Sentencing Law and Policy

Misguided dicta from Third Circuit panel on procedural aspects of sentence reduction motions under § 3582(c)(1)(A)

In many prior posts since the FIRST STEP Act was enacted, I have made much of the provision that allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without needing a formal motion brought and supported by the Bureau of Prisons.  Well before anybody had heard of COVID-19, this provision seemed so very significant because, if applied appropriately and robustly, it could enable many hundreds (and perhaps many thousands) of federal prisoners to have their excessive federal prison sentences reduced.

Of course, as I have highlighted in recent posts here and here, sentence reduction motions under § 3582(c)(1)(A) have become hugely important in the coronavirus world of federal sentencing.  As SDNY Chief Judge Coleen McMahon astutely stated this week in US v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) (download here), "releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19."   As noted in this post, FAMM has wisely urged tens of thousands of federal prisons to consider pursuing sentence reduction motions under § 3582(c)(1)(A) during this terrible time when any federal prison term can become a potential death sentence.

But, importantly, a procedural issue can complicate sentence reduction motions under § 3582(c)(1)(A) because the text now now provides: "the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment..."  In other words, this text provides that a sentence reduction motion can be acted upon by the court (1) immediately if brought by BOP, or (2) as soon as a defendant requests such a motion and that request is formally/finally denied by BOP or 30 days has lapsed, "whichever is earlier."  Because the Director of the Bureau of Prisons rarely brings motions on behalf of prisoners and because BOP's administrative process for reviewing requests is historically quite slow, this provision has often functionally meant that courts would consider these motions 30 days after a BOP request is made by the defendant.

Under normal circumstances, this procedural provision struck me as a reasonable way to give the Bureau of Prisons a first opportunity to consider supporting a sentence reduction motion before the defendant heads to court. (That said, I have heard various ugly reports about the BOP treating an inmate poorly in various ugly ways after he has requested  a sentence reduction motion).  But in a COVID-19 word in which every day brings increasing positive cases and deaths among federal inmates and staff, waiting 30 days to rule on a compelling sentence reduction motion under § 3582(c)(1)(A) could literally have deadly consequences for an inmate and others he comes into contact with.  (It was only roughly 30 days ago that the US had its first COVID death, we could be over 10,000 US deaths by the end of this weekend.)   Consequently, I was not surprised to see, in US v. Perez, No. 17 Cr. 513-3 (AT) (SDNY Apr. 1, 2020) (download here), a federal judge waive the "30-day lapsing" requirement based on the determination that, for the defendant, "remaining incarcerated for even a few weeks increases the risk that he will contract COVID-19," and so "requiring exhaustion ... would be directly contrary to the purpose of identifying and releasing individuals whose circumstances are 'extraordinary and compelling'."  

This extended discussion is a prelude to noting a troubling opinion handed down by a Third Circuit panel in United States v. Raia, No. 20-1033 (3d Cir. Apr. 2, 2020) (available here).  This case involved a 68-year-old New Jersey politician given a three-month sentence who reported to a federal prison on March 3 while the government was pursuing an appeal of his sentence as to low.  With his appeal pending, the defendant first "asked BOP to move for compassionate release on his behalf. But before BOP responded, and before thirty days passed, Raia filed his own motion with the District Court for compassionate release given the present pandemic caused by COVID-19. The district court dismissed the motion because it decided the "pending appeal divested it of jurisdiction," but it also indicated it would grant the motion if it could.

In the Third Circuit, Raia did not appeal this order but instead "filed a motion asking this Court to decide his compassionate release motion [or] to return jurisdiction to the District Court by dismissing the government’s appeal without prejudice [under FRAP 3(a)(2)." In response, the Third Circuit panel starts on solid ground: "We cannot decide Raia’s compassionate-release motion in the first instance. Section 3582’s text requires those motions to be addressed to the sentencing court." That strikes me as right not only as a matter of statutory text, but also as a matter of sound policy: district motions for sentence reductions ought to be addressed in the first instance by sentencing courts, not appeals courts. Continuing to address points raised by Raia, the panel then says (cites and quote removed): "Nor can we dismiss the government’s appeal under Rule 3(a)(2). Rule 3(a)(2) dismissal is a sanction for failing to comply with procedural rules. Here, there is nothing the government has failed to do."

Having addressed are rejected claims by the appellant, things go sideways as the Third Circuit panel says the following (which I am calling dicta it does not respond to claims actually brought by the litigant):

We could, however, remand the case to the District Court while retaining jurisdiction over the government’s appeal under Rule 12.1.  That would allow the District Court to consider Raia’s compassionate-release request in the first instance.

But any remand would be futile.  As noted, Raia failed to comply with § 3582(c)(1)(A)’s exhaustion requirement: BOP has not had thirty days to consider Raia’s request to move for compassionate release on his behalf, nor has Raia administratively exhausted any adverse decision by BOP.  Although the District Court’s indicative ruling did not mention the exhaustion requirement, it presents a glaring roadblock foreclosing compassionate release at this point.

Accordingly, since Rule 3(a)(2) is inapt and since remanding the matter under Rule 12.1 would be futile, we will deny Raia’s motion outright.

This "futile" language here creates the problematic impression that "30-day lapsing/exhaustion" language in 18 U.S.C. § 3582(c)(1)(A) is tantamount to a jurisdictional bar to the granting of a sentence reduction motion.  But the language and structure of this requirement makes it appear much more like what the Supreme Court calls "nonjurisdictional claim-processing rules."  Fort Bend County v. Davis, No. 18-525 (S. Ct. June 3, 2019) (available here).  With COVID-19 making every day matter, this is a critically important distinction because claim-processing rules can be forfeited if not raised by a party and might be subject to equitable exceptions.  In other words, if and when the "30-day lapsing/exhaustion" language is properly understood by courts as a claim-processing rules, then courts can (1) ask federal prosecutors if they are willing to waive/forfeit the requirement in a particular case, and courts may be able (2) on their own, as in the Perez case, to decide that the requirement need not be meet given the equities of a particular case.

I hope that counsel might be seeking reconsideration or even an emergency rehearing en banc in Raia.  Because it is not at all clear that a remand would be futile, and especially because the Third Circuit panel here spun off some misguided dicta on an issue that appears not to have even been briefed, this portion of the opinion ought to be retracted at least until a court considers these (now life-and-death) issues with the assistance of full briefing.

