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April 11, 2020

Rounding up recent COVID criminal justice headlines and worthwhile reads

Pandemics do not take a break for the weekend, and I will try to cover a lot of recent COVID criminal justice news through headlines and links.  In no particular order:

In addition to lots of notable news, there is also a lot of notable commentary that I can will try to review in quick form with titles and links:

April 11, 2020 in Impact of the coronavirus on criminal justice | Permalink | Comments (0)

"Virus-wracked federal prisons again expand release criteria: New policy allows home confinement for inmates who've yet to serve half their sentence."

The title of this post is the headline of this new Politco piece, and here are the details:

The federal prison system has quietly broadened the ranks of inmates eligible to be transferred into home confinement as officials seek to limit the continuing spread of the coronavirus behind bars. The latest move by the Bureau of Prisons allows inmates who have yet to complete half of their sentences to be considered for the early release program.  The shift was disclosed Friday in response to a lawsuit filed on behalf of inmates at an Oakdale, Louisiana, prison complex that has seen the deadliest outbreak of COVID-19 among federal facilities.

“Acting upon additional guidance from BOP Regional Office Staff, on the afternoon of April 9th, the reviewing staff have also expanded the criteria, removing the eighth factor, consideration of whether inmates in low or minimum facilities have served 50% of their sentence,” prison official Juan Segovia wrote in a court filing [available here].  Segovia said the change resulted in officials reviewing another 90 prisoners for possible transfer home, of which 15 were found “potentially eligible” and prepared for a 14-day pre-release quarantine.

Some inmates continue to be disqualified because they were convicted of violent offenses or child pornography-related crimes or because computerized “risk assessment” tools did not rate them among the least likely to re-offend, the prison official said. However, Segovia suggested those criteria could be relaxed further in the coming days. “Staff continue to receive guidance on this matter and the number of inmates being given priority consideration is expanding daily,” he wrote. “Once we complete the [current] review … I have been informed that the institution may consider expanding the criteria for review.”

Six inmates have died so far at the Oakdale prison complex, with 40 prisoners and 17 staff confirmed infected with the virus, according to official statistics released Friday. Nationwide, 9 federal prisoners have died, 318 inmates and 163 staff have been confirmed as infected with the virus. Testing of prisoners has been limited, so the true infection rate is believed to be higher....

A Bureau of Prisons spokesman did not immediately respond to a request for comment Saturday on the recent policy changes, including who decided to waive the earlier requirement a prisoner must have served at least half of their sentence.  Expanding that home confinement eligibility could aid many white-collar convicts given the nature of their crimes, but prison officials still appear to be prioritizing those at facilities suffering serious outbreaks of the virus as well as prisoners who are at particular risk due to health conditions or age.

Announcing the new criteria could also complicate the work of federal prosecutors who are being inundated with motions requesting resentencing of defendants to home confinement due to the dangers posted by the virus.  “Reducing the sentence of the defendant to less than half of what he was sentenced to serve, particularly given where he is housed and the speculative basis of his motion, is unwarranted,” New York-based prosecutors wrote Friday as they resisted such a bid by a prisoner serving at a Pennsylvania federal prison that has yet to see a confirmed case of the virus.

The prison system does not consider transfers to home confinement to be “releases.”  Such convicts are normally put on GPS monitoring, but Barr has waived that requirement for now due to the volume of transfers and logistics difficulties related to the pandemic.

A few of many prior related posts:

April 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

April 10, 2020

Latest BOP numbers reveal continued increases COVID-19 cases among federal facilities, inmates and staff (and more releases to home confinement)

A little over two weeks ago, on March 26 as noted in this post, US Attorney General William Barr stated to the press that a "total of six inmates and four prison staffers have tested positive for COVID-19."   Last week, on April 3 as detailed in this post, BOP updated its numbers to then report that 91 federal inmates and 50 federal prison staffers had tested positive.  Today (April 10), here is what BOP is reporting:

As of 04/10/2020, there are 318 federal inmates and 163 BOP staff who have confirmed positive test results for COVID-19 nationwide.  Currently, 15 inmates and 8 staff have recovered.  There have been 9 federal inmate deaths and 0 BOP staff member deaths attributed to COVID-19 disease.

Notably, the BOP is reporting that there are now twelve different federal facilities with as many or more positive COVID cases than AG Barr reported that the entire federal system had just a little over two weeks ago.  In addition, the BOP page is reporting that there are now a total of "39 BOP facilities and 8 RRCs affected nationwide."

For a little bit of good news, the number of persons being released from federal facilities into home confinement is also rising.  Here is the latest BOP report on that front: "Since the release of the Attorney General's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 886 inmates on home confinement."  BOP has also recently added to this page this link: "COVID-19 Home Confinement Information Frequently Asked Questions."

Earlier this morning, I noted in this post a Politico piece and a Shon Hopwood commentary about some of BOP's on-going struggles.  Now I see a few more press pieces in this vein:

From ABC News, "Bureau of Prisons coronavirus response under fire: 'Reactive,' not 'proactive,' inmates, staff say: BOP has more COVID-19 cases than three states."

From The Intercept, "Internal Prison Guard Email Contradicts Government's Claims to Judges About Containing Coronavirus at Federal Detention Center"

From the Cleveland Scene, "The Latest out of Elkton Federal Prison, Where Horror Show Continues Apace"

From The Marshall Project, "Federal Prison Factories Kept Running as Coronavirus Spread"

April 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Pennsylvania and New Jersey Govs enter executive orders to enable temporary prison releases during COVID pandemic

Interestingly (and coincidentally?), Governors of two neighboring east coast states decided to issue new orders today to allow some prisoners to be temporarily released from imprisonment during the coronavirus crisis.  This press piece, headlined "Thousands of inmates in Pa. and N.J. now eligible for temporary release as coronavirus spreads," reports on the basics:

Thousands of inmates in Pennsylvania and New Jersey are eligible to be temporarily released from prison in a measure to decrease the incarcerated population as the coronavirus spreads and outbreaks in jails sprout across the country.  On Friday, governors in both states invoked executive powers to establish processes that would offer some inmates a temporary reprieve of their sentences by placing them under house arrest or parole.

In Pennsylvania, Gov. Tom Wolf announced the program would offer as many as 1,800 state prison inmates a reprieve, and that eligible defendants include those 65 or older, anyone with autoimmune disorders, pregnant women, and inmates with chronic health conditions such as heart disease, diabetes, cancer or other ailments that make them more vulnerable to serious coronavirus complications.

The inmates, who could be released as soon as Tuesday, would be monitored and supervised by parole agents while under house arrest and would have to return to prison to complete their sentences once the state’s emergency order ends.  As of Friday morning, 11 inmates and at least 6 corrections officers at one state prison — SCI Phoenix in Montgomery County — had tested positive for the virus, according to the Department of Corrections.  “We can reduce our non-violent prison population and leave fewer inmates at risk for contracting COVID-19 while maintaining public safety with this program,” Wolf said in a statement.

In New Jersey, N.J. Gov Phil Murphy signed an executive order establishing that state’s process for putting some inmates in temporary home confinement or to be granted parole. Eligible inmates include people whose age or health status puts them at an increased risk, and who have not been convicted of serious crimes such as murder or sexual assault. Also eligible for release are individuals denied parole in the past year or whose sentences expire within the next three months.

Department of Corrections Commissioner Marcus Hicks said 129 state corrections staff members had been “impacted by the virus.”   Twenty inmates have tested positive, he said, and one has died. More than 1,000 asymptomatic employees and 400 asymptomatic inmates are in medical quarantine due to possible exposure to the coronavirus.  “You can imagine when you’re running a correctional facility, in a correctional setting, that there are unique challenges in trying to implement social distancing,” Hicks said.

Public health advocates have called on governors for weeks to reduce the jail population as concern has risen surrounding detention centers — with their close quarters, limited hygiene, and inability to follow social distancing guidelines — as possible vectors for a coronavirus outbreak that could spread from inmates and guards to the surrounding community.  In Pennsylvania, Wolf called for the legislature to establish a framework for releasing some inmates, but it became snarled in Harrisburg this week. Advocates called Wolf’s order Friday a positive first step after weeks of delay.

Pennsylvania Governor Tom Wolf's executive order, which runs three pages, is available at this link.  As of this writing, I cannot find NJ Governor Phil Murphy's executive order, but I did find this recent official(?) tweet thread describing its term.  

