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March 21, 2020

More headlines provide more windows on the intersection of incarceration and the coronavirus

I now feel almost compelled to do a new post every day with the latest headlines on the coronavirus infecting prisoners and staffers.  Today's round up of stories will include a few headlines that also compel a bit of extra commentary:

Colorado: "22 inmates at Denver’s two jails under observation after showing coronavirus symptoms, none have been tested"

Georgia: "Three inmates test positive for coronavirus in Georgia as concerns grow over unprepared prison system"

Massachusetts: "First coronavirus case in Massachusetts prison confirmed by officials"

Montana: "Yellowstone County jail employee tests positive for COVID-19"

New York: "Employee in Erie County Jail Management Division tests positive for coronavirus"

National: "Police groups slam cities and states releasing jail inmates to mitigate coronavirus fears"

The first and last pieces in this round-up prompt my additional commentary.  The first piece highlights that a considerable number of inmates are exhibiting systems but have not been tested for coronavirus in Denver.  While I have highlighted in recent posts that more than a dozen states have a prisoner or staffer who has tested positive for COVID-19, I am depressingly confident that some person connected to some penal facility in every part of our nation carries the virus.  Testing everywhere has been limited, and it is all but certain that many, many inmates and staffers who have the virus just have not yet been tested.  With every state now having confirmed COVID-19 cases, surely every state's penal system has yet-to-be-tested COVID-19 cases.

The last piece highlights that at least some players in our carceral state seem to be content with the risk that any jail or prison sentence could turn into a possible death sentence thanks to COVID-19.  I can understand instinctual concerns about a mass release of the most dangerous of all convicted offenders, but most persons in local jails are by definition not among the most dangerous convicted offenders.  And with research suggesting that almost "40 percent of the U.S. prison population — 576,000 people — are behind bars with no compelling public safety reason," I sure wish it was not a pipe-dream to expect all police and prosecutors to be working together with public health and criminal justice advocates to move home all those who are now incarcerated, but not a threat to public safety, and yet facing a unique and unjust danger behind bars.

Prior coronavirus posts on jails and prisons:


UPDATESunday morning often is a time I try to get off-line, but this morning I cannot avoid these latest ugly new headlines:

"Top official says New York City coronavirus jail outbreak is a crisis, dozens infected"

"First federal inmate tests positive for coronavirus"

Pennsylvania: "Three inmates, five employees infected at county prison"

March 21, 2020 in Prisons and prisoners | Permalink | Comments (2)

"Communicating Punishment"

The title of this post is the title of this notable new paper authored by Marah Stith McLeod just posted to SSRN. Here is its abstract:

Does it matter whether convicted offenders understand why they are being punished? In the death penalty context, the Supreme Court has said yes; a prisoner who cannot understand the state’s reasons for imposing a death sentence may not be executed.  Outside the capital context, the answer is less clear.  This Article focuses on why and how states should help all offenders make sense of their sanctions, whether imposed for retribution, for deterrence, for incapacitation, or for rehabilitation.

Judges today sometimes try to explain sentences to criminal offenders so that they know the purposes of their suffering. But judges are busy, defendants are not always interested, and the law often treats such explanations as unimportant or even unwise.  Legislatures, moreover, rarely convey the purposes of statutory penalties, plea bargaining obscures the reasons for punishment, and the experience of punishment does not always reflect its social aims.

Scholars and critics of American criminal justice tend to pay little attention to these deficits.  Perhaps explaining individual sentences seems unimportant compared to the larger effort to humanize and rationalize penal policy.  In fact, however, the two are intertwined.

Communicating the reasons for punishment humanizes offenders by engaging with them as reasoning beings worthy of society’s continued concern — not as unreasoning animals simply to be harnessed or caged. The process of articulating punishment goals also can rationalize sentencing by reducing error, bias, and excess.

We can build a legal culture that respects offenders and advances punishment rationality by communicating the reasons for criminal sanctions. Legislatures can clarify the purposes of statutory penalties, prosecutors can explain how sanctions based on plea deals serve legitimate goals, judges can spell out the social objectives of sentences in terms that offenders can understand, and prison and probation authorities can convey sentencing rationales during the experience of punishment itself.

I had the honor and pleasure of reading an earlier draft of this paper as part of an AALS event, and upon first read I considered this piece a very important contribution to the literature.  A few months later, amidst a global pandemic, I think it even more important to consider how decisions in the criminal justice system communicate that offenders are still "worthy of society’s continued concern."

March 21, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Noticing potency of our culture of death as Denver capital trial moves forward amidst global pandemic

Those of a certain age can recall a time in which certain politicians regularly preached about the importance of promoting a "Culture of Life."  As one who follows closely the administration of the death penalty in the US,  I have long been inclined to derisively lament what I called a "culture of death" too often leading too many courts and other legal actors to devote, in my view, too much of their scarce resources to capital cases.  (I wrote a 2008 article on the topic focused particularly on the Supreme Court: "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'.")