UPDATE: I just noticed that the same panel that decided Raia also handed down last week a more defendant-friendly COVID opinion in United States v. Roeder, No. 20-1682 (3d Cir. Apr. 1, 2020) (available here).  Here is how this (unpublished) opinion starts and ends:

Calvin Roeder filed an emergency appeal seeking review of the District Court’s denial of his motion to postpone his self-surrender date in light of the COVID-19 pandemic. We reversed the District Court’s denial on March 29, 2020. We now provide the reasons for our order....

Under ordinary circumstances, it would be our preference to vacate the District Court’s order and permit it to provide substantive conclusions concerning the merits of Roeder’s motion.  These are not, however, ordinary times.  In light of the exigent circumstances surrounding the COVID-19 pandemic and the timing of our ruling (less than 24 hours before Roeder’s scheduled surrender date), we were compelled to grant relief and reverse the District Court’s order — even though the existence of a widespread health risk is not, without more, a sufficient reason for every individual subject to a properly imposed federal sentence of imprisonment to avoid or substantially delay reporting for that sentence.

While the COVID-19 pandemic has given rise to exceptional and exigent circumstances that require the prompt attention of the courts, it is imperative that they continue to carefully and impartially apply the proper legal standards that govern each individual’s particular request for relief.  If, in the future, Roeder seeks an additional modification of his self-surrender date, we expect that the District Court will provide an adequately reasoned decision so that, if an appeal follows, we may engage in a thorough appellate review.

Attorney General Barr issues new memo calling for BOP to "move with dispatch" to get vulnerable inmates out of federal prison COVID hot-spots

As reported in this new Politico piece, headlined "Barr to speed releases at federal prisons hard hit by virus," it appears that the US Attorney General is coming to understand the dire situation being created by COVID-19 in federal prisons. Here are tonight's important new developments

Attorney General Bill Barr is ordering federal prison officials to intensify their efforts to release “vulnerable” inmates at three prison complexes that are struggling to contain major outbreaks of the coronavirus.

Barr said he’s seeking to speed the process of sending selected inmates at prisons in Danbury, Conn., Oakdale, La., and Elkton, Ohio to home confinement because of the danger serious levels of infection at those facilities pose to elderly prisoners and those with pre-existing health conditions.

“We are experiencing significant levels of infection at several of our facilities,” Barr said in the new memo dated Friday and obtained by POLITICO Friday night. “We have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions.”

Barr also said he was exercising for the first time expanded release authority Congress granted him in the stimulus bill known as the Cares Act that was signed into law by President Donald Trump last Friday.

Under previous law, federal prisoners were only eligible for home confinement after they’d completed 90 percent of their sentences. However, the new legislation allows for earlier releases if the attorney general formally declares an emergency, which he did Friday.

“The CARES Act now authorizes me to expand the cohort of inmates who can be considered for home release upon my finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons,” Barr wrote. “I hereby make that finding and direct that … you give priority in implementing these new standards to the most vulnerable inmates at the most affected facilities.”...

A total of 522 inmates were moved to home confinement following Barr’s directive last week, according to the Bureau of Prisons.

Barr’s public comments supporting early releases for some inmates seemed to be in tension with remarks Trump made Thursday, where he lashed out at state and local officials for endangering the public by releasing convicted criminals and said he might even step in to try to halt such releases....

Barr's new directive stresses that public safety concerns must be taken into account when considering whom to release. "While we have a solemn obligation to protect the people in BOP custody, we also have an obligation to protect the public," the attorney general wrote. "That means we cannot simply release prison populations en masse into the streets. Doing so would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses."

While Barr emphasized that early releases must be assessed on a case-by-case basis, he said that some precautions normally taken in such situations could be waived in the current crisis, such as GPS monitoring for those being sent home.

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
• 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 
• 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
• Federal Defenders write to AG Barr to detail concerns with BOP/DOJ response to COVID-19 
• Latest BOP numbers with ever growing number of COVID cases (and deaths) in ever growing number of federal facilities

Latest BOP numbers with ever growing number of COVID cases (and deaths) in ever growing number of federal facilities

Last Friday (March 27) as detailed in this post, the BOP's COVID-19 Update page was reporting "only" 14 federal inmates and 13 federal prison staffers had tested positive for COVID-19.  This Friday (April 3), BOP has updated its cases reporting that 91 federal inmates and 50 federal prison staffers have tested positive.  Here is where these latest BOP numbers come from:

(Inmate) 4/03/2020 - USP Atlanta (5); MDC Brooklyn; FCI Butner Low (7); FMC Butner; FCI Butner Medium I (3); USP Canaan; FCI Danbury (20); FCI Elkton (2); FCI Forrest City Low (2); USP Lompoc (14); MCC New York (4); FCI Oakdale I (18); FCI Otisville; FCI Yazoo City Medium (4); FCI Yazoo City Low; RRC Brooklyn, NY (4); RRC Janesville, WI; RRC Phoenix, AZ; FLM Guam.

(Staff) 4/03/2020 - Atlanta, GA (3); Brooklyn, NY (4); Butner, NC; Chicago, IL (3); Danbury, CT (6); Lisbon (Elkton), OH; Forrest City, AR; Leavenworth, KS (no inmate contact); Lompoc, CA (2); Milan, MI; New York, NY (5); Oakdale, LA (4); Otisville, NY; Ray Brook, NY (6); Talladega, AL (3); Tucson, AZ; Yazoo, MS (2); Central Office, Washington, DC; Grand Prairie Office Complex, Grand Prairie, TX; Southeast Regional Office, Atlanta, GA.

By my count, this list shows 19 different federal prison facilities with inmates who have tested positive and 20 different communities with federal prison staff who have tested positive.  And, as I have said before, there is every reason to fear that these numbers represent the tip of big iceberg.  Plus, as news reports reveal, at least seven federal inmates have dies from COVID-19:

• "Fifth inmate at Oakdale federal prison dies from COVID-19"
• "2nd Ohio federal inmate who tested positive for COVID-19 dies"

Massachusetts Supreme Judicial Court issues lengthy opinion to address COVID issues in state jails and prisons

The Massachusetts Supreme Judicial Court this week heard argument on an emergency petition from defense lawyers seeking a reduction of prisoners to limit outbreaks of the coronavirus in the state’s prison and jails. This afternoon, the Mass SJC issued this 45-page opinion, and here are excepts from how it gets started:

The petitioners, the Committee for Public Counsel Services (CPCS) and the Massachusetts Association of Criminal Defense Lawyers (MACDL), bring our focus to the situation with respect to COVID-19 confronting individuals who are detained in jails and houses of correction pending trial, and individuals who have been convicted and are serving a sentence of incarceration in the Commonwealth.  To allow the physical separation of individuals recommended by the CDC, the petitioners seek the release to the community of as many individuals as possible as expeditiously as possible, indeed, on the day of argument in this case, according to one of them.  They offer a number of different legal theories under which a broad-scale release might be accomplished.

