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May 4, 2020

Are federal judges approaching prison sentencing differently now that they see BOP ugliness up close?

The question in the title of this post is prompted by this notable new Forbes piece by Walter Pavlo headlined "After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future." I recommend the piece in full, though I fear it may be a bit too optimistic about the way the COVID era might impact the work of federal judges.  Here are excerpts:

In late March, U.S. District Judge Jesse Furman struggled to look for a way to free Nkanga Nkanga, a sixty-seven-year old former doctor with no prior criminal record who had admitted to unlawfully prescribing oxycodone and other controlled substances for non-medical purposes. Nkanga was held at MDC Brooklyn New York, a notoriously poorly run, dated and filthy prison operated by the Federal Bureau of Prisons (BOP).

Judge Furman, who had remanded Nkanga into custody in October 2019 after entering a guilty plea, was frustrated by what he could and could not do to free the inmate who was suffering from asthma and lingering conditions from a stroke years earlier.  Furman sentenced Nkanga to three years and was awaiting designation to Federal Medical Center Devens.  Assistant US Attorneys Jacob R. Fiddelman and Cecilia E. Vogel vehemently opposed the ailing doctor’s requests for release, frustrating Furman to call on legislatures and executive branch actions to untie his hands....

While judges may have a limited say in the release of an inmate, they have a big say in how long they are incarcerated....

In Ohio, a federal judge ruled that the BOP’s operation of FCI Elkton amounted to an 8th Amendment violation (Cruel and Unusual Punishment).  Lawyers for the BOP responded on April 28, 2020 that the measures the BOP took to curb the virus’s spread had been effective, stating in its emergency motion that, “These efforts have been working as the number of new cases has been reduced.”  I’m not sure where the attorneys got their stats but according to the BOP’s own website that tracks (under-reports) COVID-19 spread, showed a marked increase in cases....

Federal judges across the country have been hearing horrid stories about the BOP’s conditions and the agencies reaction, lack of action, to COVID-19. American Civil Liberties Union (ACLU) chapters have become involved, attempting to bring to light a federal agency’s inept and cruel response to the contagion of a virus that has infected over 2,000 inmates and killed 37. The BOP is inflicting even more, unmeasured, mental distress on both families and inmates.

The BOP’s failure to accurately report positive COVID-19 has endangered both its own staff members and inmates alike.  The promises to send people to home confinement and then taking it away, then possibly reinstating it, is cruel.  Locking minimum security inmates in high security prison cells for weeks and calling it a “quarantine” is something that needs to be investigated.  Directives that have now caused the cutting of communication with family (in-person visits, reduced telephone time and little access to email) is beyond comprehension at a time when people need some social interaction to keep their sanity. Many of these inmates have close family ties and what little correspondence they have had with family has relayed fear, sadness and oppression....

I have given up on prosecutors being a part of any criminal justice reform.  They create narratives, many of them farfetched, to justify long prison terms for crimes that may not have even occurred.  While I’m not saying that “nobody did the crime” what I am saying is that once a prosecutor gets a guilty plea, they exaggerate the crime, usually through inflation of the dollars associated with the crime and enhancements, to get longer sentences.  Judges, who make the ultimate determination of the amount of time a person spends in prison, could be the saving grace to reducing prison populations.  It only took a global pandemic to get them engaged.

Defendants would rather be in front of a judge on July 2020 than one on July 2019.  Judges are going to re-think their sentences.  Their courtrooms are currently jammed with motions for compassionate release, civil rights violations by BOP, and pre-trial pre-sentencing release motions.  Center stage at these hearings are BOP conditions, its policies, its care of inmates and how it treats those employed at these institutions.  In short, federal judges are seeing firsthand how the BOP executes the sentences they impose ... and it is ugly.

Federal judges may hold the key to real criminal justice reform because COVID-19 will make them think about the consequences that their sentences have on the lives of defendants and their families.  They will not be able to un-remember these tragic stories ... and that might be a good thing.

As always, I would be eager to hear (in comments or via email) from persons actively involved in federal sentencing work in this COVID era about whether they think judges are already starting to "re-think their sentences" and whether they are hopeful that federal judges are forever more going to think more "about the consequences that their sentences have on the lives of defendants and their families."  Though I sincerely hope that this current era proves to be "game-changing" for all judges (state and federal, trial and appellate), I am not all that optimistic for a number of reasons (which somewhat echo some points well-made in the great commentary I flagged here this past weekend).

First, as this notable recent Cato report detailed, a remarkably large number of current federal judges are former prosecutors.  As Palvo highlights, a lot of prosecutors get in the habit of assuming defendants are far worse than their convictions reflect and of believing long prison terms effectively achieve serve deterrence and incapacitation goals.  Once acclimated as prosecutors to viewing defendants as generally worse than they seem and tough punishment as critical for public safety, it is easy to take comfort in the notion that all defendants have "earned" whatever terrible prison fate might await them.

Second, judges always have an ultimate "trump card" to get folks out of dangerous prisons by being able to declare prison conditions unconstitutional in violation of the Eighth Amendment.  This commentary mentions the significant ruling by Judge James Gwin (discussed here), but does not note its outlier status.  There have been lots of other rulings nationwide, from federal and state judges, refusing to find constitutional violations and refused to push prison authorities to release inmates from environments where COVID is spread wildly.  (To reinforce my first point, I am pretty sure Judge Gwin never served as a prosecutor, but the federal judge in Louisiana (Judge Terry Doughty) who dismissed a similar suit around the same time served as a state prosecutor for over two decades.)

