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April 18, 2020

Will Prez Trump use his clemency pen to "rescue" his pal Roger Stone from federal prison?

As this Hill piece details, Prez Trump has used his Twitter fingers to call out the last bad legal development for his long-time pal Roger Stone:

President Trump late Friday denounced a judge's decision to deny Roger Stone a new trial after lawyers for the longtime GOP operative and former Trump campaign adviser raised concerns about one juror's political leanings.

“This is a disgraceful situation!” Trump wrote on Twitter, sharing a tweet blasting the decision and calling for a pardon for Stone.

Stone was found guilty in 2019 of obstructing a congressional probe into Russia's election interference and of witness tampering. He was sentenced in February to more than three years in prison but has vociferously maintained his innocence.

His lawyers had asked for a new trial after raising concerns about one juror's political leanings, prompting Trump to allege that the trial had been rigged against his former campaign adviser.  U.S. District Judge Amy Berman Jackson, an Obama appointee, ruled this week that Stone’s lawyers did not convincingly argue that any bias by the juror in question influenced the verdict....

In his first television interview since the lifting of a 16-month gag order, Stone told Fox News’s Tucker Carlson on Friday night that his prison sentence amounts to a “death sentence.”

“So at this point, the judge has ordered me to surrender in two weeks and at 67 years old with some underlying health problems, including a history of asthma, I believe with the coronavirus it is essentially a death sentence,” he said, adding that he is hoping for a pardon from Trump.

After Roger Stone's sentencing two months ago, I predicted that Prez Trump would be inclined to hold back on any possible clemency action at least until Stone's new trial motion was resolved and Stone faced the prospect of heading to prison.  That time would seem to be now, and so I wonder if Prez Trump may now be inclined to follow-up on his tweet by taking out his clemency pen. 

It bears recalling that Prez Trump last month, as noted in this post, said his administration was "looking at" using executive authority to free elderly, nonviolent offenders from federal prisons in response to the coronavirus pandemic.  From a press report on the comment:  "We have been asked about that and we're going to take a look at it.  It's a bit of a problem," Trump said,  "We're talking about totally nonviolent prisoners, we are actually looking at that, yes."

Notably, Roger Stone would certainly qualify as a elderly, nonviolent offender, even a "totally nonviolent prisoner."  I am now wondering if Prez Trump might be thinking now that he could deliver on his prior talk by granting clemency to a number of federal prisoners with Roger Stone's name just happening to get tucked into the list. 

Prior related posts:

April 18, 2020 in Celebrity sentencings, Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

As Ohio and Tennessee delay more executions, might "incremental reopening" in Texas lead to resumption of lethal injections?

The question in title of this post is prompted by news from three states this week:

From Ohio: "Gov. Mike DeWine delays 3 more Ohio executions amid drug shortage"

From Tennessee: "Tennessee Supreme Court delays upcoming execution, citing COVID-19"

From Texas: "Is Texas the first state to roll out a timeline to begin reopening?"

Here is an excerpt from the last of these pieces:

In Texas, Govt. Abbott directed retail stores to begin reopening April 24 and instead deliver products to customers’ cars and homes.  He also ordered state parks to reopen by Monday, directing residents to wear face coverings, keep a distance and stay in groups of five people or less.  And, beginning April 22 restrictions on elective medical procedures will be loosened.  Abbott said the process of reopening the state will happen gradually and will be guided by medical experts.

Instead of kicking off a full restart, the Texas governor announced that a group of medical and economic experts will guide him through a series of incremental steps aimed at slowly reopening the state’s economy.

This AP piece notes that the four executions which Texas had scheduled for March and April were delayed because of coronavirus concerns.  But this DPIC page indicates that Texas has four other executions scheduled for May through July, and the delayed executions were mostly put on hold for 60 days.  If the incremental steps to reopen Texas include restarting its death chamber, the state could have as many as eight executions before the end of the summer (and, if they did, Texas would waste to my speculation that the US could end up in 2020 with its lowest number of executions in nearly four decades).

For various reasons, I somewhat doubt that Texas will be able to get its machinery of death up and running fully in the coming months.  But when there is a will to execute, Texas often finds a way.  So the uncertain reopening of Lone Star lethal injection plans provides another unfolding story at the intersection of COVID and criminal justice.

Some prior related capital COVID posts:

April 18, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

April 17, 2020

Closing a long week with a long list of articles and commentaries highlighting how COVID keeps coursing through incarceration nation

Every week seem extra long these days, and blah weather had me feeling extra blah during this extra long work week.  But I know I am quite lucky to endure these feelings and all our uncertainty in relative comfort and safety, especially when compared to the millions behind bars in the United States.  I will close the long work week with a round up of recent stories and commentaries as we continue experiencing the fall-out of coronavirus coming to incarceration nation:

Some news from various jurisdictions:

Alabama: "'It's horrible': how the US deep south's prisons exacerbate the pandemic"

California: "Chino men’s prison reports 67 cases of coronavirus, 3 confirmed at women’s prison"

Federal: "Interviewed in hiding, escaped NC inmate says he fled coronavirus ‘death sentence’"

Florida: "Two inmates at NW Florida prison die of COVID-19. State officials kept deaths secret"

Gerorgia: "COVID-19 Cases and Fatalities Rise in Georgia Prisons"

Illinois: "‘They Should Be Letting Guys Go’: Six Illinois Prisoners Dead From COVID-19"

Indiana: "COVID-19 spike at Westville prison; 87 inmates test positive"

Louisiana; "Louisiana Prisoners Held In Notorious Isolation Unit Are Facing A ‘Slow-Moving Disaster’"

Maryland: "Senators Van Hollen and Cardin urge Gov. Hogan to take decisive action as 136 coronavirus cases hit Maryland prisons"

Massachusetts: "More Than 150 Positive COVID-19 Cases Reported Among Prisoners, Staff Inside Mass. Jails And Prisons"

Michigan: "The High COVID-19 Infection Rate At This Michigan Prison Has Inmates Fearing For Their Health"

Ohio: "489 Ohio state inmates, 184 jail staff members test positive for COVID-19"

South Dakota: "S.D. Department of Corrections won't say how many inmates are tested for coronavirus"

Texas: "121 inmates with COVID-19 transferred to local prisons"


Some commentary and advocacy from various individuals:

Cara Drinan, "Clemency in a time of COVID-19"

Aya Gruber & Benjamin Levin, "Colorado Supreme Court Fails To Protect State Residents As Coronavirus Grows ‘Exponentially’ In Jails"

Lacino Hamilton, "Where I’m Incarcerated, People With COVID-19 Are Warehoused in a Gym"

Oliver Hinds, "Emptying Prisons To Prevent The Spread Of Coronavirus Will Save Lives On The Outside, Too"

Sarah Lustbader, "'How Can I Keep My Family Safe?': Worrying for My Clients on Rikers"

Dawn Wolfe, "Advocates Say Ohio’s Governor Is Failing To Protect Prisoners From Coronavirus"

Multiple authors, "Release many more people from prison now, Gov. Cuomo"

Multiple authors, "Prison should not be a COVID-19 death sentence"

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

"When Every Sentence is a Possible Death Sentence: Public Defenders Speak From the Front Lines About COVID-19"

The title of this post is the title of this notable new report authored by Irene Oritseweyinmi Joe and Ben Miller for The Justice Collaborative.  Here is the report's executive summary:

Public defenders are tasked with the unenviable job of representing some of the most vulnerable people in society when they are accused of crimes.  At the same time, public defenders receive little thanks for protecting the marginalized and instead face insurmountable odds with insufficient resources and limited public support.  Premal Dharia, founder and director of the Defender Impact Initiative, said, “Public defenders are on the front lines of the devastation wrought by our system of mass criminalization and they are guided by an unwavering dedication to the very people being devastated.”