We conclude that the risks inherent in the COVID-19 pandemic constitute a changed circumstance within the meaning of G. L. c. 276, § 58, tenth par., and the provisions of G. L. c. 276, § 557.  To decrease exposure to COVID-19 within correctional institutions, any individual who is not being held without bail under G. L. c. 276, § 58A, and who has not been charged with an excluded offense (i.e., a violent or serious offense enumerated in Appendix A to this opinion) is entitled to a rebuttable presumption of release.  The individual shall be ordered released pending trial on his or her own recognizance, without surety, unless an unreasonable danger to the community would result, or the individual presents a very high risk of flight....

With respect to those individuals who are currently serving sentences of incarceration, absent a finding of a constitutional violation, our superintendence power is limited. Those who have been serving sentences for less than sixty days may move to have their sentences revised or revoked under Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016) (Rule 29).  Those who are pursuing appellate proceedings or a motion for a new trial may seek a stay of execution of sentence...

Where there is no constitutional violation, however, art. 30 of the Massachusetts Declaration of Rights precludes the judiciary from using its authority under Rule 29 to revise and revoke sentences in a manner that would usurp the authority of the executive branch.  Removing any limitation on the time in which a motion to revise and revoke a sentence may be brought, however, would do precisely that.  See Commonwealth v. McCulloch, 450 Mass. 483, 488 (2008), quoting Commonwealth v. McGuinness, 421 Mass. 472, 476 n.4 (1995) ("A judge may not interfere with the executive function of the parole board by using postconviction evidence in an order to revise and revoke").

To afford relief to as many incarcerated individuals as possible, the DOC and the parole board are urged to work with the special master to expedite parole hearings, to expedite the issuance of parole permits to those who have been granted parole, to determine which individuals nearing completion of their sentences could be released on time served, and to identify other classes of inmates who might be able to be released by agreement of the parties, as well as expediting petitions for compassionate release.

As the petitioners have argued, and the respondents agree, if the virus becomes widespread within correctional facilities in the Commonwealth, there could be questions of violations of the Eighth and Fourteenth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights; nonetheless, at this time, the petitioners themselves clarified in their reply brief and at oral argument that they are not raising such claims.

Pleased to see growing number of COVID-influenced grants of sentence reductions using § 3582(c)(1)(A)

As highlighted in this post from just two days ago, earlier this week I had only found a handful of court decisions granting sentence reductions using § 3582(c)(1)(A) because of the "extraordinary and compelling" public health crisis created by COVID-19.  But, as the reports of positive COVID-19 cases and even deaths grow in the federal prisons system, so too are the the COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).  Here are some sentence reduction orders I found on Westlaw and via emails from just the past few days:

United States v. Jepsen, No. 3:19-cv-00073(VLB), 2020 WL 1640232 (D. Conn. Apr. 1, 2020) ("Mr. Jepsen is in the unique position of having less than eight weeks left to serve on his sentence, he is immunocompromised and suffers from multiple chronic conditions that are in flux and predispose him to potentially lethal complications if he contracts COVID-19, and the Government consents to his release.  The Court finds that the totality of the circumstances specific to Mr. Jepsen constitute 'extraordinary and compelling'reasons to grant compassionate release.")

United States v. Williams, No. 3:04cr95/MCR (ND Fla. Apr. 1, 2020) (download here) ("Williams' cardiovascular and renal conditions compromise his immune system, which, taken with his advanced age, put him at significant risk for even more severe and life threatening illness should he be exposed to COVID-19 while incarcerated.... Based on these facts, the Court finds that Williams’ deterioration in physical health is sufficiently serious to satisfy the medical criteria for a reduction in sentence."): Download US v. Andre Williams (ND FL 4.1.20)

United States v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) (download here) ("Releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19"): Download Resnick covid order  (Now also at 2020 WL 1651508).

United States v. Brannan, No. 4:15-CR-80-01 (SD Tx. Apr. 2, 2020) (download here) (though not reflected in order, emergency motion was granted on same day of filing for prisoner who had served only 9 months of a 36-month sentence for fraud at FCI Oakdale and had not exhausted BOP remedies): Download 15cr80 Order for Compassionate Release

United States v. Colvin, No. 3:19cr179 (JBA), 2020 WL 1613943 (D. Conn. Apr. 2, 2020) ("She has diabetes, a 'serious ... medical condition,' which substantially increases her risk of severe illness if she contracts COVID-19.... Defendant is 'unable to provide self-care within the environment of' FDC Philadelphia in light of the ongoing and growing COVID-19 pandemic because she is unable to practice effective social distancing and hygiene to minimize her risk of exposure, and if she did develop complications, she would be unable to access her team of doctors at Bridgeport Hospital. In light of the expectation that the COVID-19 pandemic will continue to grow and spread over the next several weeks, the Court concludes that the risks faced by Defendant will be minimized by her immediate release to home, where she will quarantine herself.")

United States v. Foster, No. 1:14-cr-324-02 (MD Pa. Apr. 3, 2020) (download here) ("The circumstances faced by our prison system during this highly contagious, potentially fatal global pandemic are unprecedented. It is no stretch to call this environment 'extraordinary and compelling,' and we well believe that, should we not reduce Defendant’s sentence, Defendant has a high likelihood of contracting COVID-19 from which he would “not expected to recover.” USSG § 1B1.13. No rationale is more compelling or extraordinary."): Download MDPa Foster JonesJ MemOrd GrantRIS e040320

As I have said before, I am fairly confident that this list does not represent all, and I hope it does not even capture most, of the sentence reductions granted by federal district courts in the last few days.  Readers are encouraged to use the comments or to send me emails to supplement this list as new ruling are handed down or become available.