April 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Tracking COVID cases in juvenile facilities in incarceration nation

I was pleased to hear this morning from Josh Rovner at The Sentencing Project who reported that TSP is working on a webpage to track the incidence of the coronavirus in juvenile facilities.  As that site is being constructed, Josh has be posting information daily on the ever-growing number of COVID cases on his twitter page:

Tracking Youth (as of April 9: "At minimum, 46 YOUTHS in juvenile facilities have tested positive for #COVID19, a three-person increase from yesterday. There are cases in 11 states.")

Tracking Staff (as of April 9: "There have been 65 known #COVID19 cases among staff members working at #juvenilejustice facilities, ten more than yesterday (eight of these ten are in New York; the others are in Illinois and Nebraska). There are cases among facility staff in 23 states.)

AFTERNOON UPDATE New data as of April 10:



April 10, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

"U.S. prisons' virus-related release policies prompt confusion: ‘It’s crazy how they’re doing this,’ one inmate’s spouse said"

The title of this post is the headline of this new Politico piece spotlighting a story that is likely already familiar to many readers of this blog. Here are excerpts:

Federal prison officials appear confused about how to implement directives to step up early releases of inmates to combat the coronavirus epidemic, according to family members of convicts. One particular source of uncertainty and even danger, the families say, are policies about whether inmates being considered for release must be held in quarantine for 14 days before being sent home — a safeguard aimed at making sure infection isn’t transmitted into the community.

In some instances, inmates being quarantined on that basis are housed near prisoners being isolated because they’re suspected of having the virus, family members said. Wives of inmates at a medium-security federal prison in Cumberland, Maryland told POLITICO the facility is using its special housing unit or “SHU” to hold both categories of prisoners.

“They’re quarantining these healthy inmates with sick inmates that are already down there,” said Angela Sanks, whose husband, Collie, was due out in 2022 and was taken to the SHU for potential release several days ago. “It’s crazy how they’re doing this,” she said. “It’s like they’re just waiting to get this….They’re at risk of being forgotten about. They didn’t get a death sentence.”...

The spouse of an inmate at one of the hardest-hit federal prisons, in Elkton, Ohio, described a puzzling transfer of prisoners into pre-release quarantine and then out again. Tammy Hartmann said her husband Pete, who’s due out of prison in August of next year, was one of 56 inmates whose names were called on Saturday to report for quarantine so they could be sent on home confinement. “They were all told: you’re going home,” she said. But on Wednesday, 54 of the men were sent back to their cells. “They told them, sorry, you’re not going anywhere, because they’d approved only two of them to leave.”

“I actually thought he was coming home,” Hartmann said of her 59-year-old husband who — like other prisoners mentioned in this story — is serving time on drug charges. “I canceled all his subscriptions to magazines because I thought he’d be home in 14 days… I’m trying to hold it together.”

So, far 283 inmate infections and eight deaths have been reported in federal prisons nationwide. The Elkton prison has 10 confirmed infections and three inmate deaths from the virus, according to official statistics. Guards' union officials and inmate advocates say the numbers of infections are actually higher....

A Bureau of Prisons spokesman did not address specifics about steps to segregate symptomatic or exposed prisoners from those set for release, but said facilities are following standards set by the Centers for Disease Control. “All of the BOP's institutions have been directed to designate available space for isolation and quarantine for inmates who have been exposed to or have symptoms of COVID-19. The BOP follows all CDC guidelines with regard to isolation and quarantining,” spokesman Justin Long said.

Despite the Trump administration’s usual tough-on-crime stance, Attorney General William Barr has issued a series of directives in recent weeks encouraging releases to home confinement as a means of reducing crowding at federal prisons and protecting inmates most at-risk for serious illness or death from the virus. The first memo Barr issued on the subject two weeks ago stated that all prisoners being considered for release had to be placed in a “mandatory 14-day quarantine before” being sent to home confinement.

A new memo from Barr last week relaxed that rule, giving prison officials permission to release inmates before the 14-day period is up “in appropriate cases subject to your case-by-case discretion.” That directive called for such inmates to observe a similar quarantine in their residence. Last week’s memo also used a power granted Barr in the last stimulus bill to release a broader swath of prisoners by declaring “emergency conditions” related to the virus. That order may also have slowed releases from less-impacted prisons by prioritizing the ones with the most serious outbreaks.

As of Thursday, the Bureau of Prisons has moved 789 inmates to home confinement since Barr first publicly called to increase those moves on March 26, according to statistics from the agency. That number has risen by more than 200 this week, the figures show.

Some prisoners are also being sent home under a separate “compassionate release” authority typically used for cases of severe or terminal illness. There have been 180 such releases in the past year and a half or so, but the BOP could not immediately say how many have taken place since the coronavirus pandemic broke out.

Federal prosecutors are also being inundated with lawsuits, habeas corpus petitions and re-sentencing requests aimed at freeing prisoners based on dangers caused by the virus. Prosecutors are vigorously fighting efforts to free prisoners en masse, but are sometimes acquiescing in releases when motions are brought to individual judges who handled the relevant criminal case....

The reported numbers of infected federal prisoners could be lagging the reality due to very limited testing. No overall number of tests has been reported but a judge in New York has ordered officials there to report twice a week on tests of inmates at the federal detention centers in Manhattan and Brooklyn. As of Thursday, the Manhattan federal jail recorded six inmates tested — including five positive tests — out of about 700, with 12 staff infected. The Brooklyn facility said 11 prisoners were tested, with three found infected, out of about 1700, with nine staff testing positive.

Speaking of which he knows well, Shon Hopwood had this timely commentary at The Appeal fittingly titled "Don’t Look to the DOJ to Keep Federal Prisons and Their Surrounding Communities Safe During the COVID-19 Pandemic."  Here are excerpts:

Attorney General William Barr issued a memorandum instructing the Bureau of Prisons to expand its use of home confinement and release some of its most vulnerable prisoners, while acknowledging that the Bureau is facing “emergency conditions” that are “materially affecting” its operations. 

But don’t look to the DOJ to release enough people to make prisons and their surrounding communities safe.  The DOJ’s new policy only applies to people in the lowest security levels. It is uncertain whether the DOJ will release people convicted of violent offenses, even if they are high risk and have only a few months or days remaining on their sentences.  And without providing some sort of categorial relief, the DOJ’s process for releasing people to home confinement will not come fast enough.  If the DOJ releases only a few thousand people, its prisons will continue to serve as COVID-19 petri dishes....

As a former federal prisoner who now works in the public eye as a law professor, I hear the worst of what some think about people in prison.  Some will say that if you did the crime, you should serve the time — even if, as a result of COVID-19, it becomes a death sentence. That view of human worth is inconsistent with the Eighth Amendment’s prohibition on cruel and unusual punishment and with the important value that even those who have committed crimes, like me, deserve a second chance.  If someone is vulnerable or has less than a year to serve on their prison sentence (regardless of the crime they committed), their sentence should not be retroactively converted into a death sentence simply because the DOJ is unable to keep its prisons safe. 

A few of many prior related posts:

April 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

April 9, 2020

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

As highlighted via posts here and here, there is a growing number of federal 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 as the number of requests for sentence reductions using § 3582(c)(1)(A) are growing, so to are rejections or deferrals of these motions (many of which are now based on the procedural issue flagged in this post).  Because I cannot provide a comprehensive accounting of all these rulings, I will here just report a few more of the sentence reduction orders I found on Westlaw from this week so far:

United States v. McCarthy, No. 3:17-CR-0230 (JCH), 2020 WL 1698732 (D. Conn. Apr. 8, 2020) ("Thus, in light of the urgency of McCarthy’s request, the likelihood that he cannot exhaust his administrative appeals during his remaining 26 days of imprisonment, and the potential for serious health consequences, the court waives the exhaustion requirement of section 3582(c)(1)(A).... The defendant’s age and medical condition, taken in concert taken in concert with the COVID-19 public health crisis, constitute an extraordinary and compelling reason to reduce McCarthy’s sentence.")

United States v. Hansen, No. 07-CR-00520 (KAM), 2020 WL 1703672 (EDNY Apr. 8, 2020) ("Mr. Hansen’s medical risk from the COVID-19 pandemic, taken alone, arguably constitutes 'extraordinary and compelling' circumstances justifying his release.  As discussed above, however, Mr. Hansen’s circumstances are 'extraordinary and compelling' without regard to risks associated with the COVID-19 pandemic.... Requiring Mr. Hansen to serve out the rest of his sentence, which, in any event, may amount to no more than seven additional months, would be 'greater than necessary to serve the purposes' of 18 U.S.C. § 3553(a)(2).")