These thoughts all came to mind today in these fraught times upon seeing this local article from Denver headlined "Court will not test potential jurors for coronavirus in Adams County death penalty case."  Here are the remarkable particulars:

A high-profile death penalty trial in the killing of an Adams County Sheriff’s deputy is going forward despite defense attorneys’ concerns for the health of their client, jurors and court personnel during the novel coronavirus pandemic.  Public defenders for Dreion Dearing, 24, argued in court filings that jury selection should not go on as scheduled Friday without screening and testing procedures for the virus in place for prospective jurors.

Dearing is accused of fatally shooting sheriff’s deputy Heath Gumm, 31, during a January 2018 chase.  He is charged with first-degree murder and faces the death penalty if convicted, despite the state legislature’s vote to repeal the death sentence in cases filed on or after July 1.  The bill has yet to be signed into law by Gov. Jared Polis.  The repeal would not apply to Dearing’s case even if Polis signs the bill, which he is expected to do.

Adams County District Court Judge Mark Warner denied the defense’s request for testing Thursday in part because the 17th Judicial District Court has already taken a variety of precautions, including cancelling most proceedings and ordering those who show symptoms or think they may have been exposed to COVID-19 not to come to the courthouse. Chief Judge Emily Anderson also ordered that people in the courthouse be allowed to wear masks and gloves and carry hand sanitizer.

“Based on the foregoing and the reasons set forth on the record on March 18, 2020, the Court will deny the Defendant’s requests concerning individual virus screening of prospective jurors,” Warner wrote in an order filed Thursday, adding that he would have court staff monitor jurors for potential infection and alert any prospective jurors who might have been exposed to the virus if such exposure is discovered. Jury selection will continue as planned on Friday, Warner wrote in his order. Already, jurors have been called to the courthouse in groups of 250 to complete questionnaires, and public defenders have raised concerns about the closeness of those prospective jurors and the possibility that the novel coronavirus is unknowingly spreading among the groups.

“We remain seriously concerned that the court has exposed, at this point, 1,700 people to a virus and we believe a doctor or medical professional needs to tell us how we can safely proceed,” Maureen Cain, director of legislative policy and external communications for the Colorado State Public Defender’s office, said Thursday.

The process to select the 18 jurors in the trial will begin in earnest Friday, despite a request from the district attorney’s office that the proceedings be moved to April 6, which the defense objected to. The trial is expected to last for weeks.

Despite the fact that the President's Coronavirus Guidelines urges all of us to avoid social gatherings "in groups of more than 10 people," it seems that trying to make sure a defendant can be condemned to death is thought so important that we have to bring together nearly 2000 prospective jurors in groups of 250.  What?!!?!?!?   

If this was going on in Texas (where, notably, two scheduled executions have been postponed as noted here and here), I suppose I could wrap my head around the eagerness for capital business as usual despite a global pandemic.  But as the article above highlights, death penalty repeal legislation was passes earlier this year in Colorado, which means it is extraordinarily unlikely the defendant here would get a death sentence or face execution even if convicted.  So, in the pursuit of a capital verdict that will not even be worth the paper it is written on, this court is prepared to expose hundred of people to a deadly virus.  Got it.

March 21, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1)

March 20, 2020

Still more reports of growing numbers of prisoners and staffers testing positive for COVID-19

In this post yesterday, while noting that criminal justice and public health experts have known for some time now that the coronavirus epidemic would made its way to prisons and jails, I flagged some early reports of prisoners and prison staffers testing positive for COVID-19 in multiple states and around the world.  A day later, unsurprisingly, I have noticed many more reports of positive tests all over the US map, and I am sure this is NOT a comprehensive list:

Federal: "First ICE Employee Tests Positive for Coronavirus"

Alabama: "Alabama Department of Corrections employee tests positive for coronavirus"

California: "First Two Coronavirus Cases Confirmed at California Prisons"

Indiana: "Hancock County jail staff member tests positive for COVID-19"

Michigan: "Second Michigan Department of Corrections employee tests positive for coronavirus"

Pennsylvania: "Delaware County prison employee tests positive for coronavirus"

Washington: "Port Orchard jail officer tested positive for COVID-19 virus, Kitsap Sheriff’s Office says"

Wisconsin: "Inmates quarantined, prison medical workers sent home after doctor tests positive for coronavirus"

March 20, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Federal Defenders urge Justice Department to take specific immediate steps in response to coronavirus outbreak

I received this morning a copy of a seven-page letter sent yesterday by the Federal Public & Community Defenders to Attorney General William Barr and other Justice Department officials.  That letter (dated March 19, 20202) can be downloaded below, and here is how it started (with footnotes omitted):

We write on behalf of the Federal Public and Community Defenders.  At any given time, Defenders and other appointed counsel under the Criminal Justice Act represent 80 to 90 percent of all federal defendants because they cannot afford counsel.