Prior recent related posts:

• Notable recent (pre-COVID) grants of sentence reductions from coast to coast using § 3582(c)(1)(A) ... as FAMM urges thousand more filings in response to coronavirus
• Documenting early federal court COVID jurisprudence in response to various release requests from federal defendants and inmates 
• A few (too few) recent COVID-influenced grants of sentence reductions using § 3582(c)(1)(A)

UPDATE: Here are a few more sentence reductions granted by federal district courts in the last few days that just showed up online or were sent my way:

United States v. Edwards, No. 6:17-cr-00003, 2020 WL 1650406 (D. Conn. Apr. 2, 2020) ("Defendant presented a strong case for compassionate release on account of his incurable brain cancer even before the outbreak of the COVID-19 pandemic. But Defendant's request was further substantiated with a particularized showing that he is susceptible to contracting COVID-19, and that he is at high risk if he contracts it. The Court finds that Defendant has demonstrated an extraordinary and compelling reason for his compassionate release.")

United States v. Zukerman, No. 16 Cr. 194 (AT) (SDNY Apr. 3, 2020) (download here) ("First, the Court holds that Zukerman’s exhaustion of the administrative process can be waived in light of the extraordinary threat posed — in his unique circumstances — by the COVID-19 pandemic.  Second, although the sentence imposed on Zukerman was wholly warranted, the Court holds that the threat posed by COVID-19, in light of his age and medical status, constitutes an extraordinary and compelling reason to modify Zukerman’s sentence.") Download Order granting Zukerman reqest for compassionate release

Tracking ever growing number of prisoner and prison staff deaths due to COVID-19

Exactly a month ago, via this post, I first flagged how the looming threat of the coronavirus could be especially worrisome for incarcerated populations and all the workers at jails and prisons.  Two weeks ago, starting with posts here and here, I began flagging new reports of prisoners and staffers testing positive for COVID-19 in multiple states.  Now, sadly, the predictable next stage of this pubic health tragedy has arrived in the form of multiple reports from multiple location of prisoners and staff dying from COVID-19:

 

Federal: "4 Inmates Dead from Coronavirus as Outbreak Spirals at Louisiana Federal Prison"

Federal: "First inmate death related to coronavirus at eastern Ohio prison"

 

California: "Sheriff's deputy dies from coronavirus, got infected by inmate"

Colorado: "El Paso County Deputy Becomes Colorado’s Youngest Coronavirus Death"

Georgia: "Lee State Prison inmate dies of Covid-19"

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

Massachusetts; "First Massachusetts Inmate Dies From COVID-19"

Michigan: "First Michigan prison employee dies from coronavirus, 24 others test positive"

New Jersey: "Hudson County jail correctional officer, 56, dies from coronavirus, police union says"

New York: "Sing Sing Prison Inmate With Coronavirus Dies As Defense Lawyers Demand Release Of Vulnerable Prisoners"

 

Sadly, I am depressingly confident that this is an incomplete list of staff and inmates already felled by COVID-19 and that in the weeks ahead it will be impossible to do a round-up like this without including just about every jurisdiction in the US.

Prominent federal defendants getting out of prison or delaying entry as a consequence of COVID-19

Here are some notable headlines and basics about some notable federal defendants who have convinced judges, quite sensibly, to allow them to avoid the COVID petri dishes that are federal prisons:

"Tekashi 6ix9ine to be ‘immediately’ released from prison amid coronavirus":

A Manhattan federal court judge has ordered rapper Tekashi 6ix9ine released from federal custody and into home confinement amid the coronavirus outbreak in New York, according to court papers unsealed Thursday.

The order by Judge Paul Engelmayer said the rapper-turned-snitch should be released “immediately” from the private prison in Queens where he is being held in the custody of US Marshals.

The former rapper will serve his first four months in “home incarceration” at an address approved by his probation officer, Engelmayer wrote. He’ll be tracked by GPS. “The defendant must remain at his residence except to seek any necessary medical treatment or to visit his attorney, in each instance with prior notice and approval by the Probation Department,” Engelmayer wrote.

"Former Rep. Chris Collins' prison term delayed due to coronavirus"

A federal judge on Thursday granted former New York Rep. Chris Collins's request to delay the start of his prison sentence for securities fraud by two months after Collins cited concerns about the coronavirus pandemic and its threat to inmates. Collins, a Western New York Republican who had been scheduled to report to prison for a 26-month sentence on April 21, is now set to begin his sentence June 23.

Collins's request came as many inmates and those facing prison sentences have asked to be released from confinement or to delay their sentences out of fear that incarceration creates particularly ripe conditions for the rapid spread of the virus. Those requests have yielded mixed results.

Attorneys for the 69-year-old former congressman, who pleaded guilty in October 2019 to one count of conspiracy to commit securities fraud and one count of making a false statement, had told the court they believe he is in a high-risk category to contract the virus, due to his age and "additional" factors.

Kudos to these judges for making the smart public health decision to keep these folks out of federal prisons for now. I hope a whole lot of less prominent federal defendants get similar treatment in the days and weeks ahead.

Death toll from COVID-19 in federal Oakdale facility now already officially up to four ... UPDATE: And a death now in federal prison in Ohio

A little more than a week ago, the federal Bureau of Prisons was touting that there were no federal prisoners or staff who had yet tested positive for the coronavirus.  Now, as detailed in this Reuters article, headlined "Death Toll From COVID-19 at Oakdale Prison in Louisiana Continues to Climb," we already have four confirmed deaths in just one federal facility:

The death toll from COVID-19 at a U.S. prison in Oakdale, Louisiana, has continued climbing, with a fourth inmate now dead, the Bureau of Prisons said on Thursday, as it grappled with outbreaks at other penal institutions....

Federal Correctional Institution 1, a low-security facility holding about 980 inmates that is one of several facilities comprising the prison in Oakdale in south-central Louisiana, is so far the hardest hit in the nationwide system.  Eighteen inmates, as well as 17 staff members now have COVID-19, said Ronald Morris, the president of the American Federation of Government Employees Local 1007 union.  Dozens more are isolation with symptoms, he added.

As of Wednesday, there were 57 federal inmates with COVID-19 across the nation, the Bureau of Prisons said. In addition to Oakdale, other hard-hit prisons include one in Butner, North Carolina with nine inmates sick. A low-security federal prison in Danbury, Connecticut, also has nine inmates sick with COVID-19.

The bureau on Thursday identified the third inmate who died of COVID-19 at Oakdale as James Wilson, 57, who went into respiratory failure on Monday.  He was taken to a hospital and placed on a ventilator the next day, where he died on Wednesday.

The other two inmate COVID-19 fatalities were younger than Wilson. Nicholas Rodriguez, 43, died on Wednesday.  Patrick Jones, the first reported federal inmate to succumb to the COVID-19, died on Saturday at age 49.