UPDATE on morning of 4/10Westlaw now has one additional sentence reduction grant, and I also received another one via email last night:

United States v. Trent, No. 16-cr-00178-CRB-1, 2020 WL 1812242 (ND Cal. Apr. 9, 2020) ("Trent suffers from a number of serious physical or medical conditions including HIV/AIDS, diabetes, and obesity, from which he is not expected to recover. The Court finds that in the context of the COVID-19 pandemic, these medical conditions, which render Trent uniquely vulnerable to serious illness if he contracts COVID-19, substantially diminish his ability “to provide self-care within the environment of a correctional facility.”)

United States v. Plunk, No. 3:94-cr-36-TMB (D Alaska Apr. 9, 2020) (available here) ("In this case, Defendant qualifies for compassionate release due to his medical conditions and age, particularly in light of the ongoing coronavirus (COVID-19) pandemic, and time spent in custody, as well as his remarkable history of rehabilitation while in custody and several prior recommendations by his wardens, the U.S. Probation office, and Judge Sedwick to reduce or commute his sentence."): Download Plunk Compassionate Relief order


In this prior post, I also flagged United States v. Decator, No. CCB-95-0202, 2020 WL 1676219 (D. Md. April 6, 2020) and United States v. Millan, No. 91-CR-685 (LAP), 2020 WL 1674058 (SDNY April 6, 2020), neither of which is focus on COVID issues, but both of which are rulings in favor of the defendant and now appear in Westlaw.  Also, a helpful reader sent me this "string cite" of just some of the pro-defendant rulings last week:

See United States v. Williams, No. 04-cr-95, Dkt. No. 91 (N.D. Fla. April 1, 2020) (granting § 3582(c)(1)(A)(i) motion “in light of [the defendant’s] serious deterioration in physical health and the increasing health risks that the current global pandemic of coronavirus (COVID-19) poses to incarcerated persons, particularly those with underlying health conditions.”); United States v. Gonzales, No. 18-cr-0232, 2020 WL 1536155 (E.D. 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.”); United States v. Marin, No. 15-cr-252, Dkt. No. 1326 (E.D.N.Y. Mar. 30, 2020) (granting § 3582(c)(1)(A)(i) motion based on defendant’s “advanced age, significantly deteriorating health, elevated risk of dire health consequences due to the current COVID-19 outbreak, status as a non-violent offender, and service of 80% of his original sentence.”); United States v. Muniz, No. 09-cr-199, Dkt. No. 578 (S.D. Tex. Mar. 30, 2020) (releasing defendant serving 188-month sentence for drug conspiracy in light of vulnerability to COVID-19: “[W]hile the Court is aware of the measures taken by the Federal Bureau of Prisons, news reports of the virus’s spread in detention centers within the United States and beyond our borders in China and Iran demonstrate that individuals housed within our prison systems nonetheless remain particularly vulnerable to infection.”); United States v. Powell, No. 94-cr-00316 (D.D.C. Mar. 28, 2020) (granting § 3582(c)(1)(A)(i) motion in light of COVID-19 pandemic for a “[d]efendant [who] 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.”); United States v. Campagna, No. 16-cr-78-01, 2020 WL 1489829 (S.D.N.Y. 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 . . . .”).

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:

April 9, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Federal prison population, due seemingly to COVID responses, hits another modern low (which is still very high)

2020-04-09Every Thursday morning, one can see at this webpage an official refreshed count of the total number of federal inmates as calculated by the Federal Bureau of Prisons. That page also has a chart and data on the total number of federal inmates for each fiscal year going back to 1980.  A quick look at these data show that in FY 2013 the federal prison population hit a modern high of 219,298.

But this morning, we are down to a federal prison population of "only" 173,686 inmates.  I put "only" in quotes because back in 1980 we had only 24,640 federal prisoners.  But the next 30+ years, through the heart of the "tough-and-tougher," the federal prison population grew by 900% as both Democratic and Republican administrations invested more and more money on more and more federal prosecutions while generally asking for longer and longer sentences for those who were federally convicted.

But, after 2013, a range of political, social and practical realities helped create a new and steady trend of reduced federal incarceration levels.  Notably (though not often noted), data here from the US Sentencing Commission shows there were roughly 20,000 fewer offenders being sentenced in the federal system between 2011 (when 86,201 persons were sentenced in federal courts) and 2017 (when "only" 66,873 persons were sentenced).  In addition, retroactively applied reductions in crack sentences and then in all drug sentences contributed to further federal decarceration. 

But, starting in 2018, the number of offenders being sentenced in the federal system started to tick back up; in 2019, according to the USSC, we were all the way back up to 76,538 sentenced federal offenders.  Yet, working the other way, the new good-time credit flowing from the FIRST STEP Act and other reforms in that Act helped to thwart a complete reversal in the downward trends of the total number of persons in federal prison.  I commented in this post back in July 2019 that, thanks in part to Obama era developments and the FIRST STEP Act, the federal prison population had dropped under 180,000 prisoners for the first time since way back in FY 2003.  At that moment, I was truly unsure how various cross-cutting trends might impact the federal prison population in the months and years to come.  I made these concluding points in that prior post:

I have been following these numbers closely for a number of years, and I have been especially focused on week-to-week changes during the years of the Trump Administration because I feared that an uptick in federal prosecutions and various new sentencing directives begun under then-Attorney General Jeff Sessions might reverse the trend of prison population reduction that started during the second part of the Obama Administration.  But it seems that a lot of forces worked in various ways to kept the federal prison population at just over 180,000 inmates for much of the last three years.  And now, thanks to the FIRST STEP Act's "good time fix" finally kicking in, we are this week significantly below that 180,000 inmate threshold.

I would love to be able to predict that the FIRST STEP Act will ensure that the federal prison population keeps going down, but I am not sure that would be a sound prediction.  It is possible that the continued robust implementation of various components of the FIRST STEP Act will keep the downward trends moving.  But continued increases in the number of cases prosecutors by the Justice Department could get us back to an era of federal prison population growth (though that growth would likely be relatively modest).

Of course, we are in a whole new world of federal crime and punishment now.  We are in a COVID world.  It is waaaaaaay too early to make any long-term predictions.  But I wanted to flag today that we are at a new modern low with the federal prison population at "only" 173,686 inmates.  Just two weeks ago, before judges were starting to reduces sentences in response to compassionate release motions and before Attorney General Barr urged the Bureau of Prisons to move more offenders into home confinement, this population count was over 175,000.  Given this new COVID trend, I am inclined to predict we will see the federal population below 170,000 before the end of this month (though we should all know now how uncertain all COVID-related predictions must be).

Long term, as my prior comments are meant to highlight, what will likely matter most for the federal prison population is how many new offenders are getting sentenced and for how long.  Will federal prosecutors be bringing thousands more federal fraud and firearm prosecutions in the months ahead?  Will they be bringing thousands fewer federal drug and immigration prosecutions?  Will federal sentencing judges be inclined to be more lenient (or less lenient) in a COVID world?  As we see these prosecution and sentencing trends develop, we will know if the modern trend of federal decarceration will keep unfolding.

April 9, 2020 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Highlighting Cook County jail as biggest US hot spot as coronavirus continues to impact incarceration nation

The New York Times has this new piece on the impact of COVID on incarcerated populations, and the full headline covers the essentials: "Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars: At least 1,324 confirmed coronavirus cases are tied to prisons and jails across the United States, according to data tracked by The Times, including at least 32 deaths."  Here are excerpts:

It started small. On March 23, two inmates in the sprawling Cook County jail, one of the nation’s largest, were placed in isolation cells after testing positive for the coronavirus. In a little over two weeks, the virus exploded behind bars, infecting more than 350 people.

The jail in Chicago is now the nation’s largest-known source of coronavirus infections, according to data compiled by The New York Times, with more confirmed cases than the U.S.S. Theodore Roosevelt, a nursing home in Kirkland, Wash., or the cluster centered on New Rochelle, N.Y.