The COVID-19 global pandemic has turned our nation’s jails and prisons into ticking time bombs.  These jails and prisons do not provide adequate medical care in the best of times. Many prisons and pretrial detention facilities are dramatically understaffed, and populated by individuals who are older and medically compromised.  Today, the Bureau of Prisons (BOP) confirmed that two staff members were presumed positive for COVID-19, marking the first possible cases in the federal prison system.  They are surely not the last. As BOP has itself acknowledged, the risks of the rapid transmission of contagion in the tight quarters of prisons and jails present major challenges in keeping inmates and staff safe and healthy.  This stark reality has been widely recognized.

Lowering the population of prisons and jails is the simplest and most effective way to disrupt the transmission of COVID-19.  Our clients and other incarcerated individuals — along with the correctional officers, attorneys, and contractors who spend their days moving between prisons and the public — are in grave and imminent danger.

We urge you to use existing authority to take immediate and decisive action to both reduce the number of people entering federal detention and release individuals who are already incarcerated.  Failure to do so may well be a death sentence for many.

It is imperative that the Department of Justice immediately take the following two steps:

1. Direct all United States Attorneys’ Offices to minimize arrests, decline to seek detention of individuals at their initial appearance in court and consent to the release of those already detained except in cases involving a specific and substantial risk that a person will cause bodily injury to or use violent force against the person of another; and

2. Direct BOP to utilize its existing authorities under the First Step Act and Second Chance Act to maximize the use of community corrections and compassionate release.

Download 20200319--Letter to AG Barr et al. re COVID-19

March 20, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (1)

Texas Court of Appeals stays a second execution for 60 days due to COVID-19

As reported in this local piece, headlined "Texas Court of Criminal Appeals stops another scheduled execution because of the coronavirus," it seems that the coronavirus outbreak has now clearly created a de facto moratorium on executions in at least one significant state.  Here are the basic details:

A Texas court has stopped a second execution because of the new coronavirus that has swept through the state and world.

The Texas Court of Criminal Appeals issued a stay Thursday for next Wednesday’s scheduled execution of Tracy Beatty, a 59-year-old man convicted more than 15 years ago of killing his mother. Earlier this week, the same court halted the execution planned Wednesday for John Hummel for the same reason.

“We have determined that the execution should be stayed at the present time in light of the current health crisis and the enormous resources needed to address that emergency,” the court said in the order Thursday. The court’s stay lasts for 60 days, after which a new execution date can be set.

Beatty’s attorney filed a motion to halt his upcoming execution shortly after the court stayed Hummel’s execution Monday, citing the “unprecedented proportions” of the pandemic....

As in Hummel’s case, prosecutors were opposed to stopping the execution, however. Smith County District Attorney Jacob Putman said in a filing that COVID-19, the disease caused by the coronavirus discovered in December 2019, has not been shown to impact the state’s ability to carry out an execution. “There has been no evidence that the ‘enormous resources needed to address that emergency’ will also include the handful of TDCJ personnel who will carry out Beatty's execution,” he wrote.

Seven other executions are scheduled in Texas through September, with two set in April.

Given the CDC has urged all of us to avoid gatherings of more than 10 people for the next eight weeks, I would expect April and even May execution dats to also get postponed in this way. And if we are not getting back to normal by May, it will be interesting to see if still further executions get delayed due to the on-going pandemic.

Prior related post:

March 20, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

March 19, 2020

"'Complete chaos': How the coronavirus pandemic is upending the criminal justice system"

The title of this post is the title of this lengthy new USA Today piece. Here are just a few excerpts:

Claramary Winebrenner had a difficult choice to make: keep two pregnant inmates in jail where they might contract coronavirus, or release them knowing they’ll be a danger to themselves and to others.

Both inmates have long histories of methamphetamine abuse. One, who's six months pregnant, has no family. She'll be high in two days if left on her own, said Winebrenner, the prosecutor in rural DeKalb County in Indiana. Under normal times, keeping them incarcerated would have been the easy choice for Winebrenner. But these aren’t normal times.

The coronavirus pandemic has upended the day-to-day operations of the criminal justice system, raising significant questions about what incarceration and access to justice looks like as the virus reaches all 50 states and the District of Columbia.

Everybody, from judges to defendants, now confronts a stark reality. Jury trials have been suspended in more than two dozen states, the District of Columbia and the U.S. Virgin Islands, as well as in dozens more localities. Courthouses have either been restricted from the public or completely shut down. Judges, forced to ensure that the justice system does not grind to a screeching halt, have prioritized more urgent cases, with some holding hearings via video or telephone.

This means defendants who enter the criminal justice system will have to stay there longer, which could raise serious questions about civil liberties and constitutional rights to a speedy trial. Jo-Ann Wallace, president and chief executive of the National Legal Aid and Defender Association, said this also means defendants who are awaiting trial in jail could lose access to their homes, family and jobs — "the cascading effect" that destabilizes livelihoods.