The bureau did not yet have any further details on the fourth inmate.

I cannot help but note that it seems, to date, the COVID crisis is hitting low-security prisons particularly hard and that all the reported death involve persons well below the ages thought to be most at risk for dying from this terrible virus.  This suggests that all sorts of low-risk offenders in the federal prison system are now especially vulnerable to being subject to a functional death sentence. 

I will also note that I am starting to receive calls an emails from former prisoners and from family members of current prisoners reporting deep suspicion with how BOP is handling and reporting on all these challenging COVID realities. As is depressingly the case so often in this arena, I an at once unsurprised and deeply saddened by how our nation treats the historic number of persons it decides to cage.

UPDATE: This local article, headlined "First inmate death related to coronavirus at eastern Ohio prison," reports on another federal inmate death from a distinct federal prison:

Inmate Woodrow Taylor reported to the Health Services Department at the Federal Satellite Low Institution (FSL) Elkton, in Lisbon, Ohio.   Mr. Taylor was evaluated by institutional medical staff and transported to a local hospital for further treatment and evaluation due to the inability to maintain a sufficient oxygen saturation and shortness of breath. 

Mr. Taylor’s condition quickly declined and he was placed on a ventilator. On Thursday, April 2, 2020, Mr. Taylor, who had long-term, pre-existing medical conditions, which the CDC lists as risk factors for developing more severe COVID-19 disease, was pronounced dead by hospital staff. While at the local hospital, Mr. Taylor was tested for COVID19; however, test results were still pending at the time of his death. 

Mr. Taylor was a 53 year-old male serving a 60 month sentence for Conspiracy to Possess with Intent to Distribute 500 grams or more of Cocaine. He had been in custody at FSL Elkton since April 29, 2019. 

Meanwhile, the BOP's COVID-19 Update page now reports 75 federal inmates and 39 federal prison staffers have tested positive for COVID-19.  Here is where these latest BOP numbers come from:

(Inmate) 4/02/2020 - USP Atlanta (5); FMC Butner (10); USP Canaan; FCI Danbury (15); FCI Elkton (2); FCC Forrest City (2); FCC Lompoc (12); MCC New York (4); FCC Oakdale (12); FCI Otisville; FCC Yazoo City (4); RRC Brooklyn, NY (4); RRC Janesville, WI; RRC Phoenix, AZ; FLM Guam

(Staff) 4/02/2020 - Atlanta, GA (3); Brooklyn, NY (4); Butner, NC; Chicago, IL (3); Danbury, CT (4); Leavenworth, KS (no inmate contact); Lompoc, CA; Milan, MI; New York, NY (5); Oakdale, LA (4); Otisville, NY; Ray Brook, NY (2); Talladega, AL (2); Tucson, AZ; Yazoo, MS (3); Central Office, Washington, DC; Grand Prairie, TX; Southeast Regional Office, Atlanta, GA

Federal Defenders write to AG Barr to detail concerns with BOP/DOJ response to COVID-19

I just learned of this new letter from Federal Public & Community Defenders to Attorney General William Barr.  I recommend the 11-page letter in full, and here is how it gets started (with footnotes omitted):

On March 19, 2020, we wrote to you to warn that our jails and prisons were in “grave and imminent danger.” We urged you to take “immediate and decisive action” to address the impending spread of COVID-19 among incarcerated persons. That same day, the Bureau of Prisons (BOP) confirmed the first presumed-positive COVID-19 cases in the federal prison system.

Despite our warnings—and those of Congress, policy groups, and public health and legal expert s— the Department of Justice (DOJ) has failed to respond appropriately to this global pandemic.  , DOJ’s response rests on its view that that “many inmates will be safer in BOP facilities.” DOJ has relied on this false premise to oppose release in a wide range of cases, and as the foundation of policies such as your March 26, 2020, “Memorandum for Director of Bureau Prisons.” (“March 26 Policy”).  That policy fails to take advantage of DOJ’s existing tools to transfer vulnerable and low-risk inmates quickly to home confinement. Instead, it erects a complex set of procedural and logistical hurdles to home confinement.  These hurdles are largely arbitrary, bear little nexus to the current public health crisis, and will disparately harm persons of color. This inadequate response to COVID-19 continues to endanger the individuals who live and work in BOP facilities.

You now have the authority, under the CARES Act, to allow BOP to transfer many more people to the relative safety of home confinement.  But you have not made the finding necessary to allow BOP to do so.  Instead, yesterday BOP announced a new plan (“Phase 5”) that amounts to no more than a 14-day lockdown for all federal prisoners.10 It is certain to fail.  The real problem — as public health experts agree — is that there are simply too many people in the prisons.  The only rational, humane response to this crisis is to greatly reduce the prison population. Locking people down in institutions with inadequate medical care and poor sanitation is not the answer.

This past Saturday, March 28, 2020, marked a grim milestone. Patrick Estell Jones, 49, became the first individual in BOP custody to die of COVID-19.  He was serving a sentence in a low-security facility for a non-violent crack cocaine offense.  His death will surely not be the last. The day after Mr. Jones’s death, the Washington Post reported that 30 more inmates and staff at Oakdale had tested positive for COVID-19.  The numbers of positive-COVID-19 cases in BOP are beginning to exponentially escalate: on March 27, 2020, BOP’s website reported a total of 18 COVID-19 positive inmates and staff; today, it reports 59 confirmed cases.  There are increasing reports of positive diagnoses of individuals detained in federal pretrial custody by the United States Marshals Service.

These diagnoses are “almost certainly an undercount.”  Many in the federal prison population are at grave risk of severe illness or death.  There are approximately 10,000 individuals over the age of 60 presently in federal custody, and one third of all individuals in BOP custody have preexisting conditions.  But there are measures that DOJ can take now to avert catastrophe.  We urge you to immediately reduce the number of people entering federal detention and aggressively transfer or release individuals who are already incarcerated into the community.

No joke: BOP on April 1 reporting ever growing number of COVID cases in ever growing number of federal facilities

Just this past Friday (March 27) as detailed in this post, the BOP's COVID-19 Update page was reporting "only" 14 federal inmates and 13 federal prison staffers had tested positive for COVID-19.  Now BOP has updated its cases as of April 1, and it now reports that 57 federal inmates and 37 federal prison staffers have tested positive.  Here is where these latest BOP numbers come from:

(Inmate) 4/1/2020 - MDC Brooklyn; FCC Oakdale (11); USP Atlanta (4); MCC New York (4); FMC Butner (9); FCI Otisville; FCI Danbury (9); FCC Lompoc (6); FCI Elkton (2); USP Canaan, PA; Forrest City, AK (2); Yazoo City, MS; RRC Phoenix, AZ; RRC Brooklyn, NY (4); RRC Janesville, WI.

