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May 6, 2020

Discouraging confirmation of my concern that federal judges are not yet really re-thinking their sentences amidst a COVID pandemic

In this post on Monday, I highlighted Walter Pavlo's interesting Forbes piece, headlined "After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future."  In the piece, Pavlo strikes an optimistic tone about how COVID might be altering federal judicial sentencing attitudes:

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."

In response, I expressed some worry that Pavlo's perspective might be wishful thinking and I detailed a few reasons for my persistent pessimism even in pandemic times.  I also noted I was "eager to hear 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'."  I was grateful to receive a lengthy email from thoughtful reader, who gave me permission to reprint part of this email:  

Thank you for all of you Covid-19 related sentencing coverage.  I was prompted to write by the post referenced above and your expression of interest in hearing from practitioners about sentencing right now and whether judges' sentencing practices are changing.  The answer is no.

You are not too pessimistic.  You are exactly right.  I've been a federal defender for about ten years.  I should be inured by now to the treatment of my clients, but seeing what is happening to them in federal prison right now -- and the utter apathy of most judges towards the situation -- is really heartbreaking.  Several pieces you have referenced capture it: our DOJ and judges have a mindless addiction to punishment.  Part of the problem is that so many of our judges are former prosecutors (and, by now, former prosecutors who grew up with the Sentencing Guidelines, so are completely invested in those Guidelines and do not even remember a time when sentences were shorter or judges made decisions without them).  Judges are very wedded to the punitive, incarceratory sentences that they impose.

[A recent] series of orders from my district really captures that (judge rejecting compassionate release and then another release request).  The judge recognizes that Covid-19 creates a dangerous situation for the defendant in prison.  But the judge just really wanted this nonviolent, fraud defendant to spend some years in a cage and he cannot let go of that desire, even if it means risking that person's life.

This relates to the point from the Cato piece you linked to earlier this week [available here]: We have known for a long time that prison conditions are bad.  Judges just accept it. And once they have come to accept it, the marginal increase in badness caused by Covid-19 is not going to be enough to move most of them.

More broadly, the reality is that if you imprison people on a regular basis, you need to construct a belief system that allows you to keep doing that.  Often, you first build it as a prosecutor and then you sustain it as a judge.  One component of that belief system tells you that whatever hardship a defendant suffers in prison is something that he caused by his own actions or something that he deserves for what he has done.  Another component tells you that in advocating/imposing harsh sentences, you are simply following "the law" (the Guidelines, the will of Congress, whatever) and you have no ultimate power over this "law," which is somehow controlled by someone else.  Those belief systems are not getting changed by one pandemic.

So what is with all the compassionate release grants? ... A few judges have been moved by the insanity of Covid-19 in prison, but I think it's a minority.  Many of these grants are on consent and are for defendants who had very little time remaining on their sentences.  In other words, judges will go along with letting you out if the prosecutor agrees you have been sufficiently punished.  And even in some of the better decisions, judges express regret that the defendants cannot be made to serve the full sentences they originally imposed.  That does not sound like long-lasting change in sentencing practices.


Prior recent related posts:

May 6, 2020 at 01:22 PM | Permalink


Really nice insight and articulation of the problem by the commentor. Add in that many federal district judges have experience only in the prosecution side of criminal law, if that, and there's just a lack of understanding of the whole process as it operates in the real world.

Posted by: Fat Bastard | May 6, 2020 2:49:25 PM

As I see it, part of the problem is that terminating sentences of significant length early gives some offenders a windfall due to COVID, creating an unwarranted sentencing disparity. If the judge thought this fraud defendant deserved a few years in prison based on the usual purposes of sentencing, it's understandable that s/he feels that reducing that to near-zero incarceration would undermine the purposes of sentencing. I suspect many judges feel that COVID is an extraordinary circumstances justifying a deferral, but not a cancellation, of significant terms of incarceration.

In my view, the correct approach in most cases is to allow temporary release on home confinement subject to recall when conditions improve. The prisoner would receive sentence credit for time served in home confinement. Giving judges the power to grant such temporary releases would prevent them from facing a choice between allowing a health risk and allowing the prisoner to functionally receive a new sentence that doesn't adequately meet the purposes of sentencing.

Posted by: Jason | May 8, 2020 9:59:14 AM

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