Similar disruptions are happening in federal courts that hear some of the country’s most controversial and consequential cases. The Supreme Court postponed oral arguments for the first time in a century. The executive committee of the Judicial Conference, the policy-making body for federal courts, is asking Congress for $7 million in additional funds to pay for mental health and drug treatments that have become costlier because they must now be given individually instead of in groups.

The country's notoriously backlogged federal immigration court system is now largely at a standstill. Te Justice Department closed several courts and postponed hearings of those who are not in custody.

Meanwhile, prosecutors like Winebrenner face an uneasy, immediate question: whether to release defendants they believe should be incarcerated to avoid viral outbreaks in jails, where close quarters and overcrowding would speed the spread of the deadly and highly contagious COVID-19. “Let’s just say we’ve kind of moved the bar up. We have to get some people out of there … and bust through some rules that are very good rules for some reasons, but in this situation, some people need to get out,” she said....

For Derwyn Bunton, the chief public defender in New Orleans, the worst-case scenario is clear: Arrests will continue as if everything is business as usual, clogging up court dockets that are not moving. Reluctance to release nonviolent offenders will overcrowd jails. Defendants, still innocent until proven guilty, will sit there indefinitely. The epidemic will make its way inside facilities, where hygiene products are limited and social distancing isn't an option.

Bunton has pushed for not arresting people over minor offenses and releasing inmates accused of nonviolent crimes to avoid that worst-case scenario. But he’s been met with resistance from law-enforcement officials who say bending the rules would result in lawlessness.

Such is the conundrum in jurisdictions across the country, where defense attorneys and prosecutors with competing interests are forced to find common ground to help stem the public health crisis. “We can maintain public safety without jeopardizing public health,” Bunton said. “The cost to the community of keeping those folks in jail on nonviolent or technical violations is outweighed by the need to prevent the spread of the virus.”...

Rob Sanders, the prosecutor in Kenton County in Kentucky, said he’s seeing far more people being released from jail than at any other time in his 21 years in public service. Nearly every inmate accused of nonviolent offenses is being considered for release, he said. That includes not only defendants facing minor drug and property crimes, but also felons caught with guns and those accused of drug trafficking. “I’m apprehensive. Certainly, we don’t want to make any law-abiding citizens get victimized by someone who might otherwise have been incarcerated. That’s my biggest concern,” he said.

Sanders also fears that many defendants will not show up to hearings once court operations are back to normal. But he also acknowledges that these are unprecedented times. Taking a chance by releasing certain inmates “is something we need to do,” he said.

March 19, 2020 in Impact of the coronavirus on criminal justice | Permalink | Comments (1)

Growing reports of growing numbers of prisoners and staffers testing positive for COVID-19

Criminal justice and public health experts have known for some time now that it was only a matter of time before the coronavirus epidemic made its way to prisons and jails.  Here are just some headlines I have seen showing surely just some of the locations where these issues are very real right now:

In the United States


March 19, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (3)

March 18, 2020

"ACLU Demands the Release from Prisons and Jails of Communities Vulnerable to COVID-19"

The title of this post is the title of this new ALCU press release.  Here are excerpts:

Today, the national American Civil Liberties Union and 14 ACLU affiliates sent letters to the federal government and state and local officials across the country outlining immediate actions to take to protect those involved in the criminal legal system, who are particularly vulnerable to the pandemic.  They are asking to ensure that system actors are responding to recommendations put forth by public health experts, specifically calling for the immediate release from prisons and jails of communities identified by the Centers for Disease Control and Prevention (CDC) as vulnerable, as well as people currently in pretrial detention, to prevent a public health crisis.

This series of recommendations addresses a number of stakeholders in the criminal legal system. In the letters, the ACLU is calling on:

  • Governors to grant commutations to anyone identified by the CDC as particularly vulnerable whose sentence would end in the next two years, to anyone whose sentence would end in the next year, and to anyone currently being held on a technical (crimeless) supervision violation.
  • Police to stop arresting people for minor offenses and in other circumstances issue citations or desk-tickets in lieu of arrest so that people can return home, balancing the need for arrest with the overwhelming public safety concerns presented by coronavirus.
  • Prosecutors to avoid cash bail requests and move for release in all but the very few cases where pretrial detention is absolutely the least restrictive means necessary to ensure a person’s return to court. They should also institute a review-and-release protocol in cases which bail was already sought in the past 30 days and the person is currently detained.
  • Judges to allow anyone with an open criminal case and upcoming hearing the chance to voluntarily waive that hearing or conduct that hearing via telephone or video conference.
  • Sheriffs to ensure that facilities are as empty, safe, and clean as possible and that hygiene products are free and readily available to incarcerated people and staff.
  • Probation and Parole Agents and Parole Boards to expedite and expand release opportunities for incarcerated people, reducing the population in prisons as recommended by health experts. Boards should institute a presumption for release for all people who have a parole hearing scheduled in the next two years....