As the coronavirus ravages communities, courtrooms, jails, and prisons, public defenders are now indispensable to confronting the epidemic.  While not medical professionals, public defenders are the front line, often the only line, between their clients and incarceration.  Since jails and prisons have become hotbeds of COVID-19, with infection rates exponentially larger than the general population, public defenders have the added task of not just protecting their clients’ rights, but also, in many cases, their lives.  Dan Engelberg, the chief of the trial division for the Orleans Parish Public Defender in Louisiana, aptly characterized the efforts of public defenders nationwide over the last few weeks as “heroic and tireless” as they strive to protect the health, humanity, and lives of their clients.

The Justice Collaborative Institute asked nearly 200 public defenders from across the country how the COVID-19 pandemic has impacted their work and personal lives. The responses are revealing.  Nearly half, as of April 2, 2020, reported clients incarcerated in correctional facilities with at least one confirmed case of COVID-19. Over 80% did not think their local court systems were doing enough to protect the health and safety of their clients.  (See Appendix for results from the questionnaire).  Their concerns went beyond the spread of disease.  Public defenders expressed anger over the perceived lack of empathy for their clients’ health, frustration with the many officials who treat their clients’ rights as disposable, and mental distress over the impact the virus is having on their clients, their loved ones, and themselves.

Taken together, their responses form a powerful argument in support of policies, also popular among voters, to dramatically and urgently reduce jail and prison populations in response to COVID-19.  The frontline accounts of public defenders reveal that far too many people in positions of authority continue to undermine public health and safety by processing far too many people daily into the criminal legal system, while at the same time failing to protect the millions of people behind bars.  By doing so, they continue to place the lives of millions — people incarcerated at correctional facilities, people who go to work there, and people who live in surrounding communities — at grave risk.

Law enforcement, prosecutors, judges, and politicians should work with public defenders and urgently adopt policies to limit arrests, expand the use of cite and release, end cash bail, dismiss cases instead of needlessly dragging them out, and release as many people as possible from incarceration who do not reasonably pose a risk to public safety. Such steps can all be taken right now and are options public defenders across the country are advocating for, placing their personal health at risk in many cases, to do so.

April 17, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Lots of new resources from Fair and Just Prosecution on "COVID-19 and Mass Incarceration"

I just saw that the folks at Fair and Just Prosecution have this webpage with helpful updated resources for COVID criminal justice responses. Here is the overview text and links to four documents of note:

The COVID-19 pandemic presents an unprecedented global challenge that is impacting the daily lives of all Americans.  The pandemic’s dire consequences — including infection, illness and the tragic deaths of thousands — will disproportionately affect vulnerable individuals behind bars.  Rapid action is critical to save the lives of people in correctional facilities and immigration detention.

FJP’s COVID-19 and Mass Incarceration resources aim to identify innovative thinking and best practices for elected prosecutors and other criminal justice leaders responding to COVID-19, as well as the challenges they face.  A prosecutor’s obligation to keep the community safe extends behind prison gates and with this fast-moving virus, prosecutors and other leaders must act now to protect the health and safety of those who are incarcerated and the entire community.

COVID-19 and Mass Incarceration: Crisis at a Glance

COVID-19 and Mass Incarceration: Innovations and Solutions at a Glance

COVID-19 and Mass Incarceration: Voices from Inside

COVID-19 and Mass Incarceration: Key Resources

April 17, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Additional COVID-influenced grants of federal sentence reductions using § 3582(c)(1)(A)

I am pleased to be able to report that I have found this week on Westlaw a good number of COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).  I just have enough time this morning to list all the rulings here.

Samy v. United States, No. No. 16-20610-1, 2020 WL 1888842 (ED Mich Apr. 16, 2020)

United States v. Hammond, No. 02-294 (BAH), 2020 WL 1891980 (DDC Apr. 16, 2020)

United States v. Coker, No. 3:14-CR-085, 2020 WL 1877800 (ED Tenn. Apr. 15, 2020)

United States v. Cosgrove, No. CR15-230-RSM, 2020 WL 1875509 (WD Wash. Apr. 15, 2020)

United States v. Kataev, No. 16 Cr. 763-05 (LGS) 2020 WL 1862685 (SDNY Apr. 14, 2020) 

United States v. Wen, No. 6:17-CR-06173, 2020 WL 1820520 (WDNY Apr. 13, 2020) 

United States v. Smith, No. 12 Cr. 133 (JFK), 2020 WL 1849748 (SDNY Apr. 13, 2020) 

United States v Ben-Yhwh, No. 15-00830 LEK, 2020 WL 1874125 (D. Hawaii Apr. 13, 2020)

United States v. Tran, No. CR 08-00197-DOC, 2020 WL 1820520 (CD Cal. Apr. 10, 2020)

United States v. Burrill, No. 17-cr-00491-RS-1, 2020 WL 1846788 (ND Cal. Apr. 10, 2020)

As I have said before, I am fairly confident that this list does not represent all, and I suspect it does not even capture most, of the sentence reductions that have been granted by federal district courts over the past week.  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:

UPDATE: I noticed this afternoon a couple of useful press pieces discussing  some of this litigation as it is playing out in federal courts:

From Forbes, "Federal Prosecutors Across The Country Oppose Many Common Sense Motions For Compassionate Release"

From Law360, "Inmates Seeking COVID-19 Release Face Uneven Legal Terrain"

April 17, 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)

April 16, 2020

Michael Cohen reportedly among those being moved by feds from prison to home confinement

This new CNN piece reports that the "federal Bureau of Prisons has notified Michael Cohen, President Donald Trump's former personal attorney, that he will be released early from prison due to the coronavirus pandemic, according to people familiar with the matter and his lawyer."  Here is more:

Cohen is serving a three-year sentence at the federal prison camp in Otisville, NY, where 14 inmates and seven staff members at the complex have tested positive for the virus. Cohen was scheduled for release in November 2021, but he will be allowed to serve the remainder of his sentence from home confinement, the people said.  He will have to undergo a 14-day quarantine at the prison camp before he is released.

Cohen was notified on Thursday of his pending release, and his lawyer, Roger Adler, confirmed it to CNN.  His pending release comes as the Bureau of Prisons, which has been under pressure for its early handling of the virus at its facilities, has been thinning out its prison populations by releasing some nonviolent and medically vulnerable inmates to home confinement or furloughing their sentences in response to the pandemic....