The Cook County Sheriff’s Office, which operates the jail, said Wednesday that 238 inmates and 115 staff members had tested positive for the virus. But those figures most likely downplay the actual problem, the jail acknowledged, because the vast majority of the jail’s 4,500 inmates have not been tested. “This has been a difficult time for everyone,” said Thomas J. Dart, the county sheriff, who has decided to stay away from his wife and children because he fears spreading the virus to them....

The ballooning outbreak at the jail, southwest of downtown Chicago, appears to confirm the fears of many health officials, who warned that America’s overcrowded and unsanitary prisons and jails would likely be a significant source of the virus’s spread.

The New York Times has identified at least 1,324 confirmed coronavirus cases tied to U.S. prisons and jails, including at least 32 deaths. Those numbers are most likely a vast undercount, because some state and local agencies have not released information, and others, including the federal Bureau of Prisons, which has had 337 positive cases and eight deaths, are not testing everyone who falls ill.

Concerns about the virus’s spread have prompted authorities across the country to release thousands of inmates, many of whom were awaiting trial or serving time for nonviolent crimes. But those measures have not prevented a dizzying pace of infection among a population in which social distancing is virtually impossible and access to soap and water is not guaranteed.

The rapid transmission has left prisons across the nation in a heightened state of fear, tension and mistrust. Some facilities have placed inmates with fevers in solitary confinement, while some federal prisons and certain state facilities have kept prisoners locked inside their cells for more than 22 hours a day to restrict movement and possible transmission. Still others are shipping prisoners who test positive to hastily established microprisons.

But the greatest concern might be in facilities where little has been done to stop the virus’s spread. “I’m worried sick. If I get this, I’m dead,” said Thomas Balsiger, 67, an inmate at the La Tuna federal prison in Texas who has a history of coronary heart disease. He said there are too few protections in place for inmates, and that guards do not always wear masks. “This is outright reckless endangerment,” he said.

The Times has identified at least 41 clusters of two or more coronavirus cases centered on prisons or jails. In addition to Cook County, other large clusters include the Parnall Correctional Facility in Jackson, Mich., which is tied to more than 100 cases; the Stateville Correctional Center in Crest Hill, Ill., linked to more than 90 cases; and the Federal Medical Center in Butner, N.C., where at least 58 inmates and staff have tested positive.

In New York City, which has borne the brunt of the U.S. outbreak, more than half of the jail population had been quarantined by Wednesday as the virus continued to spread through the jails on Rikers Island and in neighboring boroughs. The Department of Correction said 287 inmates, 441 correction staff and 75 health care workers had tested positive, and nearly 1,600 inmates had been released to try to reduce the toll. The disease has killed seven correction employees and one detainee in New York. More than 10 percent of correction officers have had to quarantine themselves....

Advocates and family members have filed a federal lawsuit seeking the early release of older Cook County inmates and those who have chronic medical conditions like respiratory illnesses and diabetes, which may make them particularly vulnerable to the virus. Similar suits are being filed across the country. On Monday, the A.C.L.U. sought the release of inmates at the Oakdale federal prison in Louisiana who are at a higher risk of serious illness or death from the virus. The Oregon Justice Resource Center filed a federal class-action lawsuit accusing the state’s Department of Corrections of ignoring the public health threat. And on Wednesday, the A.C.L.U. announced that it was seeking an emergency order to force a sheriff in Colorado to comply with social distancing for all high-risk people in the Weld County jail.

I am glad the NY Times has done this partial COVID accounting, but it would really be amazing if someone could set up an updating coronavirus counter that breaks down cases by state (or even by facility) just for incarcerated populations.  I have been amazed by some of the real-time national, state and local data being generated to track COVID's spread, and the BOP has started doing a good job tracking official federal numbers.  But we could all benefit greatly, especially those judges, prosecutors and defense attorneys now involved in litigation surrounding these issues, from detailed and ever-updated data on just how COVID continues to spread in incarceration nation (and how much testing is being done).

Notably, at the Marshall Project here, there is an effort to "cover outbreaks of the coronavirus throughout the country’s smaller and non-urban jails, with incarcerated populations under 500. If you know about a jail which has seen a large number of positive tests, deaths, or simply detainees and employees showing symptoms, please share the tip with us through this form."

And here are few more recent stories from national media on this familiar (and predicted) story:

From CNN, "Coronavirus cases in California prisons multiplied in days and inmates fear further spread"

From NPR, "Inmates In Washington State Protest After Fellow Prisoners Test Positive For COVID-19"

From USA Today, "'It gets more frightening': As coronavirus surges in prisons, families of elderly inmates wait in fear"

April 9, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

April 8, 2020

"The Misplaced Trust in the DOJ's Expertise on Criminal Justice Policy"

The title of this post is the title of this notable new paper authored by Shon Hopwood now available via SSRN. Here is its abstract:

In this Review of Professor Rachel Barkow's new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, I address Professor Barkow’s point about law enforcement resisting criminal justice reforms.  I place particular emphasis on the Department of Justice’s (DOJ) and the National Association of Assistant U.S. Attorneys’ (NAAUSA) opposition to nearly any federal criminal justice reform.  Federal prosecutors often claim that they just enforce the law — no more, no less.  But their actions show the contrary.

Through presidential administrations of both parties, the DOJ and the NAAUSA have affirmatively opposed most federal criminal justice reforms on issues involving sentencing, corrections, and clemency.  Oftentimes they weigh in on issues for which their prosecutors have no expertise.  Even worse, they have thwarted the goals of the very presidents they serve, especially if the president sets out to reform the system in ways that infringe on the DOJ’s prerogatives. 

If their opposition to reform were rooted in public safety or fairness, that would be one thing.  But through their lobbying efforts, they often advocate for policies that make it easier for federal prosecutors to charge and incarcerate people — as if that is the only worthy goal of the federal criminal justice system.  And all too often federal policymakers — whether members of Congress, the White House, or the U.S. Sentencing Commission — have listened.  As a result, there are now nearly 4,450 federal statutes and hundreds of thousands of federal regulations carrying criminal penalties, excessively punitive federal sentences, and a federal prison population that has increased by 618 percent since 1980.

April 8, 2020 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Recommended reading, Who Sentences | Permalink | Comments (0)

Does splintered nature of DC Circuit panel ruling suggest federal executions are now unlikely until at least 2022?

As reported in this post yesterday, a divided DC Circuit panel lifted an injunction on federal executions via this 88-page opinion in In Re: Federal Bureau Of Prisons’ Execution Protocol Cases, No. 19-5322 (DC Cir. April 7, 2020).  Over at Crime & Consequences, Kent Scheidegger here provides an effective summary of the three opinions from the three judges on the panel while noting that the "division on the panel clearly requires further review, and the court on its own motion stayed the issuance of its mandate to allow it."  In other words, the defendants subject to possible execution now have time and every good reason to ask the full DC Circuit and also SCOTUS to address just how federal executions must be conducted under existing statutory authority.

I cannot imagine any reason why defendants would not first seek en banc DC Circuit review.  I am not an expert in en banc procedures, but I do know just the process of just seeking such review and having it rejected can itself often take at least a few months.   In this case, given the issue and the split among the panel judges, I would guess the odds of a grant of en banc review are much higher than usual.  If such review is granted, I would be surprised to see a full opinion from the full DC Circuit until sometime in (early?) 2021.

Whatever the DC Circuit does and whenever it does it, an appeal to the US Supreme Court is a near certainty.  If the full DC Circuit takes up this case and provides a clear script for federal executions to go forward, I suppose it is possible that SCOTUS would not grant review.  But I think it quite likely, no matter what the DC Circuit does, that this matter will be considered on the merits by SCOTUS.  And, roughly speaking, it can often take up to 18 months or 2 years between a lower court's ruling and a disposition on the merits by the Supreme Court.  (The Fourth Amendment case of Kansas v. Glover decided by SCOTUS this week, for example, had been decided by the Kansas Supreme Court 21 months ago in July 2018.)

Of course, the Justice Department could urge for this matter to be litigated more quickly, and maybe could even ask immediately for SCOTUS review by claiming it could not operate an execution protocol effectively on the terms set out in the DC Circuit panel decision.  But, of course, the Justice Department has a lot on its plate these days; it hardly clear, practically or politically, that DOJ will want to press forward with any suggestion that this case involves priority matters at this time.  