Additionally, the ACLU has asked the U.S. Department of Justice and Federal Bureau of Prisons to heed the recommendations of public health professionals and release those most vulnerable to coronavirus and COVID-19 and to diminish intake of others to reduce overcrowding. These agencies should work with the Congress and the Executive to utilize all means available at the federal level, including clemency, to keep and send people home.  With these actions, federal, state, and local officials can create a culture in which transparency, safety, and the health of all people is the paramount concern.

The ACLU's letter to state and local officials is at this link

The ACLU's letter to the U.S. Department of Justice and the Federal Bureau of Prisons is at this link

March 18, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

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 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Mid-week round up of some stories on impact of the coronavirus on criminal justice, crime and punishment

Just a few days since my last few round-ups of headlines here (March 12) and here (March 13), there are now far too many stories about the impact of the coronavirus on criminal justice, crime and punishment to even begin to cover this part of our new world order with any comprehensiveness.  But here are a trio of pieces and commentaries on various fronts that stood out to me as I reviewed some headlines:



UPDATE: Because it has some specific federal prison reform recommendations, I wanted to add here this new FoxNews commentary headlined "Tolman and Harris: Coronavirus crisis requires this action be taken for elderly prison inmates." Here is an excerpt:

Even before we were hit by an almost unprecedented health crisis, the Office of the Inspector General found that the Bureau of Prison (BOP) facilities lacked the appropriate staffing, and provided limited training, to care for aging inmates. These problems will only get worse during this pandemic as prisons struggle to maintain staffing levels, manage social distancing protocols among the general population, and quarantine and treat the sick.

Older inmates (age 60 and older) are far and away the most expensive to incarcerate, mostly due to their medical needs. In fact, that same Inspector General’s report cited BOP data showing that facilities with the highest percentages of aging inmates spend five times more per inmate on medical care, and 14 times more per inmate on medication, than facilities with the lowest percentage of aging inmates.

In 2013, the cost of caring for aging inmates at the federal level topped $880 million, roughly 20 percent of the federal corrections budget. Now imagine the cost, societal and financial, once coronavirus infects a jail or prison, which is just a matter of time.

Given the current crisis, we are hopeful President Trump would work diligently to ensure his administration facilitates the transfer of these elderly, sick and vulnerable people to home confinement as soon as possible. Similar to a nursing home, the disease will spread through these facilities like fire through a dry barn, endangering corrections officers, prison staff, healthcare workers and the surrounding community, and sending costs soaring well past $1 billion.

The Elderly Home Detention Pilot Program — re-authorized and expanded as part of the bipartisan First Step Act — allows nonviolent federal prisoners to be transferred to home confinement if they are 60 years old or older and have served two-thirds of their sentence.  Now, Congress is considering HR 4018, a measure that builds on already-enacted bipartisan reforms, allowing the two-thirds calculation to include good-time credits, meaning additional elderly prisoners would be eligible for home detention.

In addition to this technical fix, we would argue that this emergency legislation warrants lowering the 60-year threshold to 55, the age at which recidivism rates drastically decline.  We would further advocate for the transfer of any inmates that are either terminally ill (as the compassionate release provision already allows) or have a medical condition that makes them more susceptible to contracting COVID-19.  To be clear, the Bureau of Prisons would still have ultimate control over whether an inmate would be eligible, and wouldn’t free people like Bernie Madoff, who are serving life sentences.

Given the current crisis, we are hopeful President Trump would work diligently to ensure his administration facilitates the transfer of these elderly, sick and vulnerable people to home confinement as soon as possible. In fact, an emergency proposal should give the BOP the flexibility to suspend its own regulations and transfer inmates as soon as possible, and/or give inmates the opportunity to take their request for transfer to home confinement directly to a judge....

The Senate is poised this week to pass additional measures to help families and businesses suffering the economic costs of this crisis. That package should include simple measures to protect people’s health by transferring deserving elderly and sick prisoners to home detention as soon as possible.

March 18, 2020 in Impact of the coronavirus on criminal justice | Permalink | Comments (1)

March 17, 2020

Resources from the Prison Policy Initiative and the Appeal (and others) to track and advance responses to the COVID-19 pandemic

A helpful colleague from the Prison Policy Initiative sent me the following email with links to various resources for tracking and advancing responses to the on-going coronavirus epidemic:

The Prison Policy Initiative just released a new resource for writers covering COVID-19.  We’re now tracking which prisons and jails are taking appropriate steps to slow the spread of the coronavirus.  Check out this page, which we’ll be updating periodically.

On a slightly different topic: We’ve just published a template letter that local activists can use to pressure jails — most of which are currently suspending in-person visits — to help families stay connected by making phone and video calls free. See our letter at this link.

If you’re researching COVID-19 and our pages don’t have what you need, try this excellent resource page curated by The Justice Collaborative.   