Cohen's pending release comes after a federal judge rejected his request last month. At the time Cohen accused the Justice Department of not treating him fairly and later added his concerns about the virus.

Cohen pleaded guilty in 2018 to tax fraud, campaign finance violations and lying to Congress. He admitted to helping facilitate hush money payments to two women who alleged past affairs with Trump. Trump has denied having affairs with the women. When pleading guilty, Cohen implicated Trump, telling a federal judge that he had made the payments "in coordination with and at the direction of" Trump, who prosecutors identified in court filings as "Individual 1."

I had heard some talk today that a whole lot of folks were to be moved out of the federal prison camp in Otisville, and this Cohen story suggests as much.  BOP's COVID-19 Update page reports that, as of April 16, "the BOP has placed an additional 1,198 inmates on home confinement."  

Prior Michael Cohen posts:

April 16, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Brennan Center and other reform group urge Attorney General Barr to do more to "stop the spread of the novel coronavirus behind bars"

I just saw this new letter addressed to Attorney General William Barr coming from the Brennan Center for Justice and other leading criminal justice reform groups on the topic of "Expanding BOP’s Response to the Novel Coronavirus, and Helping States Safely Reduce their Prison Populations." Here is how the seven-page letter gets started:

We write to ask that the Department of Justice (“DOJ”) take a leadership role in helping the nation’s criminal justice systems adapt to the challenges presented by the novel coronavirus.

America’s prisons and jails present unique health dangers, and are especially vulnerable to the spread of infectious disease — problems that the outbreak of the novel coronavirus throw into sharp relief.  Absent additional interventions, COVID-19 will continue spreading through incarcerated populations, and our nation’s correctional officers and staff, at an alarming rate.

We thank you for the steps you have taken to respond to this crisis, including expanding the use of home confinement by the Bureau of Prisons (“BOP”).  As you acknowledge, the BOP has a “profound obligation to protect the health and safety of all inmates” requires nothing less.  Yet more must be done to stop the spread of the novel coronavirus behind bars.  Even if the BOP’s recent lockdown slows transmission among people who remain imprisoned in its facilities, it will also stretch tensions behind bars even further. And, correctional administrators nationwide face similar pressures.

We therefore urge you to take two important steps.  First, we ask that you expand the use of home confinement even further, as detailed below.

Second, the DOJ can encourage states to respond more proactively to this crisis.  We therefore ask that you circulate a “Dear Colleague” letter among state criminal justice stakeholders — including governors, prosecutors, judges, correctional administrators, and public defenders — urging them to work together to adopt policies to limit the virus’s impact.  Those policies should include (1) releasing people from prison who do not pose a public safety threat, thus decreasing population density and viral transmission risk; and (2) improving health behind bars by making hygiene products and medical services broadly available.  This guidance would underscore the federal government’s commitment to zealously confronting a threat to the wellbeing of imprisoned people and those who work in correctional institutions nationwide.

We explain both proposals below. Thank you for your attention to this important matter.

April 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

"Recommendations for Rapid Release and Reentry During the COVID-19 Pandemic"

The title of this post is the title of this short new report from NYU's Marron Institute of Urban Management focused on early releases and community supervision. Here is how it gets started:

People who live and work in jails, prisons, and detention facilities are at elevated risk for SARSCoV-2 infection, due to close living environments and the high prevalence of pre-existing health conditions.  Agencies will be forced, through executive direction, litigation, or necessity (due to rising infections, lack of staff, or medical capacity) to release people in their custody early and to fast-track their usual reentry processes and services.  Jails and prisons are beginning to release people.  They will need to release many thousands more, or many may die.

The Litmus program at the NYU Marron Institute was working on early release from prison prior to COVID-19.  In December 2019, the team completed a three-year pilot project (called Graduated Reintegration) that entailed releasing prisoners six months prior to their earned-release date, paired with substantial community supports, in collaboration with the Illinois Department of Corrections.  A great deal was learned about early release from prison from this work, including the mechanisms that can allow early release and the challenges reentrants face.  Many states will need to consider early release to reduce the density of their prison populations to lower the risk of COVID-19 spread, which makes the NYU Marron team’s experience of doing this in practice highly relevant.

Since early March 2020, Litmus has been working with justice agencies nationwide to learn how corrections (jails and prisons) and community corrections (probation and parole) are responding to COVID-19.  Over a four-week period, the team hosted five protocol-sharing sessions (including over 100 criminal justice system practitioners, from over twenty states).  These sessions have yielded early insights into what agencies are doing (and not doing!) to curb the spread among these vulnerable groups—justice-involved people and public-safety officers, court officers, and mental health/drug treatment providers.

Prisoners who are released will face unprecedented challenges presented by COVID-19, including obtaining necessities such as food and shelter, accessing healthcare and behavioral healthcare, and entering a job market with historically high unemployment.  Scattershot approaches to releasing prisoners, without substantial accompanying supports, will diminish prospects for succeeding in the community and may undermine future criminal justice reform efforts.

The assumptions and recommendations outlined below draw on the lessons we learned from our early-release pilot in Illinois and from practitioners who have attended our protocol-sharing sessions.  They provide guidance to agencies supporting rapid release from incarceration and community reentry in response to COVID-19 and, in the foreseeable future, facing budget shortfall.

April 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Troubling stories continuing to emerge from federal prisons

BOP's COVID-19 Update page reports that, as of April 15, "there are 449 federal inmates and 280 BOP staff who have confirmed positive test results for COVID-19 nationwide ... [and] 16 federal inmate deaths."  If these numbers alone are not troublesome enough, these recent stories make the current reality of federal prisons seem even more grim and worrisome:

From AP, "Justice Dept. watchdog to inspect prisons amid virus spread"

From Cleveland Scene, "Three More Inmates Have Died of COVID-19 This Week at Elkton Federal Prison Since ACLU Asked Courts for Help"

From Forbes, "Federal Bureau Of Prisons Institutions Not Showing Any Signs Of 'Flattening Curve'"

From The Intercept, "As Virus Spreads In Federal Prisons, People Inside Describe Chaos, While Families Are Left In The Dark"

From KATV, "'It's like Mad Max in here': Arkansas inmate says conditions woeful amid outbreak"

From Law360, "Mass. Federal Prison A COVID-19 'Powder Keg,' Suit Claims"

If one is eager to find any silver lining within these dark clouds, BOP is reporting that over a thousand federal prisoners have been moved into home confinement over the last three weeks: "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 1119 inmates on home confinement."  In addition, a Politico story provides some not awful news, "Federal prisons make inmate calling, video visits free during pandemic" (although I find it disconcerting that only amidst a pandemic can prisoners communicate with their family without being subject to fees they likely cannot reasonably afford).

UPDATEBecause of the move of many persons into home confinement and also likely because of fewer people starting their federal prison terms, the federal prison population as reported here by BOP is now on April 16, 2020 down to "172,349 Total Federal Inmates."  Last week, as discussed in this post, BOP was reporting the number was 173,686 inmates.   (I predicted in my prior post that we might get below 170,000 before the end of the month, but I am less sure upon hearing addition reports about the dynamics of the home confinement process.)