(Staff) 4/1/2020 - Grand Prairie, TX; Leavenworth, KS (no inmate contact); Yazoo, MS (3); Atlanta, GA (3); Danbury, CT (4); Butner, NC; Ray Brook, NY (2); New York, NY (5); Chicago, IL (2); Brooklyn, NY (4); Oakdale, LA (4); Lompoc, CA; Otisville, NY; Talladega, AL; Tucson, AZ; Milan, MI; Southeast Regional Office Atlanta, GA; Central Office, Washington, DC

By my count, this list shows 15 different federal prison facilities with inmates who have tested positive and 18 different communities with federal prison staff who have tested positive.  And, of course, there is every reason to fear that these numbers represent the tip of worrisomely big iceberg.

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
• 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 
• Ugly details on COVID realities in federal prison in Louisiana as Bureau of Prisons slowly updates system-wide spread 
• 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
• Federal prisons begin two-week lockdown ... which I hope (but doubt) will help enable mass movement to home confinement

UPDATE: And now, as reported in this NPR piece, BOP is reporting that there have already been three COVID-related deaths at just the FCC Oakdale facility:

A third person held at the federal prison in Oakdale, La., has died of COVID-19, according to Federal Bureau of Prisons officials. The person's name was not released while authorities notified the person's next of kin.

The second patient to die, Nicholas Rodriquez, 43, became ill on March 25 and had a high temperature and a rapid heartbeat, BOP officials said. He was transported to a local hospital that day, and tested positive for COVID-19. Rodriquez was placed on a ventilator on March 27, after his condition deteriorated. He died on April 1.

BOP officials said Rodriquez had long-term, preexisting medical conditions which the Centers for Disease Control and Prevention lists as risk factors for developing more severe COVID-19 disease. Rodriguez was serving a 188-month sentence on drug charges, and had been at the Oakdale facility for about a year....

The Bureau of Prisons told The Lens that it has stopped testing for the virus at the facility because the outbreak is so widespread. Instead, anyone with symptoms is assumed to have COVID-19. A spokesperson for the bureau told the news outlet that the move is intended "to conserve valuable testing resources," and added that the bureau had no plans to release nationwide testing figures.

Check out and cite all (now free) Federal Sentencing Reporter content

The academic publisher of the Federal Sentencing Reporter, University of California Press, has responded to the impact of the coronavirus crisis by making all UC Press online journal content free to everyone through June 2020.  I am grateful to UC Press for this move, and it dawned on me that it might be useful to flag some content from some recent FSR issues that might be useful for judges and lawyers working on challenging sentencing issues during these challenging times:

Some Recent Federal Sentencing Pieces

A Good Sentencing Precedent is Hard to Find by Brian A. Jacobs (Feb 2020)

Sentencing in Chaos: How Statistics Can Harmonize the “Discordant Symphony” by Mark H. Allenbaugh (Feb 2020)

Consensus, Compassion, and Compromise? The First Step Act and Aging Out of Crime by Jalila Jefferson-Bullock (Dec 2019)

Second Looks at Sentences under the First Step Act by Sarah French Russell (Dec 2019)

Reflections on “Rewriting the Sentence” by Hanna Liebman Dershowitz (Oct 2019)

The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End by Norman L. Reimer and Martin Antonio Sabelli (Apr/June 2019)

Looking in the Mirror: The Prosecutor’s Role in Ending Mass Incarceration by Chiraag Bains (Feb 2018)

 

Some Recent Prison Pieces

Beyond First Steps: Reforming the Federal Bureau of Prisons by Shon Hopwood (Dec 2018)

Understanding Federal “Restrictive Housing Unit” Environments by Jack T. Donson and Keramet Reiter (Dec 2018)

How Many Americans are Unnecessarily Incarcerated? by James Austin, Lauren-Brooke Eisen, James Cullen, Jonathan Frank, Inimai Chettiar and Cornell William Brooks (Dec 2016/Feb 2017)

Transforming Prisons, Restoring Lives: Final Recommendations of the Charles Colson Task Force on Federal Corrections (excerpted) (June 2016)

Projecting Recidivism Rates for Federal Drug Offenders Released Early from Prison by Matthew G. Rowland (April 2016)

This is just a small slice of many hundreds of article now freely available at this FSR page thanks to US Press. The top of the FSR pages includes an effective search box so that users can readily find articles and other materials on whatever topics are of particular interest.

A few (too few) recent COVID-influenced grants of sentence reductions using § 3582(c)(1)(A)

As regular readers know, in many prior posts since enactment of the FIRST STEP Act, I have made much of the provision that allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because I have long thought that, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

A few weeks ago before the COVID-19 outbreak became the most urgent of stories, I was starting to notice on Westlaw a growing number of rulings granting sentencing reductions using 3582(c)(1)(A).  I listed some of these pre-COVID positive cases in this March 23 post.  While writing that prior post, I was thinking it might be only a matter of days before a lot more courts granted a lot more sentence reductions using § 3582(c)(1)(A) because of the "extraordinary and compelling" public health crisis created by COVID-19.  Somewhat disappointingly, I have only so far been able to locate a handful of recent COVID-influenced grants of sentence reductions using § 3582(c)(1)(A):

United States v. Campagna, No. 16 Cr. 78-01 (LGS), 2020 WL 1489829 (SDNY Mar. 27, 2020) ("Defendant’s compromised immune system, taken in concert with the COVID-19 public health crisis, constitutes an extraordinary and compelling reason to modify to Defendant’s sentence on the grounds that he is suffering from a serious medical condition that substantially diminishes his ability to provide self-care within the environment of the RCC.")

United States v. Powell, No. No. 1:94-cr-00316 (ESH) (DDC Mar. 28, 2020) (available here) ("Defendant is 55-years-old, suffers from several respiratory problems (including sleep apnea and asthma), and has only 3 months remaining on his 262-month sentence. The government does not oppose the relief sought. In addition, the Court finds that requiring defendant to first seek relief through the Bureau of Prisons’ administrative process would be futile because defendant has an open misdemeanor case in Superior Court which the Bureau of Prisons has advised defense counsel renders defendant ineligible for home confinement.")