UPDATE: I also receive a note for the folks at The Appeal about some terrific resources that the Appeal has put together to help track what local governments are actually doing or announcing (especially around prisons/jails):

The Coronavirus Response: Spotlight On State & Local Governments

This Tool Can Track Changes To Incarcerated Populations Amid The Coronavirus Pandemic

ANOTHER UPDATE: Steve Sady, Chief Deputy Federal Public Defender in Oregon, sent along this link to his helpful memo titled "Law in the Time of Corona: Federal Defense Edition." The memo reviews in short order how at "every stage of the criminal process," federal defense attorneys can and should seek to evaluate what they can do for clients past and present. Here are excerpts from some of the sentencing and prison discussions:

At sentencing, we can argue that judges should consider the safety of the client and others in prison in determining whether and how long to incarcerate. Vulnerability to physical attacks was recognized in the pre-Booker era when the Supreme Court approved a Second Circuit case that allowed departure under the mandatory Guidelines based on “potential for victimization” due to the defendant’s “diminutive size, immature appearance, and bisexual orientation.” Koon v. United States, 518 U.S. 81, 107 (1996) (citing United States v. Lara, 905 F.2d 599 (2d Cir. 1990)). Vulnerability to coronavirus, especially for our sick, disabled, and aged clients, seems like a direct analogy to vulnerability to victimization by others in prison and a reason for non-custodial or reduced sentences....

For prisoners serving a sentence who are within or approaching one year of their projected release date, we should be seeking maximum community corrections so they are no longer adding to the crowded and dangerous prisons. Under 18 U.S.C. 3624(c), Congress expanded the available time in community corrections to up to one year, with six months or ten percent, whichever is less, in home confinement....

The new compassionate release provisions of the First Step Act permit the sentencing court to reduce sentences based on “extraordinary and compelling reasons” under 18 U.S.C. § 3582(c)(1)(A)(i) [background here]. The prisoners eligible for the reduction include the most vulnerable to coronavirus: the sick, the disabled, and the aged. In [one recent] opinion granting time served for an old lifer who had done 30 years, the judge considered as one of the factors favoring release physical vulnerability to attack (here). The same logic applies to vulnerability to coronavirus, both as a factor making the situation “extraordinary and compelling” and as a factor under 18 U.S.C. 3553(a) why the motion should be granted. We should be thinking creatively about other jurisdictional hooks for obtaining a second look at the sentences our clients are serving.

YET ANOTHER UPDATE: From the always terrific Marshall Project, a coronavirus archive of stories, including a resource titled "Tracking Prisons’ Response to Coronavirus"

March 17, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

New letter from Prez Trump's former lawyer, Michael Cohen, seeking sentence modification citing this blog's coronavirus coverage

Via my pals on Twitter, I just learned that Michael Cohen's lawyer, Roger Bennet Adler, has today filed this letter to support his pending application for sentence modification so that Cohen can finish serving his remaining time (about 20 months) on home confinement rather than in a federal prison.  This letter is itself only a page long, but it also includes a reference to, and an attachment of, this blog post I wrote yesterday about the need and importance of all federal officials taking swift measures to try to limit the spread and harm of the coronavirus among the federal prison population.

Kudos to Mr. Adler, and I hope all defense lawyers (and prosecutors and judges and everyone else) will feel free to use any and all resources and materials I am assembling here.  No need to ask, no need to wait, take whatever you need and make good (responsible) use of it!

Prior coronavirus posts:

Prior Michael Cohen sentencing posts:

March 17, 2020 in Impact of the coronavirus on criminal justice, On blogging, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

NYC Board of Correction calls on city to begin the process of releasing certain prisoners ASAP in response to COVID-19

I just saw this notable new statement from the New York City Board of Correction. Here is how it gets started:

The New York City Board of Correction, the independent oversight Board for the City’s jail system, is calling on the City to work with all its criminal justice partners to: (1) immediately remove from jail all people at higher risk from COVID-19 infection; and (2) rapidly decrease the jail population. While Department of Correction (DOC) and Correctional Health Services (CHS) staff continue to perform heroic work to prevent the transmission of COVID-19 in the jails and maintain safe and humane operations, the City must drastically reduce the number of people in jail right now and limit new admissions to exceptional circumstances. The City can follow the leads of Los Angeles County and Cuyahoga County (Ohio) which have already begun to release people to minimize a potential outbreak. The City must begin this process now. The City’s jails have particular challenges to preventing disease transmission on a normal day and even more so during a public health crisis.

Significantly fewer people in jail will limit the spread of COVID-19 infection among people in custody and those who work in the jails, minimize the number of people in custody who will need medical care, decrease the density of housing areas for people who remain in jail, and allow New Yorkers to maintain connections with and support from their loved ones. DOC and CHS, along with City partners, must work with the Chief Judge of New York State, Governor Cuomo, District Attorneys, and the Defense Bar to begin identifying and releasing people this week, prioritizing:

  • People who are over 50;
  • People who have underlying health conditions, including lung disease, heart disease, diabetes, cancer, or a weakened immune system
  • People detained for administrative reasons (including failure to appear and parole violations); and
  • People serving “City Sentences” (sentences of one year or less).