April 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (3)

April 15, 2020

Two notable new § 3582(c)(1)(A) sentence reductions to remedy extreme stacked 924(c) sentences reformed by FIRST STEP Act

As long-time readers know, in the pre-COVID world, I made much of the FIRST STEP Act provision now allowing 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.  In our current COVID world, many more sentencing reduction motions are being brought by federal prisons based on the distinct health threat the virus poses.  As highlighted by posts here and here and here, I have lately been assembling some of the COVID-based sentence reduction rulings. 

As I reviewed on Westlaw today recent rulings, I was pleased two great new district court rulings using § 3582(c)(1)(A) as a means to undo the now-repealed harshness of severe stacking of mandatory minimum 924(c) counts.  Both rulings deserve to be read in full in order (a) to take in the ridiculousness and injustice of (post-trial) sentences that had to be imposed by judges under mandatory sentencing provisions, and (b) to appreciate how the FIRST STEP Act has help restore at least a little sanity and justice in this dark part of the federal sentencing world.

To begin, the first case in Westlaw appears as US v. Defendant, but I think is should be US v. Wade, No. 2:99-CR-00257-CAS, 2020 WL 1864906 (CD Cal. Apr. 13, 2020). Here is some of the backstory and parts of the analysis (with most cites removed):

In 1997, Wade was 34 years old and the single parent of three children working at a K-Mart in Los Angeles.  Knowing that Wade's employment gave her insights into the standard layout and operation of K-Mart stores, and that Wade was struggling financially, a “friend” (and future codefendant) approached Wade with the proposition that she help several other individuals rob K-Mart stores and share in the proceeds.  “Out of desperation” and “guaranteed that no one would get hurt” Wade accepted the proposition.  The ensuing five armed robberies were serious, but Wade's involvement was limited....In total, Wade and her co-defendants stole $189,998 from K-Mart. Wade never brandished a gun, and never entered any of the targeted K-Mart stores except the first one, where she worked and posed as a victim. No K-Mart employees reported any injuries.

On August 19, 1999, a jury found Wade guilty on all counts. Although she did not personally possess, use, or carry a firearm during any of the robberies, Wade was convicted on the § 924(c) counts as a coconspirator pursuant to Pinkerton v. United States, 328 U.S. 640 (1946). On December 21, 1999, the Honorable Lourdes G. Baird sentenced Wade to 877 months (or 73 years and one month) of imprisonment, plus 36 months of supervised release. The vast majority of that prison sentence — 780 months (or 65 years) — resulted from the four “stacked” mandatory minimum consecutive sentences under § 924(c)....

Although it is clear that Wade's rehabilitation alone would not qualify her for a sentence reduction as a matter of law, see 18 U.S.C. § 994(t), the Court concludes that the combination of factors raised by her motion establishes extraordinary and compelling conditions that do.... A number of other district courts .... have also found that the drastic reduction in § 924(c) sentences with its elimination of stacking ... in combination with other circumstances may warrant a modification of the defendant's sentence.

In 1999, Wade received a mandatory-minimum sentence — one amounting to life in prison — that Congress has since determined to be exceedingly inhumane and profoundly unfair. But instead of dwelling on that injustice, Wade has spent the past 20-plus years serving her sentence as a recognized example to her peers, and as a model for what rehabilitative programming can achieve for incarcerated individuals who strive for self-improvement.

The backstory in the other case US v. McPherson, No. CR94-5708RJB, 2020 WL 1862596 (WD Wash. Apr. 14, 2020), is not fully developed and may not be quite so compelling.  But some of the court's language certainly is:

In October 1995, Defendant, age 57, was sentenced to 392 months (32.6 years) in prison upon convictions after jury trial... Defendant’s co-defendant Wilson was sentenced to 170 months (about 14 years) following pleas of guilty under the terms of a plea agreement....

In considering the government’s argument — that the non-retroactivity law in the First Step Act purposely left this defendant’s sentence in place — we need to look at all the laws, including 18 U.S.C. § 3582(c)(1)(A), together.  Section 3582 (c )(1)(A) provides a safety valve against what otherwise would be a harsh, unjust, and unfair result stemming from a non-retroactivity clause.

So we have here Mr. McPherson, sentenced to over 32 years in prison for what is now probably a 17-year crime.  His sentence was 15 years beyond what is now deemed a fair penalty by our law, and he has already served 26 years of that now clearly unfair sentence.  It is extraordinary that a civilized society can allow this to happen to someone who, by all accounts, has long since learned his lesson.

Some (of many) prior related posts:

April 15, 2020 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Ensuring Justice and Public Safety: Federal Criminal Justice Priorities for 2020 and Beyond"

2020_04_LEL_Policy_Report_Final_Page_01-717x1024The title of this post is the title of this notable new report released today by the group Law Enforcement Leaders to Reduce Crime & Incarceration.  The report appears to have been written mostly pre-COVID, but its Forward contextualizes the report for our current times:

While we were finalizing the policy recommendations in this report, our country began battling an unprecedented health crisis.  The coronavirus pandemic has shined a spotlight on the size of America’s incarcerated and justice-involved population, illuminating both the extreme vulnerability of those held behind bars and how our prison population impacts our broader communities.  This public health emergency has required politicians and those who manage our criminal justice systems to rapidly reevaluate how many of those who are incarcerated can be safely released, how police and prosecutors can best serve their communities, and how to safely reduce the size of the justice system overall.

Even before the outbreak, the United States stood at a crossroads on criminal justice reform.  While some of our leaders have continued to use fear of crime to advocate for policy, many advocates, policymakers, and law enforcement officials from all parts of the country — and across the political spectrum — have realized that certain tough-on-crime policies of the 1990s and 2000s led to unintended consequences, such as the unnecessary incarceration of thousands, high rates of recidivism, and decreased confidence in law enforcement.  Ultimately, these challenges risk making our communities, including our law enforcement and correctional officers, less safe.

It was against this backdrop that the First Step Act became law in December 2018.  The law provided needed sentencing reform on the federal level and recognized that federal prisons should better promote rehabilitation and successful reentry for the tens of thousands of people who are released from federal custody each year. These ideas are not new, but the bipartisan effort that led to this significant legislation signaled that the country is ready to reexamine its approach to crime and punishment.

As law enforcement veterans who have dedicated our lives and careers to protecting public safety at every level of local, state, and federal government, we are now working to envision a criminal justice system that is fairer and more just while keeping crime low.  Our generation of law enforcement leaders helped to cut the violent crime rate to less than half of its peak in 1991, and we are committed to keeping it down. But we must be smart about it.  Decades of law enforcement experience, and the study and implementation of innovative programs around the country, have convinced us that crime policies that rely primarily on arrest, jail, and prison are ineffective to ensure public safety.

Members of our group have been at the forefront of various reform efforts for decades.  We have tried and tested numerous strategies and programs — such as community and problem-oriented policing, focused violence deterrence, pre-arrest diversion programs, increased access to mental health and drug treatment, and alternatives to incarceration — that reduce unnecessary incarceration while keeping our communities safe.  Many of our members are also leading the way on how to best reduce the size of the incarcerated population as we struggle to fight the coronavirus outbreak.  Yet implementing and maintaining high-quality strategies that will reverse the tide of unnecessary incarceration for the long term requires unwavering focus — and funding.