Third, the federal judicial agency that is supposed to help federal judges do their sentencing jobs better, namely the US Sentencing Commission, has so far failed to say "boo" about the COVID disruption and the ways federal judges are responding (and might be able to better respond).  Of course, this agency has been crippled now for the better part of two years by the failure of Prez Trump and the GOP-led Senate to come together on a slate of new Commissioners so that the agency could be operating at full force.  Still, the USSC staff has managed publish at least three major research documents in the last two months along with a number of smaller publications.  Federal judges might be more emboldened and feel more supported in taking new approaches to sentencing in the COVID era if the USSC was doing more than just whistling its standard sentencing tunes while federal prisons continue to burn.

That all said, my review of dozens of judicial grants of sentence reductions using § 3582(c)(1)(A)  (examples here and here and here and here and here and here) reveals that there are indisputably some — perhaps a good many — sitting federal sentencing judges who "get it" and recognize that the usual horrors and harms of prison are now even more horrible and harmful.  But I still fear that those judges now most concerned with COVID in federal prisons and BOP's inadequate response are just those same judges who have always been most attentive to "the lives of defendants and their families."  I sincerely hope the large number of former-prosecutors-turned-federal judges are starting to look at sentencing issues differently, but my hopefulness ability has been dampened by waiting for former-prosecutor-turned-Justice Samuel Alito to start looking at sentencing issues differently.

On the topic of hope, I would love to hear from readers (in comments or via email) that I am too pessimistic, that lots of judges are likely to look at lots of sentencing issues differently now.  Gosh knows we could all benefit from some small silver linings these days.

May 4, 2020 at 12:18 PM | Permalink


You're not being overly pessimistic. Here in the District of Oregon nothing has changed in the 23 years I have been practicing criminal defense in federal court. Prison time is given out like gumballs and it does not matter who appointed you (Clinton, Bush, Obama, Trump appointees all sit here) you are what most would consider conservative. Whether you admit it nor not, your decisions clearly prove that you strongly believe that incarceration should be the primary means of addressing any type of criminality. Ironically, in our District, by far the most resistant of any of the judges to unnecessary incarceration is the former US Attorney for the District. We have a former public defender on the bench and his sentencing decisions are hardly vanguard. I have to say the topic is hardly worth mentioning anymore. Reform is a joke. No one really cares about the rights of accused criminals and a lot of the academia dedicated to pushing the idea seems like piss in the wind to me.

Let's talk about something more practical: Why don't we collect more empirical data about individual federal judge's sentencing decision making? I know from more than 250 federal cases that every judge here is very different. Outcomes are predictably different for very similar defendants depending on which judge happens to have the case. No one seems to track these disparities so we have no way of confronting them.

Posted by: Matthew Schindler | May 4, 2020 5:21:15 PM

The US Sentencing Commission has done a number of recent disparity reports, but it does not identify individual judges:

USSC, Intra-City Differences in Federal Sentencing Practices (2019)

USSC, Inter-District Differences in Federal Sentencing Practices (2020)

USSC, Demographic Differences in Sentencing (2017)

Posted by: Doug B | May 4, 2020 7:25:28 PM

Except none of those studies deal with my issue. Telling a judge here that a judge in Nevada is not nearly as compelling as telling her another judge on the same floor viewed this differently.

Posted by: Matthew Schindler | May 4, 2020 9:24:09 PM

Contrary to the view of my good friend Matthew Schindler, I think that many judges are beginning to take the coronavirus pandemic into account in imposing sentences. See 171 Easy Mitigating Factors: 128 B Defendant’s vulnerability to Coronavirus.

U.S. v. Sandoval, 3:18-cr-00449-HZ (D. Oregon 3/12/2020) (where defendants charged with trademark infringement, Chief Judge Marco Hernandez varied downward from 12 months prison, to three years probation with eight months house arrest, for two defendants stating that he had been determined to sentence both defendants to prison and was only varying to probation not because of counsel's arguments but “because of the pandemic.”)

“When the Court sentenced [defendant], the Court did not intend for that sentence to include incurring a great and unforeseen risk of severe illness or death brought on by a global pandemic.” U.S. v. Zukerman, 2020 WL 1659880, at *6 (S.D.N.Y. April 3, 2020) (citing U.S. v. Rodriguez, 2020 WL 1627331, at *12 (E.D. Pa. Apr. 1, 2020)).”

By the way, if any of you should have the misfortune of being indicted, sell everything you have to retain Mr. Schindler as your attorney; he is a powerful and zealous advocate for the accused.

Posted by: Michael R. Levine | May 5, 2020 11:08:13 AM

Matthew: the first report I linked has an analysis of INTRA-district variation, and its analysis included Portland among its selected cities.

Check out page 55 and page 123 and after: https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190108_Intra-City-Report.pdf. The data suggest that city has one judge who is particularly severe relative to his local peers.

Posted by: Doug B | May 5, 2020 11:34:44 AM

A 67 year old doctor was giving out prescribed oxycodone illegally. It talks about the strokes and medical needs he needed being imprisoned. The article read "While judges may have a limited say in the release of an inmate", this was because the minimum sentencing. He needed to do his 3 years.

Posted by: Adrian Vasquez | May 8, 2020 1:45:47 AM

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