Prior coronavirus posts:

March 17, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Appeals Court Delays Texas Execution Due To Coronavirus Outbreak"

The title of this post is the headline of this notable story out of Texas concerning another remarkable echo effect of the global pandemic we are facing. Here are the details:

The outbreak of the novel coronavirus prompted the top Texas criminal appeals court on Monday to stay for 60 days the scheduled execution of a man condemned for killing his family.

The Texas Court of Criminal Appeals rejected all grounds of John William Hummel’s appeal but said it would postpone the scheduled Wednesday execution “in light of the current health crisis and the enormous resources needed to address the execution.”

Hummel, 44, was convicted in 2011 of capital murder in the December 2009 fatal stabbing of his pregnant wife, Joy Hummel, 45, and fatal bludgeoning of his father-in-law, Clyde Bedford, 57, with a baseball bat. Evidence showed he also used the bat to beat to death Jodi Hummel, his 5-year-old daughter, before he torched their home in the Fort Worth suburb or Kennedale. However, he was only convicted of capital murder in the deaths of his wife and father-in-law....

One of the issues that Michael Mowla, Hummel’s attorney, had raised in his efforts to stop the execution was a concern that the process involved with putting Hummel to death “may itself assist in spreading COVID-19.”

A number of people either take part or witness the execution in the death chamber at the state penitentiary in Huntsville, including correctional officers, attorneys, physicians and family members or friends of the inmate and of the victims. “Gathering all these people in one location presents a substantial risk of transmission of COVID-19/Coronavirus if anyone is infected,” Mowla wrote in a petition to the appeals court last week....

The Texas Department of Criminal Justice had been prepared to carry out the execution as officials had instituted a screening process for people who would have witnessed it, said agency spokesman Jeremy Desel. Execution witnesses would have been subject to the same screening that department employees have to go through before entering a prison unit. The screening involves questions based on travel, potential exposure to the coronavirus and health inquiries, Desel said.

The death chamber is not a heavy traffic area and is completely isolated from all parts of the prison in Huntsville, Desel said. “But it is thoroughly cleaned, consistently and constantly. We are taking precautions throughout the prison system,” he said.

Notably, according this Upcoming Executions page on the Death Penalty Information Center's website, Texas has five other executions scheduled over the next 60 days. I would predict that, unless we get some very good news about the spread of COVID-19 very soon, all these other executions would appear very likely to be postponed. In addition, I would be surprised if Texas or any other state were to start scheduling any new executions anytime soon.

This DPIC fact sheet details that we have so far five executions in the United States this year. As of this writing, I am thinking we might not end up having any more executions in 2020, which would mean the country would have its lowest number of executions since 1983.

March 17, 2020 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

March 16, 2020

When and how will federal authorities start systematically modifying federal sentencing and prison realities in response to COVID-19 outbreak?

I have previously already blogged here (March 3) and here (March 12) and here (March 13) on the potential impact of the coronavirus on prisons and jails, but it seems the world changes a few dozen times each day when it comes to this global pandemic.  And now it is obvious that sentencings and prisons are already being impacted dramatically, with this Crime Report piece providing just some of the details.  The piece is headlined "Corrections Authorities Eye Inmate Release, Halts in Visits, to Prevent Virus Spread," and here are excerpts:

Authorities have begun focusing on America’s overcrowded prisons and jails — environments where “social distancing” can be problematic — as critical danger points for the spread of Covid-19.  Actual infections and fear of the coronavirus have begun to grind the scales of justice to a halt in pockets of the U.S. under states of emergency as judges and lawyers struggle to balance the constitutional rights of defendants against the concerns that the public institutions could unwittingly become contamination sites, CNN reports.

“The whole system is coming to a halt,” said New York City criminal defense lawyer Gerald Lefcourt. “I’m sure everybody is wait-and-see at the moment,” he added, saying he wouldn’t be surprised if prosecutors and defense lawyers seek to resolve cases outside of a trial, either through plea bargains or dropped cases....

In Ohio, dozens of inmates were released from jail sooner than expected to help reduce the population inside the Cuyahoga County jail, as a way to minimize potential virus outbreaks inside jails. The Ohio county judges held a rare court session to hear cases involving low-level, non-violent offenders on Saturday, according to Channel 11 News. Some 38 inmates were released from the Cuyahoga County jail after they appeared in court.

In Michigan’s Kent County, bond and sentence modifications are being discussed to allow some inmates to be released. “We are taking precautions, like everyone else, and making arrangements to deal with what is presented to us,” Kent County Sheriff Michelle LaJoye-Young told ABC 13.

And in Minnesota, the state’s public defender recommened that nonviolent offenders should be released from jail because of the threat of coronavirus. “I am no doctor, but I think it’s better for them to be on quarantine at home,” said Bill Ward told the Pioneer Press on Sunday. “The request is to treat them humanely.” Two jails in southern Minnesota have each had one inmate with a confirmed case of the disease, Ward said. Diseases from the common cold to the flu spread more quickly in prisons — so coronavirus poses a greater risk for inmates.