If we are serious as a society about rooting out the causes of our overreliance on the criminal justice system, the federal government has a significant role to play.  It is uniquely poised to provide key leadership by making reforms at the federal level and to incentivize local lawmakers to implement innovative and groundbreaking work across the country. Congress and the president can be powerful allies in this effort.  We seek to continue working together with leaders of the legislative and executive branches to shape the national consensus, pass legislation, and steer federal dollars toward programs that encourage safer, healthier communities.  To be sure, with thousands of police departments and prosecutors working to keep their communities safe, law enforcement is necessarily a very local concern. Each community must address its own crime problems and challenges. But it is critical that the federal government support these local efforts while providing leadership on how the criminal justice system can drive down crime without causing undue harm to communities.  Our experience has taught us that jail or prison need not be the automatic response for every broken law.  The research backs it up: for many nonviolent and first-time offenders, jail or prison is unnecessary for public safety and can endanger our communities in the long term, while causing harm to individuals and families.  To counter this, it is essential that we identify policies that direct away from the criminal justice system those who are mentally ill or have an addiction and that we reduce recidivism. This will position us to focus our resources on individuals who commit violent crimes while helping to restore community trust in law enforcement.

We urge Congress and the administration to carefully consider a range of strategies to promote public safety in the face of this unprecedented epidemic and, in the long term, to help ensure justice for local communities.  With those goals in mind, this report offers specific policy recommendations in each of five areas:

  • Reducing unnecessary incarceration
  • Increasing mental health and drug treatment
  • Bolstering community policing
  • Improving juvenile justice
  • Preserving and expanding recidivism reduction

Implementation of and funding for our recommendations will help to forge a path toward our common goal of a safer nation.  Congress and the administration should seize the moment for criminal justice reform and lead the way forward to create policies that reduce unnecessary incarceration now and will keep jail and prison population levels low in the long term.  The policies and the programs we propose should be the next steps for improving our systems of justice.

April 15, 2020 in Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Catching up on lots of new recent (COVID-free) sentencing and punishment scholarship

As I have been consumed with COVID criminal justice issues over the last month, I have fallen behind in spotlighting new sentencing and punishment scholarship that has been posted to SSRN. I will seek to catch up for lost time with this lengthy post linking to a lot of the newer (but non-COVID) postings in alphabetical order:

Actuarial Risk Assessment at Sentencing: Potential Consequences for Mass Incarceration and Legitimacy by Michael M. O'Hear

Athenian Forgiveness, American Erinyes: The Brutality of American Capital Punishment by Michael Shammas

Categorical Nonuniformity by Sheldon Evans

(De)carceral Jail Administration by Aaron Littman

Gundy and the Civil-Criminal Divide by Jenny Roberts

(How Much) Do Mandatory Minimums Matter? by Stephanie Holmes Didwania

How Much is Too Much? A Test to Protect Against Excessive Fines by Daniel Harawa

Life Without Parole as Death Without Dignity by Brittany Deitch

Life Without Parole Sentencing by Brandon L. Garrett, Karima Modjadidi, Kristen Renberg and Travis Seale-Carlisle

Long-Term Incarceration and the Moral Limits of Punishment by Jacob Bronsther

Place, Race, and Variations in Federal Criminal Justice Practices by Mona Lynch

Supreme Court Clerks and the Death Penalty by Matthew Tokson

The Uncertain Future of Felon Disenfranchisement by Bruce E. Cain and Brett Parker

The Washington State Second Chance Expungement Gap by Colleen V. Chien, Zuyan Huang, Jacob Kuykendall and Katie Rabago

April 15, 2020 in Recommended reading | Permalink | Comments (0)

April 14, 2020

"Governors Must Use Clemency Powers to Slow the Pandemic"

The title of this post is the title of this new memorandum from Courtney Oliva and Ben Notterman. Here is how it gets started:

Nearly 3 in 4 Americans have now been ordered to stay home and remain indoors, while many states have ordered non-essential businesses to shutter.  These steps may seem drastic, but they are being taken in order to safeguard public health during the COVID-19 pandemic.  Government actors who are truly serious about protecting people must take comprehensive and coordinated action to combat the spread of the virus.  This means acknowledging and explicitly considering the health risks of vulnerable populations — including people serving sentences in state prisons — when crafting and implementing gubernatorial responses to reduce the risk of transmission.

Jails and prisons are unable to comply with CDC hygiene standards and are accelerating the pandemic.  People who are incarcerated are more likely to have chronic health conditions than the general public.  Likewise, the percentage of people age 55 or older in state prisons has more than tripled between 2000 and 2016.  Incarceration also has negative “knock on” effects.  Incarcerated people tend to age faster than the general population, and their physiological age outpaces their chronological age by anywhere from 7 to 10 years.

In some states, local government actors have responded to the growing threat of COVID-19 by taking steps to reduce jail populations and to limit the number of people being admitted to jails.  Police departments are also adjusting by issuing citation and misdemeanor summons for certain offenses.  But while local government officials have begun tackling the risk that jail populations pose, little movement has occurred to reduce prison populations and the attendant risk of transmission of COVID-19 to people serving sentences in prisons, prison employees, their families, and their communities.

If states are serious about preventing the spread of COVID-19, they must take immediate action to reduce the number of people in state prisons. While every state’s mechanisms will differ according to constitutional and statutory provisions, there are a number of actions that state actors — including governors — can take.

See Appendix for a state-by-state overview of these legal mechanisms.

April 14, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Split Eleventh Circuit panel rules Jeffrey Epstein's victims had no rights under federal CVRA before any complaint or indictment

A divided Eleventh Circuit panel today handed down a very long opinion on an very interesting issue concerning the rights of victims of a very high profile (and now very dead) federal defendant. The opinion for the court authored by Judge Newsom in In re Courtney Wild, No. 9:08-cv-80736-KAM (11th Cir. April 14, 2020) (available here), gets started this way:

This case, which is before us on a petition for writ of mandamus, arises out of a civil suit filed under the Crime Victims’ Rights Act of 2004.  Petitioner Courtney Wild is one of more than 30 women — girls, really — who were victimized by notorious sex trafficker and child abuser Jeffrey Epstein.  In her petition, Ms. Wild alleges that when federal prosecutors secretly negotiated and entered into a non-prosecution agreement with Epstein in 2007, they violated her rights under the CVRA — in particular, her rights to confer with the government’s lawyers and to be treated fairly by them.

Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark — and, so it seems, affirmatively misled — by government lawyers, we find ourselves constrained to deny her petition.  We hold that at least as matters currently stand — which is to say at least as the CVRA is currently written — rights under the Act do not attach until criminal proceedings have been initiated against a defendant, either by complaint, information, or indictment.  Because the government never filed charges or otherwise commenced criminal proceedings against Epstein, the CVRA was never triggered.  It’s not a result we like, but it’s the result we think the law requires.