United States v. Muniz, No. 4:09-CR-0199-1, 2020 WL 1540325 (SD Tex. Mar. 30, 2020) ("Because Defendant is at high-risk for severe illness from COVID-19 and because inmates in detention facilities are particularly vulnerable to infection, the Court finds that Defendant has demonstrated an extraordinary and compelling reason for compassionate release.")

United States v. Gonzales, No. 2:18-CR-0232-TOR-15, 2020 WL 1536155 (Ed Wash. Mar. 31, 2020) ("Defendant is the most susceptible to the devastating effects of COVID-19. She is in the most susceptible age category (over 60 years of age) and her COPD and emphysema make her particularly vulnerable.... The Court was aware of Defendant’s underlying medical condition and took that into consideration at the time of sentencing. In normal times, Defendant’s condition would be manageable. These are not normal times, however.")

I am fairly confident that this list does not represent all, and I hope it does not even capture most, of the sentence reductions granted by federal district courts in the past week or so.  Readers are encouraged to use the comments or send me emails to supplement this list as new ruling are handed down or become available.

Prior recent related posts:

• Notable recent (pre-COVID) grants of sentence reductions from coast to coast using § 3582(c)(1)(A) ... as FAMM urges thousand more filings in response to coronavirus
• Documenting early federal court COVID jurisprudence in response to various release requests from federal defendants and inmates 

UPDATE: I am pleased to report that I just received from a helpful reader a copy of a new 24-page opinion handed down just today in United States v. Rodriguez, No. 2:03-cr-00271-AB-1 (ED Pa. Apr. 1, 2020) (available for download below). The start of this new opinion highlights why it is a must-read for anyone working on 3582(c)(1)(A) motions these days:

We are in the midst of an unprecedented pandemic. COVID-19 has paralyzed the entire world. The disease has spread exponentially, shutting down schools, jobs, professional sports seasons, and life as we know it. It may kill 200,000 Americans and infect millions more. At this point, there is no approved cure, treatment, or vaccine to prevent it. People with pre- existing medical conditions — like petitioner Jeremy Rodriguez — face a particularly high risk of dying or suffering severe health effects should they contract the disease.

Mr. Rodriguez is an inmate at the federal detention center in Elkton, Ohio.  He is in year seventeen of a twenty-year, mandatory-minimum sentence for drug distribution and unlawful firearm possession, and is one year away from becoming eligible for home confinement. Mr. Rodriguez has diabetes, high blood pressure, and liver abnormalities. He has shown significant rehabilitation in prison, earning his GED and bettering himself with numerous classes. He moves for a reduction of his prison sentence and immediate release under the “compassionate release” statute, 18 U.S.C. § 3582(c)(1)(A).  He argues that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. §3582(c)(1)(A)(i).

For Mr. Rodriguez, nothing could be more extraordinary and compelling than this pandemic. Early research shows that diabetes patients, like Mr. Rodriguez, have mortality rates that are more than twice as high as overall mortality rates.  One recent report revealed: “Among 784 patients with diabetes, half were hospitalized, including 148 (18.8%) in intensive care.  That compares with 2.2% of those with no underlying conditions needing ICU treatment.”

These statistics — which focus on the non-prison population — become even more concerning when considered in the prison context. Prisons are tinderboxes for infectious disease. The question whether the government can protect inmates from COVID-19 is being answered every day, as outbreaks appear in new facilities. Two inmates have already tested positive for COVID-19 in the federal detention center in Elkton — the place of Rodriguez’s incarceration.  After examining the law, holding oral argument, and evaluating all the evidence that has been presented, I reach the inescapable conclusion that Mr. Rodriguez must be granted “compassionate release.”

Download Rodriguez Memorandum

ANOTHER UPDATE: I am pleased to report that I just received from another helpful reader another new opinion handed down just today in United States v. Perez, No. 17 Cr. 513-3 (AT) (SDNY Apr. 1, 2020) (available for download below).  This opinion includes an important discussion of the need to waiver the exhaustion/30-day requirement for a motion for sentence reduction. Here are excerpts:

On March 26, 2020, Perez submitted to the BOP his application for a sentence modification. ECF No. 96 at 4. To date, the BOP has not acted on that request. The Court holds, however, that Perez’s exhaustion of the administrative process can be waived in light of the extraordinary threat posed—in his unique circumstances—by the COVID-19 pandemic. And the Court agrees with the parties that this threat also constitutes an extraordinary and compelling reason to reduce Perez’s sentence to time served. Accordingly, Perez’s motion is GRANTED....

Here, delaying release amounts to denying relief altogether. Perez has less than three weeks remaining on his sentence, and pursuing the administrative process would be a futile endeavor; he is unlikely to receive a final decision from the BOP, and certainly will not see 30 days lapse before his release date. Perez asks that his sentence be modified so that he can be released now, and not on April 17, 2020, because remaining incarcerated for even a few weeks increases the risk that he will contract COVID-19. He has had two surgeries while incarcerated, and continues to suffer severe side effects such as ongoing pain and persistent vision problems. ECF No. 96 at 4. As the Government concedes, Perez faces a “heightened risk of serious illness or death from COVID-19 due to his preexisting medical issues.” Gov’t Letter at 3. Requiring exhaustion, therefore, would be directly contrary to the purpose of identifying and releasing individuals whose circumstances are “extraordinary and compelling.”

Download Perez-Order-Compassionate-Release

Wondering again about pace and number of federal sentencings after another Varsity Blues defendant gets imprisonment term

This AP article, headlined "Mother Sentenced to 7 Months in College Admissions Scam," reports on the high-profile federal sentencing that went forward in Boston by video conference yesterday.  Here are the basics:

A California woman was sentenced Tuesday to seven months in prison for paying bribes to rig her two daughters' college admissions exams and get one of them into Georgetown University as a fake tennis recruit.

In an unusual hearing held via videoconference due to the coronavirus pandemic, the judge rejected Elizabeth Henriquez's bid to avoid prison because of the public health crisis but is allowing her to remain free until at least June 30 in the hopes that the outbreak will have diminished by then. “I have every hope that the coronavirus crisis will abate in a matter of months and that Ms. Henriquez will be able to serve her sentence safely and rebuild her life,” U.S. District Judge Nathaniel Gorton said.