Future litigation realities aside, there are other political/legal possibilities that might change this federal capital landscape and timeline.  Congress could alter the text of the statute that is the focal point of this legal battle.  But that seems unlikely when Congress is itself busy with more pressing matters, and a legislative change would itself likely engender just another type of litigation.  Perhaps more likely, as we are now less than seven months to a scheduled election, is a change in administration.  For the first time since 1988, it appears that the Democratic nominee for president will campaign as an opponent of capital punishment.  If a Democrat is in charge come 2021, it is possible (though not a certainty) that the Justice Department will not continue to seek conduct federal executions).

Long story short: though the death-row defendants lost a battle yesterday, the always lengthy capital litigation war is still a long way from final resolution.

Prior related posts:

April 8, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Reforms without Results: Why states should stop excluding violent offenses from criminal justice reforms"

The title of this post is the title of this notable new Prison Policy Initiative report authored by Alexi Jones.  Here is how the data-rich report gets started:

States are increasingly recognizing that our criminal justice system is overly punitive, and that we are incarcerating too many people for too long.  Every day, 2.3 million incarcerated people are subject to inhumane conditions, offered only limited opportunities for transformation, and are then saddled with lifelong collateral consequences.  Yet as states enact reforms that incrementally improve their criminal justice systems, they are categorically excluding the single largest group of incarcerated people: the nearly 1 million people locked up for violent offenses.

The staggering number of people incarcerated for violent offenses is not due to high rates of violent crime, but rather the lengthy sentences doled out to people convicted of violent crimes.  These lengthy sentences, relics of the “tough on crime” era, have not only fueled mass incarceration; they’ve proven an ineffective and inhumane response to violence in our communities and run counter to the demands of violent crime victims for investments in prevention rather than incarceration.

Moreover, cutting incarceration rates to anything near pre-1970s levels or international norms will be impossible without changing how we respond to violence because of the sheer number of people — over 40% of prison and jail populations combined — locked up for violent offenses.  States that are serious about reforming their criminal justice systems can no longer afford to ignore people serving time for violent offenses.

There are, unquestionably, some people in prison who have committed heinous crimes and who could pose a serious threat to public safety if released.  And by advocating for reducing the number of people incarcerated for violent offenses, we are not suggesting that violence should be taken any less seriously.  On the contrary, we suggest that states invest more heavily in violence prevention strategies that will make a more significant and long-term impact on reducing violence, which, again, reflects what most victims of violent crime want.  The current response to violence in the United States is largely reactive, and relies almost entirely on incarceration, which has inflicted enormous harms on individuals, families, and communities without yielding significant increases in public safety.

April 8, 2020 in Data on sentencing, Detailed sentencing data, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

April 7, 2020

Pretty new BOP COVID-19 update page reports ugly new spike in COVID cases among federal inmates and staff

Sometime today, the federal Bureau of prisons updated its BOP's COVID-19 Update page.  The new page now has a map that now shows the "34 BOP facilities and 6 RRCs affected nationwide" by COVID_19 cases.  The page also report that as "04/07/2020, there are 241 federal inmates and 73 BOP staff who have tested positive for COVID-19 nationwide. There have been 8 federal inmate deaths and 0 BOP staff member deaths attributed to COVID-19 disease."  (Just two days ago, on April 5,  the page reported 138 federal inmates and 59 federal prison staffers had tested positive for the coronavirus).

This BOP page is now also reporting that "Since the release of the Attorney General's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 615 inmates on home confinement."

Meanwhile, the Daily Beast is reporting that "The Bureau of Prisons Just Bought a Ton of Hydroxychloroquine, Trump’s COVID-19 Miracle Drug"

April 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (15)

Reviewing action by (too few) Governors to reduce incarcerated populations in response to COVID crisis

I have been pleased to see a few Governors step up to deal with the COVID crisis created by crowded prisons and jails, but I continue to be disappointing that there are seemingly not that many chief executives being proactive in this space during these harrowing times.  I suspect and fear that I am here not providing a complete accounting of good gubernatorial actions, but I welcome comments or emails for supplementing this list:

Alabama: "Ivey order allows for release of some county jail inmates"

Colorado: "Colorado places a moratorium on new prison intakes during pandemic"

Kentucky: "Kentucky plans to release more than 900 prisoners because of the COVID-19 outbreak"

Illinois: "Pritzker signs executive order allowing medical furloughs for IDOC inmates vulnerable to coronavirus"

Ohio: "Coronavirus in Ohio: Gov. Mike DeWine plans to release some prison inmates due to COVID-19"

New Mexico: "Gov. orders early release of some inmates"

New York: "NY to release 1,100 parole violators as coronavirus spreads"

April 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Split DC Circuit panel (after taking twice as long as Justice Alito urged) vacates preliminary injunction blocking resumption of federal executions

As regular readers may recall, Attorney General William Barr last July announced a new Federal Execution Protocol in order to enable the federal government to resume capital punishment after a nearly two decade lapse.  AG Barr set execution dates for five (mysteriously selected) federal murders starting in December 2019, which of course got lots of federal capital litigation going.

In late November 2019, as noted here, a federal district judge enjoined the scheduled federal executions based on the view that the planned execution protocol "exceeds statutory authority."  In short order, the DC Circuit and then SCOTUS refused to vacate that injunction, but SCOTUS on December 6 urged the DC Court of Appeals to render a full decision on the matter "with appropriate dispatch."  Justice Alito issued a statement, joined by Justices Gorsuch and Kavanaugh, said her could "see no reason why the Court of Appeals should not be able to decide this case, one way or the other, within the next 60 days." 

We are now 123 days from when these matters were addressed by the Supreme Court on December 6, 2019, and we have also now experienced a global pandemic.  But the federal capital punishment train is still on the tracks, it seems, as today a divided DC Circuit panel handed down an 88-page opinion in In Re: Federal Bureau Of Prisons’ Execution Protocol Cases, No. 19-5322 (DC Cir. April 7, 2020) (available here).  Here is how the opinion gets going:

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge KATSAS.

Concurring opinion filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge TATEL.

PER CURIAM: The Federal Death Penalty Act of 1994 (FDPA) requires federal executions to be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.” 18 U.S.C. § 3596(a). It is common ground that this provision requires the federal government to adhere at least to a State’s choice among execution methods such as hanging, electrocution, or lethal injection. The district court held that the FDPA also requires the federal government to follow all the subsidiary details set forth in state execution protocols—such as, in the case of lethal injection, the method of inserting an intravenous catheter. On that basis, the court preliminarily enjoined four federal executions.

Each member of the panel takes a different view of what the FDPA requires. Because two of us believe that the district court misconstrued the FDPA, we vacate the preliminary injunction.

I presume the federal death row defendants in this case will now seek en banc and/or SCOTUS review, so more litigation is much more certain than more executions in the federal system.

Prior related posts:

April 7, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"We’ll see many more covid-19 deaths in prisons if Barr and Congress don’t act now"

The title of this post is the headline of this new Washington Post op-ed authored by three federal public defenders, Lisa Freeland, David Patton and Jon Sands. Here are excerpts:

The numbers of covid-19 cases in the Bureau of Prisons are rising exponentially, at a pace far surpassing the U.S. population at large....  And because testing has been grossly insufficient, these numbers are almost certainly an undercount. 

As federal public and community defenders, we represent the majority of those charged with federal crimes.  We are witnessing the public health crisis firsthand.  Many of our clients fall into the category of people the Centers for Disease Control and Prevention deemed particularly vulnerable to covid-19....  Most of them were convicted of nonviolent offenses.  They must be safely released under public health protocols, some even temporarily, to spare them a high risk of death.

It is too late for the crisis to be entirely averted, but the worst can be prevented if Congress and Attorney General William P. Barr act with urgency.  So far, however, Barr and federal prosecutors have opposed even modest efforts to reduce the prison population.  In courtrooms across the country, when lawyers seek bail or compassionate release for vulnerable people accused or convicted of nonviolent offenses, federal prosecutors have vigorously opposed the requests — even in cases where people’s sentences are near completion.  In nearly every case, prosecutors are making the same argument that Barr advanced in a recent statement: that inmates are safer in prison than they would be at home. It is an absurd claim, contradicted by science and fact....

The attorney general has the authority to rapidly transfer vulnerable people to home confinement; Congress expressly equipped Barr to use this authority broadly with passage of the Cares Act.  But for reasons we cannot fathom, he failed to immediately use this lifesaving authority.  On March 26, Barr issued a policy that purported to expand the use of home confinement but, rather than helping to release people, erected new hurdles to transferring our clients to safety.  On April 3, he issued a memorandum full of mixed messages.  Although he directed the Bureau of Prisons to act “with dispatch” to increase the use of home confinement, he named only three prisons and “others similarly affected” as deserving priority.  He still does not seem to get it: Every prison and jail requires immediate attention.  Altogether, Barr’s guidance has been muddled and arbitrary, bearing little connection to the enormity of the crisis or threat to public safety.