Judge Hull issued a near 60-page dissenting opinion (roughly matching the length of the majority opinion). Here is are key passages from its opening:

This appeal presents legal questions of first impression in this Circuit regarding the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, which grants a statutory “bill of rights” to crime victims.  In my view, the Majority patently errs in holding, as a matter of law, that the crime victims of Jeffrey Epstein and his co-conspirators had no statutory rights whatsoever under the CVRA.  Instead, our Court should enforce the plain and unambiguous text of the CVRA and hold that the victims had two CVRA rights — the right to confer with the government’s attorney and the right to be treated fairly — that were repeatedly violated by the U.S. Attorney’s Office in the Southern District of Florida....

I dissent because the plain and unambiguous text of the CVRA does not include this post-indictment temporal restriction that the Majority adds to the statute.  Although, as I discuss later, the two rights provisions at issue include other limiting principles, there is no textual basis for the bright-line, post-indictment only restriction the Majority adds to the statute.  Rather, the Majority’s contorted statutory interpretation materially revises the statute’s plain text and guts victims’ rights under the CVRA.  Nothing, and I mean nothing, in the CVRA’s plain text requires the Majority’s result.

It will now be very interesting to see if this this matter gets further attention from either the full Eleventh Circuit and/or the US Supreme Court.

April 14, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2)

Noticing ever-growing number of states with an ever-growing number of prisoner and prison staff deaths due to COVID-19

Six week ago, via this post, I first flagged how the looming threat of the coronavirus could be especially worrisome for incarcerated populations and workers at jails and prisons.  A few weeks later, starting with posts here and here, I began flagging new reports of prisoners and staffers testing positive for COVID-19 in multiple states.  And, earlier this month via this post, I started noting the start of the (all-too-predictable) next stage of this pubic health tragedy in the form of multiple reports from multiple location of prisoners and staff dying from COVID-19.  Today, perhaps due to a recent death in an Ohio state facility, I feel compelled to do another review of headlines documenting this ever-expanding tragic reality in ever-more states:

California: "Member of L.A. jail nursing staff who died had coronavirus"

Connecticut: "First incarcerated person dies as COVID-19 spikes behind bars"

Georgia: "Second Lee St. Prison inmate dies of COVID-19"

Illinois: "Coronavirus update: 5 deaths now reported at Stateville Prison"

Louisiana: "DOC confirms Angola staff member died from COVID-19-related complications"

Maryland: "Inmate Dies as COVID-19 Cases in MD Correctional Facilities Rise"

Michigan: "3 more Michigan prison inmates die from COVID-19"

Mississippi: "Mississippi inmate who died tested positive for COVID-19"

New Jersey: "Veteran N.J. corrections officer, father of 3, dies from coronavirus at 44"

New York: "Second Rikers Island inmate dead from coronavirus after failed release"

Ohio: "Pickaway Correctional inmate becomes first state inmate to die after testing positive for COVID-19"

Pennsylvania: "Pennsylvania prisons report first inmate death of coronavirus; two more Northampton County Jail inmates test positive"

Texas: "Texas prison guard dies after being hospitalized with COVID-19"

Virgina: "Female Inmate Is Virginia Prisons’ First Coronavirus Death"

Washington DC: "DC Jail inmate dies after testing positive for the coronavirus"

April 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

US Sentencing Commission released new report on "Path of Federal Criminality: Mobility and Criminal History"

Cover_mobilityI find it more than a little ironic and depressing that the US Sentencing Commission, amidst a viral pandemic requiring lockdowns for everyone and creating unique risks for inmates who are confined with so many others, has today released a new research report with "mobility" in its title.  Tone-deaf timing aside, this new report serves as another interesting bit of criminal history research being done by an agency that has been functionally crippled for now the better part of two years because of the lack of confirmed commissioners. 

Though I keep hoping the USSC might step up to the current moment with some real-time data on federal sentencing practices and outcomes during this remarkable moment, I suppose we should all still be grateful that the USSC staff is still able to get its regular work done.  This latest report is focused on interesting aspects of past state convictions for federal offenders, and here is how it is summarized on the USSC's website:


(Published Aprill 14, 2020)  This study expands on prior Commission research by examining the geographic mobility of federal offenders. For this report, mobility is defined as having convictions in multiple states, including the location of the conviction for the instant offense. This report adds to the existing literature on offender criminal history in two important ways. First, the report provides information on how mobile federal offenders are, as measured by the number of offenders with convictions in multiple states. Second, the report provides information on the proportion of offenders with convictions in states other than the state in which the offender was convicted for the instant offense. The report also examines the degree to which out-of-state convictions in offenders’ criminal histories contributed to their criminal history score and their Criminal History Category.

Key Findings
  • Almost one-third (30.0%) of the total federal offender population in fiscal year (FY) 2018 had convictions in more than one state.
  • The mobility of federal offenders varies by offender characteristics:
    • Immigration offenders were the most likely to have convictions in more than one state (38.7%), while child pornography offenders were the least likely (16.4%) to have convictions in more than one state.
    • Just under one-third (31.8%) of male offenders had convictions in two or more states compared to 17.8 percent of female offenders.
    • Hispanic offenders (31.0%) were the most likely to have convictions in more than one state, closely followed by White (29.3%), Black (28.5%) and Other race (27.8%) offenders.
  • The percentage of offenders having convictions in states other than the state of their instant offense varied from a high of 59.2 percent in North Dakota to a low of 10.5 percent in the territory of Puerto Rico.
  • A total of 13,904 FY 2018 offenders had out-of-state convictions that received criminal history points. Almost three-quarters of these offenders (73.9%) had a higher Criminal History Category due to these convictions.

April 14, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

"Documenting the Challenges (and Documents) as Ohio Courts Respond to COVID-19"

The title of this post is the title of this new short report posted to SSRN produced by folks (including me) at the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law.  The report is focused on general court orders, but it highlights how these orders mostly fail to focus on reducing incarcerated populations at the time of a pandemic.  Here is the abstract:

As the coronavirus led to the vast majority of Americans living under stay-at-home orders, government institutions confronted a public health imperative to slow the spread of a communicable disease while still maintaining vital services for their constituents.  Judicial branches of governments faced particular challenges given the traditional face-to-face and often time-sensitive nature of their work.  Further, while governors can generally exercise centralized control over many parts of the executive branch of government, the judicial function in many states does not operate under a single chief administrator.  Ohio represents one such non-unified court system, and this research project sought to review and summarize the formal responses of Ohio courts in the weeks during which the state began shutting down non-essential services in response to the COVID pandemic.  This review reveals considerable formal action in service of minimizing physical appearances at court, but also highlights that relatively few court orders included express provisions aimed at decreasing the number of people entering prisons or authorizing proactive steps to release people from detention.