Henriquez and her husband were charged with paying $400,000 in bribes to get their oldest daughter into Georgetown as a bogus tennis recruit in 2016. They also paid bribes to have someone cheat on their daughters' college entrance exams, authorities said. In one instance, the purported proctor sat next to her daughter while she took a test and fed her the answers and then “gloated” with Henriquez and the teen about how they had cheated and gotten away with it, authorities said....

Her husband, Manuel Henriquez, is the founder and former CEO of Hercules Capital, a finance firm in Palo Alto, California. He is scheduled to be sentenced April 8.

Her lawyers had urged the judge to give her home confinement, citing a memo written by Attorney General William Barr who said some nonviolent inmates who are particularly at risk to the virus may be safer at home than behind bars....

Henriquez was sentenced via videoconference to keep people from gathering at the federal courthouse in Boston amid the pandemic. The judge talked to Henriquez and lawyers over video chat while news media and other members of the public listened on the phone. The Boston court and halls of justice across the country have delayed jury trials and moved to video and telephone hearings to keep the criminal justice system moving while people are hunkered in their homes.

Prosecutors had argued in court documents that she deserved more than two years behind bars. Gorton ordered Henriquez to begin serving her prison sentence on June 30 but said he would consider a request to push that back further if necessary.

As I mentioned here a few weeks ago, under normal circumstances 300 federal sentences are imposed every work day, 1500 federal sentences are imposed every work week, 6200 federal sentences are imposed every month in US courts nationwide.  Clearly, some number of federal sentencings are going forward, but I am so very eager to know how many.  I am hoping that before too long, the US Sentencing Commission or the Justice Department will try to provide some real-time data on the administration of federal criminal justice amidst the COVID crisis.

A few prior recent related posts:

• Are federal prosecutors getting any guidance from Main Justice about federal sentencing policy and practice amidst coronoavirus pandemic? 
• "'Complete chaos': How the coronavirus pandemic is upending the criminal justice system"
• Federal Defenders urge Justice Department to take specific immediate steps in response to coronavirus outbreak
• 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

Federal prisons begin two-week lockdown ... which I hope (but doubt) will help enable mass movement to home confinement

As reported in this Politico piece, "Federal prisons are ordering inmates confined to their cells for the next two weeks in order to fight spread of the coronavirus in the cramped confines of U.S. Government-run penal institutions." Here is more (with links from the original):

The lockdown will begin Thursday and could be extended, the Bureau of Prisons said in a statement late Tuesday.   Some exceptions will be allowed in an effort to maintain normal programs and sanitation, the statement said.  “Limited group gathering will be afforded to the extent practical to facilitate commissary, laundry, showers, telephone, and [computer] access,” the Bureau’s announcement said. “During this time, to the extent practicable, inmates should still have access to programs and services that are offered under normal operating procedures, such as mental health treatment and education.”... 

Criminal justice reform backers, including some lawmakers, have been pressing for immediate release of older inmates and those at particular risk due to pre-existing health conditions.... Attorney General William Barr has ordered a review of the prison population for inmates who could be sent to home confinement without jeopardizing public safety.

While Barr proposed increasing the number of inmates on home confinement, he said last week that many inmates are likely safer in prison than outside.  Any releases under the new policy seem likely to be at least a week away because Barr has said he wants such prisoners to be quarantined before being sent home.  "We also have to provide that anyone who is released to home confinement is quarantined before they go out, for 14 days to ensure that we're not putting people out in the community who have it,” he said....

One of the massive virus-response bills passed by Congress last week gives the Justice Department more authority to release federal prisoners early if Barr declares that an emergency is interfering with prison operation.  The Justice Department has not responded to questions about whether Barr has yet issued such a declaration.

One criminal justice reform advocate expressed disappointment in the lockdown, saying it is likely to aggravate problems related to the virus, not ameliorate them.  “How incredibly short-sighted, contrary to the advice of any experts, and inhumane,” Chris Geidner of the Justice Collaborative wrote on Twitter. “Keeping people in their cells for 14 days straight is NOT the same thing those of us elsewhere are going through.  Most of us have a supply of soap and hygienic bathrooms in separate rooms from where we eat, for starters.”

In recent days, judges have ordered the release of some immigration detainees at greatest risk for serious illness from the virus. There have also been releases of pretrial detainees and convicts at the state and local level, but few from federal prisons.

On Tuesday, U.S. District Court Judge Jesse Furman in Manhattan turned down such a bid from a former medical doctor he sentenced to three years in prison roughly three weeks ago.  Lawyers for Nkanga Nkanga, 67, who pleaded guilty to issuing unwarranted opioid prescriptions, said he’s in grave danger at a Brooklyn prison due to his age and declining health, including asthma and complications from a stroke a decade ago.

In an impassioned opinion, Furman wrote that if he’d realized the gravity of the pandemic several weeks ago, he would have postponed sentencing Nkanga or ordered some relief to keep him out of prison until the danger abates. But the judge concluded he lacks any authority to release a prisoner already serving his sentence.  “Dr. Nkanga’s case is a vivid illustration of why the dangers posed by Covid-19 to the imprisoned population cry out for action by Congress and the Executive Branch,” wrote Furman, an appointee of President Barack Obama. “Although the rational and right result is for Dr. Nkanga to be temporarily released from custody until circumstances improve, the Court is powerless at this point to bring about that result.”

Nkanga’s lawyers returned to the court early Wednesday with an argument that Furman has the power to release their client in response to a habeas corpus petition challenging his conditions of confinement.  Furman has yet to respond to that last-ditch plea, but in his earlier ruling he said officials outside the judiciary are the only ones who have the power and agility to safeguard prisoners at the most serious risk from the virus.  “Only the political branches can do what this moment requires,” the judge wrote. “The question is whether they will do so — and, if they do, whether their actions will be too late for Dr. Nkanga and other inmates like him.”

Chris Geidner is entirely right that this system-wide lockdown in uniquely burdensome for federal prisoners.  But, hoping to (foolishly?) imagine that BOP lemons could be turned into lemonade, I want to now believe that the urgency of the COVID-19 crisis is finally dawning on Justice Department officials and that BOP will be using the two-week lockdown period to identify as many prisoners as possible who can be moved out of prison and into home confinement ASAP.  I am not really expecting to see a mass movement of federal prisoners to home confinement come April 15, but I think this lockdown at least provides a target date for advocates to demand that BOP move forward with the kinds of mass decarceration efforts that all public health experts are saying is now essential. 

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

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.