Because Barr is obstructing reasonable efforts to release vulnerable people, Congress must act. Three simple, temporary provisions that could be set to expire after the covid-19 emergency passes would do enormous good.  First, bail should be presumed for anyone awaiting trial or sentencing absent credible evidence that the person poses a specific threat of violence.  Second, for anyone already sentenced, judges should consider temporary release for the duration of the public health emergency.  Third, vulnerable people seeking court-ordered compassionate release should not be subject to Bureau of Prisons administrative hurdles. 

April 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Yet another Texas execution postponed due to coronavirus

As reported in this new AP piece, headlined "4th Texas execution delayed in midst of virus outbreak," administration of the death penalty in the US continue to be halted amidst the coronavirus pandemic.  Here is more:

A fourth scheduled execution of a Texas death row inmate was delayed Monday because of the coronavirus spread around the state.  Billy Joe Wardlow’s execution was postponed from April 29 to July 8.

Wardlow, 45, was condemned for the June 1993 fatal shooting of 82-year-old Carl Cole during a robbery at his home in Cason, located about 130 miles (209 kilometers) east of Dallas....

The execution date was changed by state District Judge Angela Saucier of Titus County in East Texas.  While Saucier didn’t mention COVID-19 in her order, Morris County District Attorney Steve Cowan had requested the change citing the statewide disaster declaration due to the virus.  He also cited three other executions the Texas Court of Criminal Appeals delayed in March and earlier this month. Wardlow’s attorneys had requested the execution date instead be withdrawn, which would have resulted in a new date much later than July 8.

Some prior related capital COVID posts:

April 7, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

April 6, 2020

Latest BOP data has another big spike in COVID cases, and ugly press reports and lawsuits now part of story

Late yesterday, the BOP's COVID-19 Update page reported, as of April 5, 138 federal inmates and 59 federal prison staffers had tested positive for the coronavirus.  As of the early evening of April 6, that page now reports 196 inmates and 63 staffers positive for COVID-19.  Here is where these latest BOP numbers come from:

(Inmate) 04/06/2020 - USP Atlanta (10); FCI Bennettsville; MDC Brooklyn (2); FCI Butner Low (14); FMC Butner; FCI Butner Medium I (39); USP Canaan; FMC Carswell; FCI Cumberland; FCI Danbury (22); FCI Elkton (8); FCI Forrest City Low (9); FCI Forrest City Medium (2); USP Lompoc (23); FCI Milan (3); MCC New York (4); FCI Oakdale I (22); FCI Otisville; FCI Yazoo City Low (2); FCI Yazoo City Medium (6); USP Yazoo City (14); RRC Brooklyn, NY (4); RRC Chicago, IL; RRC New Orleans, LA; RRC Phoenix, AZ; RRC St Louis, MO; RRC Wilmington, DE; FLM Guam.

(Staff) 04/06/2020 - Atlanta, GA (3); Brooklyn, NY (6); Butner, NC; Waymart (Canaan), PA; Chicago, IL (3); Danbury, CT (7); Lisbon (Elkton), OH; Forrest City, AR Low (2); Forrest City, AR Medium (2); Fort Dix, NJ; Leavenworth, KS; Lompoc, CA (5); Milan, MI; New York, NY (6); Oakdale, LA (4); Otisville, NY (3); Ray Brook, NY (6); Talladega, AL (3); Tucson, AZ; Yazoo, MS Low (2); Yazoo, MS Medium; Central Office, Washington, DC; Grand Prairie Office Complex, Grand Prairie, TX; Southeast Regional Office, Atlanta, GA.

As this list grows, so do media stories (and the first big lawsuit) about the problems created by COVID for federal prisons:

From the Wall Street Journal, "Coronavirus Inside Oakdale Prison: ‘Our Sentences Have Turned Into Death Sentences’"

From the News & Observer, "Coronavirus cases surge at Butner prison complex in NC, county official reports"

From Canton Rep, "Coronavirus: DeWine sending National Guard to Elkton federal prison east of Canton after 3 deaths"

And from ABC News, "ACLU seeks release of federal prison inmates where 5 died: A new class-action lawsuit demands the release of hundreds of high-risk inmates at a federal prison in Louisiana where the coronavirus has claimed the lives of five prisoners and infected nearly two dozen others"

April 6, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Attorney General Barr instructs federal prosecutors to consider "vulnerability to COVID-19" when litigating pre-trial detention issues

As reported in this new Politico piece, "Attorney General Bill Barr is taking another step to adjust the federal criminal justice system to the ongoing coronavirus pandemic, encouraging prosecutors to consider the dangers posed by sending a defendant to await trial in jail as the virus sweeps into such facilities."  Here is more:

Barr sent a memo Monday to top federal prosecutors across the country urging them to consider not only the risks a defendant might face in detention, but the risk inherent in increasing the jail population at a time when cases of the virus are on the increase.

“You should now consider the medical risks associated with individuals being remanded into federal custody during the COVID-19 pandemic,” Barr wrote in his two-page missive. “Even with the extensive precautions we are currently taking, each time a new person is added to a jail, it presents at least some risk to the personnel who operate that facility and to the people incarcerated therein.”

While Barr’s directive seems intended to prod prosecutors to show more flexibility in considering release, bail or home confinement pending trial, the memo is replete with caveats and warnings that defendants who pose a threat to public safety still need to be detained despite the challenges the virus is creating for jails and prisons nationwide....

The new directives from Barr come as the Justice Department is increasingly besieged with lawsuits, writs and legal motions seeking release of individual inmates as well as large classes of prisoners considered most vulnerable to serious illness or death from Covid-19.

As of Sunday, the federal Bureau of Prisons reported 138 inmates have been confirmed as infected with the virus.  Eight deaths from it have been recorded.  Barr’s memo from Friday urged prison official to make a priority of considering early releases for three prison complexes suffering serious outbreaks — those in Oakdale, La., Elkton, Ohio and Danbury, Conn.

One new suit filed Monday seeks release of prisoners at the Oakdale complex considered at highest risk from the illness.

The full text of this new two-page Barr memo is available at this link.

April 6, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Brennan Center urges all Governors to use executive authority to "release vulnerable people who pose no risk to public safety from incarceration"

The title of this post would make plenty of sense even in a world without COVID, as vulnerable people who pose no risk to public safety really ought not be kept behind bars even in the best of times.  But, of course, right now we live in a world with COVID, and that has prompted the Brennan Center to produce this new seven-page letter, addressed to "the Honorable Governors of the fifty states," which includes these passages at the outset:

However, the almost 2 million people behind bars at the county and state level, plus the thousands of employees who work in correctional institutions, face an even greater risk of illness and death than the general public.  We write today to urge you to use your full authority as Governors to release as many people as possible from incarceration, provided they do not pose serious public safety threats, for the duration of the pandemic.  This effort should focus on people who are especially vulnerable to infection.  Specifically, we recommend you take the following steps, which we explain in depth below:

• Make full use of your clemency authority to commute the sentences of vulnerable people to time served, allowing their immediate release, or fashion other appropriate relief;

• Expand your States’ “good time credit” or equivalent programs to reduce overall incarceration;

• Work with state prosecutors to keep people who have been convicted of crimes, but not yet sentenced, out of prison for the duration of this health crisis; and

• Take steps to limit the damaging impact of criminal justice debt, including but not limited to court fees and fines.

The letter includes this partial accounting of some steps that have already been taken in some jurisdictions:

Already, some state leaders have acted to prevent the spread of Covid-19 in their correctional systems. For example, in Illinois, Governor J.B. Pritzker issued an executive order stopping the Illinois Department of Corrections from admitting new people into prison.  On March 22, Governor Jared Polis of Colorado signed an executive order ensuring detention centers reduce the number of people meeting in groups in “any confined indoor or outdoor space,” such as housing unit common areas.  In New York, Governor Andrew Cuomo issued an order on March 27th to release approximately 1,100 people from prisons and jails, specifically non-serious parole violators.  Iowa’s Department of Corrections is expediting the release of about 700 incarcerated people who have been determined eligible by the Iowa Board of Parole in addition to ensuring that those released have a safe place to stay.  And California is granting early release to 3,500 incarcerated individuals in an attempt to reduce overcrowding in state prisons during the COVID-19 pandemic.  The accelerated prison discharges apply to those who were set to be released within the next 60 days.

