federal sentences imposed every week, 6200 federal sentences imposed every month in US courts nationwide. Of course, those data reflect normal times, and these are obviously not normal times.
I am certain many federal sentencings that were scheduled for the current week have been postponed. But I also have a sense that some, maybe many, federal sentencings have gone forward despite the fact that formal and informal lockdowns are taking place nationwide. As but one example, this new FoxNews piece reports that "Former Rep. Duncan Hunter, R-Calif., was sentenced on Tuesday to 11 months in prison and three years of supervised probation after pleading guilty to a single corruption charge." This AP piece about the sentencing notes:
The hearing was held despite many state and federal courts across California and the country all but shutting down or holding hearings by teleconference to curb the spread of the new coronavirus. The judge said the full courtroom did not exceed 50 people, complying with federal recommendations....
Hunter was ordered to report May 29 to a prison in an undisclosed location in the western United States. The judge also ordered Hunter to participate in a drug and alcohol program. He will be under supervised release for three years.
Of course, the President's Coronavirus Guidelines actually say to avoid social gatherings "in groups of more than 10 people," though a sentencing hearing is obviously not really a social gathering. I do not know if Hunter's lawyers sought a delay in his sentencing hearing yesterday, but I do know it would be malpractice if they do not seek a delay in his prison report date if we have not gotten the spread of the coronavirus under control in the next few months. And if I was currently representing a person who was at home and had an upcoming federal sentencing, I would likely be seeking a postponement simply to give me and my client more time to prepare for sentencing in light of all the uncertainty created by a global pandemic.
Because I have not yet seen or heard of any guidance emerging from the US Department of Justice on whether and how federal sentencings should proceed during these uncertain times, I am assuming that individual US Attorney offices (and likely individual federal prosecutors) are making up their own "rules" about all sorts of challenging new issues regarding federal sentencing practice amidst this coronoavirus pandemic. Should federal prosecutors generally agree to or generally oppose requests for postponements? Should it matter whether the defendant making such a request is currently in federal custody? Should prosecutors themselves be seeking postponements and for how long? Should prosecutors agree to or oppose proposals to conduct sentencing "online" (whatever that might mean)?
Question of sentencing practice are immediate, but those of sentencing policy are even more challenging. Should federal prosecutors generally agree or generally oppose claims that the general pandemic is a proper consideration under 18 U.S.C. § 3553(a)(2) in all cases? How about if a defendant can make arguments based in being a special caretaker for high-CDC-risk relatives? How about if a defendant has history as a medical professional or law enforcement officers and he says he is eager to do community service during this period of extreme need for certain kinds of national service?
Because I could rattle off literally dozens of hard questions of federal sentencing policy and practice amidst the coronoavirus pandemic, I suppose I am not too surprised that Attorney General William Barr and other senior members of the Justice Department have not yet issued public statements about how these kinds of matters ought to be addressed in federal courthouses around the country. But I sincerely hope they are working on this ASAP (with advice from health professionals), especially because these matters now really do involve life-and-death issues.
March 18, 2020 at 01:33 PM | Permalink
Comments
My district has cancelled most hearings unless absolutely time-sensitive. Initial appearances are still happening. Delays of self-surrender are being granted. We are bracing for devastating effects inside the prisons and jails and ICE detention centers. BOP says everything is fine but its a lie.
Posted by: defendergirl | Mar 19, 2020 11:40:20 AM