April 14, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

April 13, 2020

Latest BOP numbers with still more COVID cases, and more prisoner deaths, at still more federal facilities

This post from last Monday noted that the data set forth on BOP's COVID-19 Update page in the early evening of April 6 reported 196 inmates and 63 staffers positive for COVID-19.  Though not then reported by BOP, there were I believe five or six official prisoner deaths as of this time last week.  Now, just a week later, here is the BOP's official accounting:

As of 04/13/2020, there are 388 federal inmates and 201 BOP staff who have confirmed positive test results for COVID-19 nationwide.  Currently, 19 inmates and 12 staff have recovered.  There have been 13 federal inmate deaths and 0 BOP staff member deaths attributed to COVID-19 disease.   

40 BOP facilities and 9 RRCs affected nationwide.

I fear even these official numbers are likely to continue to get worse in the days ahead, and press reports suggest that I suspect the "real" numbers are worse still.

To provide some context for these number, consider that the federal inmate population is "only" 175,000, and yet there are already 13 official COVID deaths within the federal inmate population.  This is more COVID deaths than are being reported right now by the Worldometer accounting in seven distinct US states: Wyoming (population nearly 600,000), Alaska (nearly 750,000), North Dakota (nearly 800,000), South Dakota (nearly 900,000), Montana (over 1 million), Hawaii (nearly 1.5 million), and West Virginia (population nearly 1.8 million).  This is also more COVID deaths than are reported right now by the Worldometer accounting in countries such as Qatar (population nearly 3 million), New Zealand (nearly 5 million), Slovakia (nearly 5.5 million) Singapore (over 5.5 million).

April 13, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Highlighting data showing why it is safe to consider all persons for release when prisons are so dangerous

Building on their recently published recidivism research, J.J. Prescott, Benjamin Pyle and Sonja Starr have this notable new Slate piece headlined "It’s Time to Start Releasing Some Prisoners With Violent Records."  I recommend the piece in full, and here are excerpts:

Prisons and jails are fast becoming an epicenter of the COVID-19 pandemic . Last week, for instance, the New York Times reported that Cook County jail was “now the nation’s largest-known source of coronavirus infections.”  After far too much lost time, some governors and criminal justice officials are finally trying to mitigate the damage by releasing inmates or transferring them to home confinement.

To succeed, these steps must extend to prisoners with violent records.  This should be obvious based on sheer numbers.  People with violent convictions make up a majority of the total state prison population.  Because sentences for violent crimes are longer, they make up an even larger percentage of the older detainees most vulnerable to COVID-19: about two out of every three prisoners over age 55.

So far, this reality is being ignored.  Efforts to move people out of prisons and jails have mainly focused on the lowest-hanging fruit: those detained for inability to pay bail, technical parole violations, minor misdemeanors, and the like. Almost all these measures have excluded people convicted of violent crimes.  Many prepandemic criminal justice reforms have also focused on nonviolent offenders only, so we shouldn’t be surprised.  For many, people with violent convictions seem dangerous, and the idea of granting them any kind of relief is simply anathema.

But how dangerous is it to release prisoners with violent records?  We recently carried out an empirical study using post-release crime data on hundreds of thousands of such prisoners.  We found that it is much less dangerous than you probably think.  And during this pandemic, we can add, it seems doubtless much less dangerous than keeping them behind bars.

Our study found that among those released after serving a sentence for a violent crime, about one of every 10 releasees was sent back to prison for any new crime within the next three years. Only one of every 20 had another violent crime in three years.  In fact, re-offense rates have been consistently shown to be lower for people released after serving sentences for violent crimes than those released for nonviolent crimes.

Crime rates are even lower if you look at older prisoners — the ones most seriously threatened by COVID-19.  We looked at more than 7,000 individuals over age 55 who had served at least five years in state prisons for a violent offense.  Fewer than 1 percent of such individuals were re-incarcerated for any new crime in the three years after release, and fewer than 0.5 percent for another violent crime.

Our study was bigger and more recent than most, but our findings are consistent with the patterns we found in a comprehensive review of the literature.  Moreover, all those low re-offense rates were for normal releases from prison into society.  But “releases” now need not simply mean flinging open the prison gates indiscriminately. It could mean temporary transfers to home confinement for the duration of the emergency.  Protective measures like electronic monitors are also available....

Of course, at many prisons there could be some individuals who really are so dangerous that they cannot be safely released, even to home confinement.  But the data tell us that such cases are likely to be relatively few, and officials should be required to identify them based on clear evidence.  It certainly shouldn’t be assumed to be true of all who have violent convictions.  And once as many people as possible have been removed from facilities, it will be easier to practice social distancing among those who remain.

Are crime rates among those released likely to be zero?  No — but they should be close to it.  The stakes of doing nothing, though, have never been higher.  Categorically refusing to remove violent offenders from these virus hotbeds does not protect public safety. It endangers it....  COVID behind bars threatens everyone outside too.  Staff — and some detainees — come and go daily.  Some will bring COVID in with them, and after it has spread, much larger numbers will take it out.  Plus, sick prisoners will have to be moved to local hospitals, competing for scarce resources.

Prisons and jails are like concerts, conferences, and cruise ships: places where crowds in confined spaces can spread the virus to many, many people fast.  But unlike these other sites, they won’t be shut down.  So COVID outbreaks behind bars threaten our entire society’s ability to control the pandemic and return to normal life....

The COVID-19 situation in prisons is a moral test that, so far, our society is failing.  Even when our own safety is at stake, we make knee-jerk assumptions about people who once committed a violent crime: that they cannot ever reform.  These assumptions are not borne out by data.  And right now, they are blinding us to what is needed to protect all of us.

The new empirical study referenced in this piece is titled "Understanding Violent-Crime Recidivism" and is available at this link via SSRN.  Here is the piece's abstract:

People convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration.  Serious efforts to shrink the large footprint of the prison system will need to recognize this fact.  This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic.  Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars.  Excluding them from protective measures will deeply undermine those measures’ effectiveness — and yet many governors and officials have hesitated due to fears of violent-crime recidivism.  In addition, the population imprisoned for violent offenses also exhibits sharper demographic disparities than the general prison population across both age and race.  Consequently, reforms that target those convicted only of nonviolent crimes will likely exacerbate existing inequalities in the criminal justice system.

In this Article, we start from the premise that better understanding individuals convicted of violent crimes is essential to overcoming resistance to the idea of releasing them earlier — and in particular, to address the fear that this population will almost certainly reoffend violently.  We review existing studies and offer new empirical analysis to inform these questions.  Although estimates vary, our synthesis of the available evidence suggests that released violent offenders, especially homicide offenders who are older at release, have lower overall recidivism rates relative to other released offenders.  At the same time, people released after previous homicide convictions may be more likely to commit new homicides than otherwise comparable releasees, although probably not by as much as most would expect.

April 13, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Offense Characteristics, Prisons and prisoners | Permalink | Comments (1)

Did you know the US Department of Agriculture contributes to modern mass incarceration?

The question in the title of this post (which I would have answered know) was prompted by this interesting new Hill commentary authored by David Safavian and Bernard Kerik. The piece is headlined "Why is the USDA subsidizing jails at the expense of rural health care?" and here are excerpts:

Every year, the U.S. Department of Agriculture (USDA) provides funding for rural infrastructure through the Community Facilities Direct Loan and Grant Program. According to the USDA, the program was designed to subsidize public health infrastructure such as mental health clinics and hospitals in rural areas. In 1996, however, the USDA added detention centers, resulting in more than $360 million of agriculture funds being used for rural jail construction. The USDA’s funding for jails has increased by 200 percent over the past decade while rural infrastructure spending has been cut by one-third. As a result, health care funding has suffered.