April 6, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Exciting new (COVID-free) reduction of LWOP sentence, based in part on "sentencing disparity," using § 3582(c)(1)(A) in US v. Millan

In this post a few weeks ago, just before the COVID-19 outbreak became the urgent basis for lots of sentence reductions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A), I flagged a number of new positive rulings granting sentencing reductions using 3582(c)(1)(A) on various grounds.  I am now pleased to be able spotlight another great ruling that adds to the list of reasons (other than COVID) that have now served as the basis for a sentence reduction, even of a life sentence. 

I must disclose that this new ruling, in US v. Millan, No. 91-CR-685 (LAP) (SDNY April 6, 2020) (download below), is especially meaningful to me because I had the honor of helping Harlan Protass a bit with the motion papers.  But I think all those working on sentence reduction motions will find value in the 45-page Millan opinion's discussion of the factors that justified reducing Eric Millan's sentence from LWOP to time served of 28 years.  I recommend the opinion in full, and the opening and closing paragraphs highlight the essentials:

Before the Court is Eric Millan’s motion, pursuant to 18 U.S.C. § 3582(c)(1)(A), for an Order reducing his life sentence (of which he has already served more than 28 years) to time served.1 The Government opposed the motion, and the parties filed additional letters. For the reasons that follow, the motion is granted....

Mr. Millan’s extraordinary rehabilitation, together with his remorse and contrition, his conduct as model prisoner and man of extraordinary character, his leadership in the religious community at FCI Fairton, his dedication to work with at-risk youth and suicide prevention, and the support of BOP staff at FCI Fairton, including their opinion that if released, Mr. Millan would be a productive member of society and no danger to others, and the sentencing disparity that would result from further incarceration all constitute extraordinary and compelling reasons justifying a reduction in sentence.  Accordingly, for all of the foregoing reasons, pursuant to 18 U.S.C. § 3582(c)(1)(A), Eric Millan’s motion for a reduction of sentence is granted, and his life sentence is reduced to time served.

Download US v. Millan 91-CR-685 (LAP). Order Granting Compassionate Release

As the title of this post highlights, I think it is especially notable and important that the court stressed "the sentencing disparity that would result from further incarceration" as one of the bases for finding that this case involved "extraordinary and compelling reasons justifying a reduction in sentence."  Many persons who are serving the most extreme federal sentences have often been subject to a mandatory minimum term or a trial penalty or some other case-processing sentencing reality that has resulted in a much longer sentence for one defendant than has been served by a number of similarly situated defendants.  Given that Congress stressed to judges in § 3553(a)(6) "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," this kind of application of § 3582(c)(1)(A) seems to be a sound and sensible way to remedy problematic sentencing disparities in appropriate cases like Eric Millan's.

UPDATE: I learned this afternoon of another (COVID-free) sentence reduction ruling today in US v. Decator, No. CCB-95-0202 (D. Md. April 6, 2020) (download below).  Here is how this opinion starts and some key passages:

Kittrell Decator is a federal prisoner who is serving a 633-month sentence for convictions stemming from his participation in several armed bank robberies in the early 1990s. To date, Decator has served over 25 years of his sentence. Now pending is Decator’s motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (the “compassionate release” statute). The government opposes the motion, and Decator has replied. For the reasons explained below, the motion will be granted and Decator’s sentence reduced to time served....

Multiple district courts have reasoned that “the First Step Act’s change in how sentences should be calculated when multiple § 924(c) charges are included in the same indictment constitutes an extraordinary and compelling reason under 18 U.S.C. § 3582(c)(1)(A).” See United States v. Owens, No. 97-CR-2546-CAB, ECF 93 at 4 (S.D. Cal. Mar. 20, 2020) (collecting cases). The court agrees with this reasoning. The fact that Decator, if sentenced today for the same conduct, would likely receive a dramatically lower sentence than the one he is currently serving, constitutes an “extraordinary and compelling” reason justifying potential sentence reduction under § 3582(c)(1)(A)(i)....

The court acknowledges that Decator’s offenses were indeed serious. While no one was physically injured, Decator’s actions caused psychological pain to his victims. The court believes that the 25-plus years in prison Decator has already served reflect the seriousness of his conduct and demonstrate the need for deterrence, public safety, and respect for the law. But Decator’s continued incarceration would be both disproportionate to the seriousness of his offense and to what Congress now deems appropriate for this kind of conduct.

Download Decator Decision

April 6, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Reviewing more headlines from more states about coronavirus cases among prisoners and prison staff

Just three 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, I suspect there is not a state in the nation that does not some have COVID cases somewhere within its correctional populations or staff.  Here is a round up of just some of the headlines I saw from some jurisdictions this morning (with a bit of extra emphasis on states I have not noted before in these round-ups):

Federal: "Inmates, Staff On Edge As COVID-19 Spreads Through Federal Prisons"

Alabama: "Alabama prison system’s COVID-19 plan anticipates widespread infection, deaths, National Guard intervention"

Florida: "‘Ticking time bomb:’ Florida acknowledges first inmate coronavirus case — and then a second"

Illinois: "Cook County Jail Now Reports 234 Inmates Have Tested Positive for Coronavirus"

Kansas: "Lansing prison announces more COVID-19 cases"

Michigan: "Why coronavirus is running rampant in Michigan prisons

New Hampshire: "Employee at NH State Prison for Men tests positive for COVID-19, officials say"

New Jersey: "Inmate says she was left ‘basically for dead’ in room at N.J. prison after getting sick amid coronavirus outbreak"

New York: "First Rikers virus-positive fatality was jailed on technicality"

North Carolina: "7 state prison inmates in NC have now tested positive for COVID-19"

Ohio: "Ohio inmate alleges COVID-19 outbreak in prison, lack of testing, threats of retaliation"

South Carolina: "Inmate at SC jail tests positive for coronavirus, 35 more in isolation, cops say"

Tennessee: "First state prison inmate tests positive"

Texas: "Texas Dept of Criminal Justice provides update on COVID-19 cases in prisons"

Virginia: "13 confirmed cases of inmates with the coronavirus in Virginia state facilities"

I remain depressingly confident that this is a woefully incomplete the COVID-19 challenges that are likely facing every jurisdiction in the US.

April 6, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

SCOTUS upholds, by vote of 8-1, traffic stop after run of vehicle plate shows revoked driver's license

The Supreme Court this morning handed down its opinion in Kansas v. Glover, No. 16-556 (S. Ct. Apr. 6, 2020) (available here). Justice Thomas delivered the opinion of the Court, which start this way:

This case presents the question whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license.  We hold that when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable.

The short majority opinion is sure at the end to reiterate that "the ultimate touchstone of the Fourth Amendment is reasonableness;" the Court makes sure to "emphasize the narrow scope of our holding" by stressing "the presence of additional facts might dispel reasonable suspicion." Ergo, keep litigating.

A five-page concurrence authored by Justice Kagan and joined by Justice Ginsburg makes an interest collateral consequences point. Here is an excerpt (with cites removed):

I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws.  Consider, for example, if Kansas had suspended rather than revoked Glover’s license.  Along with many other States, Kansas suspends licenses for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support.  Indeed, several studies have found that most license suspensions do not relate to driving at all; what they most relate to is being poor. So the good reason the Court gives for thinking that someone with a revoked license will keep driving — that he has a history of disregarding driving rules — would no longer apply.

A lengthy concurrence authored by Justice Sotomayor gets started and ends this way:

In upholding routine stops of vehicles whose owners have revoked licenses, the Court ignores key foundations of our reasonable-suspicion jurisprudence and impermissibly and unnecessarily reduces the State’s burden of proof. I therefore dissent....

Vehicle stops “interfere with freedom of movement, are inconvenient, and consume time.” Prouse, 440 U. S., at 657.  Worse still, they “may create substantial anxiety” through an “unsettling show of authority.” Ibid.  Before subjecting motorists to this type of investigation, the State must possess articulable facts and officer inferences to form suspicion. The State below left unexplained key components of the reasonable-suspicion inquiry.  In an effort to uphold the conviction, the Court destroys Fourth Amendment jurisprudence that requires individualized suspicion.  I respectfully dissent.