Efforts to limit the spread of disease in the nation’s corrections systems also included suspending or curtailing visits to prisoners.

This new New York Times commentary effectively details why many working in the criminal justice arena have been thinking about this issue for some time already.  The extended piece should be read in full, and its full headline highlights the themes: "An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues: The conditions inside, which are inhumane, are now a threat to any American with a jail in their county — that’s everyone."  Here are passages:

In America’s jails and prisons, people share bathrooms, laundry and eating areas. The toilets in their cells rarely have lids. The toilet tank doubles as the sink for hand washing, tooth brushing and other hygiene. People bunked in the same cell — often as many as four — share these toilets and sinks. Meanwhile, hand sanitizer is not allowed in most prisons because of its alcohol content. Air circulation is nearly always poor. Windows rarely open; soap may only be available if you can pay for it from the commissary.

These deficiencies, inhumane in and of themselves, now represent a threat to anyone with a jail in their community — and there is a jail in every county in the United States. According to health experts, it is not a matter of if, but when, this virus breaks out in jails and prisons. People are constantly churning through jail and prison facilities, being ushered to court hearings, and then being released to their communities — nearly 11 million every year.

“We should recall that we have 5,000 jails and prisons full of people with high rates of health problems, and where health services are often inadequate and disconnected from the community systems directing the coronavirus response,” said Dr. Homer Venters, former chief medical officer of the New York City jail system. “Coronavirus in these settings will dramatically increase the epidemic curve, not flatten it, and disproportionately for people of color.”

Jails are particularly frightening in this pandemic because of their massive turnover. While over 600,000 people enter prison gates annually, there are about 612,000 people in jail on any given day. More than half of the people in jail are only in there for two to three days. In some communities, the county jail or prison is a major employer. Jail staff members are also notoriously underpaid, may not have paid sick leave and are more likely to live in apartments, in close and frequent contact with neighbors. They return home daily to aging parents, pregnant partners or family members with chronic conditions.

Our penal system should have received more comprehensive guidance and material support from the Department of Justice, far earlier in this crisis. Like much of the federal level response, it is falling short....

American officials can learn from the harrowing story of South Korea’s Daenam Hospital. In late February, South Korea had already reported more than 3,150 confirmed cases, and of these, 101 were from patients in the Daenam psychiatric ward.  Seven of these patients have now died.  All but two patients in the ward contracted Covid-19. The ward was put on lockdown, in an attempt to confine the spread of the virus. Instead, the lockdown issued was a death sentence to many inside....

Aging people who are released after serving long sentences have a recidivism rate close to zero.  Governors and other public officials should consider a one-time review of all elderly or infirm people in prisons, providing immediate medical furloughs or compassionate release to as many of them as possible.

Though this NY Times commentary makes a pitch to "Governors and other public officials," I strongly believe criminal justice advocacy groups should be focusing advocacy now toward President Trump, Congress and federal judges.  For starters, if the federal government leads with a strong proactive response, many states and localities are likely to follow suit.  And it seems there are plenty executive branch tools already available under current law ranging from (mass) clemency relief for older and at-risk prisoners, to the Justice Department and the Bureau of Prisons (BOP) recommending (mass) compassionate release or release to home confinement for older and at-risk folks or perhaps for everyone who has served, say, 75% of their prison time.

Congress can and should get involved ASAP by enacting emergency legislation that could, for example, give BOP discretion to release any and every prisoner that has been scored at low-risk under the FIRST STEP Act's new risk tools.  Or, perhaps better yet, Congress could authorize the creation of a new "emergency agency" tasked with immediately devising the most effective and humane and just way to reduce the number of persons, in both the federal system and in state systems, now seemingly subject to having a jail or prison sentence turned into a possible death sentence by COVID-19.

Federal judges can and should be proactive here as well. In addition to re-calibrating their 3553(a) sentencing analysis given the ugly new reality of prison life, judges should sua sponte reconsider any and all past denied compassionate release motions because times surely have changed.  I think every single federal prisons has an argument that the coronavirus has created ""extraordinary and compelling reasons" that warrant a sentence reduction, and I wonder if anyone has thoughts about seeking a national class action on behalf of all federal prisoners under the statutory provisions of 18 U.S.C. § 3582(c)(1)(A) in order to at least establish a baseline of eligibility for sentence modifications. 

I could go on and on, and I likely will in some coming posts.  But the title of this post asks "when and how" not "if" our normal rules will change because I sense some federal judges and prison officials are already working on COVID responses in various scattered ways -- in part because everyone realizes that it is essential for the health of federal prison workers, as well as for prisoners, for there to be smart efforts to reduce prison populations amidst this global pandemic.  At some point, these scattered efforts will become a systematic plan, I sure hope that happens sooner rather than later.

Prior coronavirus posts:

March 16, 2020 in Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)