April 6, 2020 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

April 5, 2020

Bureau of Prisons provides update on its work to implement increased home confinement in response to COVID-19

With thanks to readers who made sure I did not miss this news on a Sunday night, the federal Bureau of Prisons has posted here a new memo titled "Update on COVID-19 and Home Confinement."  Here is the full text with emphasis and links from the original:

In response to COVID-19, the Bureau of Prisons (BOP) has instituted a comprehensive management approach that includes screening, testing, appropriate treatment, prevention, education, and infection control measures.

The BOP has increased Home Confinement by over 40% since March and is continuing to aggressively screen all potential inmates for Home Confinement. On April 3, the Attorney General enacted emergency authority under the CARES Act, to further increase Home Confinement.

Given the surge in positive cases at select sites and in response to the Attorney General's directives, the BOP has begun immediately reviewing all inmates who have COVID-19 risk factors, as described by the CDC, starting with the inmates incarcerated at FCI Oakdale, FCI Danbury, FCI Elkton and similarly-situated facilities to determine which inmates are suitable for home confinement.

Inmates do not need to apply to be considered for home confinement. Case management staff are urgently reviewing all inmates to determine which ones meet the criteria established by the Attorney General. The Department has also increased resources to review and make appropriate determinations as soon as possible.

While all inmates are being reviewed for suitability, any inmate who believes they are eligible may request to be referred to Home Confinement and provide a release plan to their Case Manager. The BOP may contact family members to gather needed information when making decisions concerning Home Confinement placement.

Since the release of Attorney General Barr's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 566 inmates on home confinement. There are currently 3,419 inmate on home confinement and 7,199 inmates in Residential Reentry Centers (RRCs). To further assist inmates in pre-release custody, the BOP has waived financial requirement to pay subsistence fees.

We are deeply concerned for the health and welfare of those inmates who are entrusted to our care, and for our staff, their families, and the communities we live and work in. It is our highest priority to continue to do everything we can to mitigate the spread of COVID-19 in our facilities.

The BOP appreciates the dedication and significant work of BOP staff in carrying out their difficult mission in the face of the public emergency. The BOP would also like to thank the Attorney General, the CDC, the Public Health Service, and our state and local community partners for their support and assistance in the BOP's COVID-19 response.

A few of many prior related posts:

April 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Latest BOP numbers with still more COVID cases at still more federal facilities

The BOP's COVID-19 Update page has been updated to reveal that, as of April 5, there are 138 federal inmates and 59 federal prison staffers who have tested positive for the coronavirus.  Here is where these latest BOP numbers come from:

(Inmate) 04/05/2020 - USP Atlanta (9); FCI Bennettsville; MDC Brooklyn; FCI Butner Low (7); FMC Butner; FCI Butner Medium I (3); USP Canaan; FMC Carswell; FCI Danbury (21); FCI Elkton (7); FCI Forrest City Low (x); FCI Forrest City Medium (x); USP Lompoc (17); FCI Milan (3); MCC New York (4); FCI Oakdale I (22); FCI Otisville; FCI Yazoo City Medium (5); FCI Yazoo City Low (2); USP Yazoo City (11); RRC Baltimore; RRC Brooklyn, NY (4); RRC Chicago, IL; RRC Dallas, TX; RRC Phoenix, AZ; RRC St Louis, MO; FLM Guam.

(Staff) 04/05/2020 - Atlanta, GA (3); Brooklyn, NY (5); Butner, NC; Waymart (Canaan), PA; Chicago, IL (3); Danbury, CT (7); Lisbon (Elkton), OH; Forrest City, AR Low (2); Forrest City, AR Medium (2); Fort Dix, NJ; Leavenworth, KS; Lompoc, CA (2); Milan, MI; New York, NY (6); Oakdale, LA (4); Otisville, NY (2); Ray Brook, NY (7); Talladega, AL (3); Tucson, AZ; Yazoo, MS Low (2); Yazoo, MS Medium; Central Office, Washington, DC; Grand Prairie Office Complex, Grand Prairie, TX; Southeast Regional Office, Atlanta, GA.

By my count, this list now shows 27 different federal prison facilities with inmates who have tested positive and 24 different communities with federal prison staff who have tested positive.  The numbers of grown steadily over the last two weeks, and I have no reason to believe they will not continue to do so.

April 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

What can and should we really learn from crime data in the midst of a pandemic and lockdowns?

The question in the title of this post is prompted by two new articles spotlighting declines in crime amidst our crazy times: from The Hill, "Crime rates drop across the nation amid coronavirus"; from USA Today, "Crime rates plummet amid the coronavirus pandemic, but not everyone is safer in their home."  Here are some excerpts from this second piece:

Crime rates plunged in cities and counties across the U.S. over the second half of March as the coronavirus pandemic drove millions of residents to stay inside their homes.  Police logged dramatically fewer calls for service, crime incidents and arrests in the last two weeks of March than each of the previous six weeks, a USA TODAY analysis of crime data published by 53 law enforcement agencies in two dozen states found.  The analysis is among the largest studies measuring the impact of the coronavirus on crime and policing.

Massive drops in traffic and person stops — as much as 92% in some jurisdictions — helped drive sharp declines in drug offenses and DUIs.  Thefts and residential burglaries decreased with fewer stores open and homes unoccupied, and some agencies logged fewer assaults and robberies. Bookings into each of nearly two dozen county jails monitored by the news organization fell by at least a quarter since February.

At the same time, calls for domestic disturbances and violence surged by between 10% and 30% among many police agencies that contributed data. Several also saw upticks in public nuisance complaints such as loud noise from parties.  The Baltimore Police Department, for example, received 362 loud music complaints in the last two weeks of March, nearly matching its total for all of February.

The trends reflect both a purposeful reduction in police activity and officer-initiated stops and the impact of stay-at-home orders that have closed huge swaths of Main Street and pushed people into their homes and out of traditional crime hotspots, such as bars, clubs and social events....

The study compared weekly totals between Feb. 2 and March 28.  Reporters analyzed daily calls for service and incident data published by 30 local police and sheriff’s agencies that range from those covering big cities like Dallas to small communities like St. John, Indiana.  Analysis of arrests drew from inmate logs at nearly two dozen county jails in six states, which local USA TODAY Network newspapers already track daily.

Many police departments say they are intentionally arresting fewer people to avoid the potential spread of coronavirus in jails.  Police in Delray Beach, Florida, are reducing proactive policing, such as drug busts.  In nearby Gainesville, Florida, officers are increasingly issuing summons instead of making arrests for minor offenses, Police chief inspector Jorge Campos said. “It’s not that we’re not enforcing (the law),” Campos said.  “It’s that we’re finding alternative ways of dealing with the issue rather than make physical arrests.”...

In the counties reviewed by USA TODAY, the average week included about 300 DUI bookings.  Now, it’s at about 100.  Senior citizens arrests are about a sixth of what they were in February.  Several police departments also recorded significant drops in drug, narcotics and alcohol crimes — some of the most common ways people land in jail in America, according to FBI data.  Such incidents over the second half of March fell 76% in Denver; 87% in Providence, Rhode Island; and 45% in Seattle, the epicenter of the nation’s first major coronavirus outbreak, data shows.

Drug charges often result from traffic stops....  But such stops have ground to a near halt in some regions across the country in the last two weeks.  In Cincinnati, police logged an average of 384 traffic stops per week before mid-March but 39 per day after — a 90% drop.  In Santa Monica, California, traffic stops fell from 182 a week to 14.  They fell 79% in Baltimore and 46% in Virginia Beach, Virginia.

In many regions, the traffic-stop declines dovetailed with fewer DUI incidents, which likely tanked after bars closed, Seattle police spokesman Patrick Michaud said.  Police in Virginia Beach, Montgomery County and Seattle each recorded fewer than half as many DUIs in the second half of March compared to previous weeks on average.  “There are just less crimes of opportunity when the opportunity all but disappears because everyone is spending time indoors,” said Michaud, adding that residential burglaries also have decreased in Seattle in recent weeks.

This article highlights how changes in citizen behavior (driven in part by shutdowns) are part of this new crime data story, but it also reveals how changes in police behavior also account for new criminal justice realities. I am hopeful (but not really optimistic) that the positive aspects of changes in both citizen and police behavior might persist after the pandemic passes.

Prior related post:

April 5, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)