What’s worse is that many new jails are unnecessary given low crime rates. The facilities are larger, on average, than those they replace, creating excess capacity. Some local officials see extra jail cells as revenue opportunities, because federal and state agencies pay per diems to house their detainees....

[S]ubsidizing extra jail capacity creates unintended consequences that are tragically coming into focus as we struggle with the COVID-19 pandemic. As more USDA funds for rural infrastructure have been consumed by jail construction, health care infrastructure has been allowed to wither. There are too few hospital beds, shortages of protective equipment, and medical staff pushed to the brink.

Compounding the problem is that the size of new rural jails increases the likelihood for viral outbreaks. Given the close proximity of detainees, large jails are ideal places for COVID-19 to go unabated. But it’s not just the offenders who become potential victims of the virus. Correctional officers are at risk, as are their families and communities when they leave the jails at the end of their shifts.... With the COVID-19 outbreak, the [USDA] must prioritize rural health infrastructure rather than subsidize oversized and unnecessary jails. If they won’t, Congress and the White House should step in and do it for them.

April 13, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

"Tips For Prisoner Release Requests During Pandemic"

The title of this post is the title of this timely new Law360 piece authored by William Athanas, JD Thomas and Charles Prueter.  Here are excerpts:

This article reviews the legal framework applied to assess compassionate release requests seeking relief based on the pandemic, and endeavors to extract guiding principles from 70 of the decisions issued by federal courts in the past three weeks in an effort to inform eligibility determinations and increase the likelihood of success of future motions....

Defendants began to file motions for compassionate release premised on COVID-19 fears in the third week of March. In reviewing 70 of the orders issued in response to these motions since March 17, it is interesting to note that only one was filed by an inmate actually suffering from the disease. Instead, those seeking relief premised their requests on risk of harm that would result were they to become infected.

A review of decisions issued as of April 10 reveals a number of guiding principles:

  • Exhaustion of administrative remedies is the key factor.  In all but three of the 43 cases where courts denied relief, failure to exhaust administrative remedies was the primary reason given.  In the 24 cases where relief was granted, the defendant was found to have exhausted administrative remedies, or the court determined that an exception to the exhaustion requirement existed.
  • Government consent is an important, but not essential, factor.  To be sure, a defendant’s ability to secure government consent to the motion was valuable.  Compassionate release was granted in all of the cases where the government consented to the relief sought.  But even in the remaining cases where the government objected to the motion, compassionate relief was granted in 13 instances (note that it was unclear whether the government opposed relief in the remaining cases).
  • Types of health conditions matter.  As one would expect, motions filed by inmates with significant respiratory issues were granted most frequently.  Success was not limited to inmates experiencing those conditions, however, as courts also granted compassionate release for those suffering from diabetes, hypertension, Crohn’s disease, and other instances where inmates suffered from chronic conditions which left them immunocompromised.  Note that not all inmates suffering from such conditions have been deemed eligible for relief, however, if they failed to exhaust administrative remedies.
  • Length of sentence remaining was not a determinative factor.  While many of the defendants successful in gaining release had a relatively short amount of time left before completing their sentences, courts have not required deemed that a perquisite.  In fact, of the defendants whose motions have been granted, 10 had a year or more left to serve.
  • Presence of the virus in the facility.  Several courts which granted relief cited this factor as evidence of “extraordinary and compelling reasons,” including one which distinguished cases denying relief on the grounds on the fact those defendants were not housed in facilities where “where COVID-19 was spreading.”  At least half the cases made no mention of this factor, however, suggesting that it is not a necessary prerequisite. In one instance, relief was granted even though the defendant had already been released to a residential reentry center....

The number of compassionate release motions premised on COVID-19 is likely to increase as pandemic worsens in the days and months to come.  Because the law governing evaluation of such motions is so recent, those seeking relief on the basis of “extraordinary and compelling reasons” are well served by understanding which factual scenarios and legal arguments best position those requests for successful outcomes.

Prior recent related posts:

April 13, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

"The Bureau of Prisons must do more to flatten the curve"

The title of this post is the headline of this new Hill commentary authored by Representative Fred Keller (R-PA).  Here are excerpts (links from the original):

As members of Congress from both sides of the aisle have come together in recent weeks to combat COVID-19, one federal agency has failed to do its part to flatten the curve.

Despite calls from a bipartisan group of U.S. senators and House members for all movement of inmates within the Federal Bureau of Prisons (BOP) system to stop during the COVID-19 national emergency, the agency has continued to move inmates between prison facilities nationwide.  In doing so, the Bureau of Prisons is ignoring public health guidelines and putting at risk the health and safety of inmates, corrections officers, their families, and the broader community.

Amid the many difficult stories over the past several weeks related to the COVID-19 pandemic, outbreaks in prisons across the country have been particularly alarming.  To varying degrees, states have addressed the issue more swiftly than others.  Pennsylvania, for instance, immediately put all state-run prisons on quarantine after the first inmate was diagnosed with a confirmed case of COVID-19.  Unfortunately, the Bureau of Prisons has been reluctant to take decisive and preventative measures.

In fact, over the past several weeks, while the rest of the country has been altering our daily routines and pausing our livelihoods to mitigate the spread of COVID-19, the Bureau of Prisons has continued to move inmates across the country.  Pennsylvania’s 12th District is home to two federal prisons: United States Penitentiary Lewisburg and Federal Corrections Complex Allenwood.  Since the beginning of President Donald Trump’s plan to mitigate the spread of COVID-19, both facilities have continued to receive inmates from across the prison system.

Recently, FCC Allenwood received 32 inmates from a facility in Oklahoma City which houses inmates from across the country.  Despite the Bureau of Prisons saying it is adequately screening inmates for COVID-19 before transport, two of the inmates arrived at Allenwood sick.  One inmate’s symptoms were so bad that he was immediately transported to a local hospital and tested for COVID-19.  After several tense days of waiting, the test came back negative.  But this case is a clear indication that the Bureau of Prisons is not taking necessary steps to avoid moving sick inmates.

As the latest count, 438 BOP inmates and corrections officers have been diagnosed with COVID-19.  That’s more cases than the states of Alaska, Wyoming, Montana, and North Dakota.  In northeast Pennsylvania, an inmate at the United States Penitentiary Canaan recently tested positive for COVID-19. In addition, three staff members have tested positive at this rural federal prison.  More recently, a staff member at FCC Allenwood was diagnosed with COVID-19...

[W]hile hotspots within the Bureau of Prisons system continue to increase, the Bureau of Prisons continues to move inmates in and out of facilities across the country, adding stress to an already overwhelmed health care system.  Local hospitals in Pennsylvania’s 12th District recently sent a letter to the Bureau of Prisons outlining how our local health system could be overrun by a large-scale prison outbreak like the one seen in Oakdale.  While these great hospitals have taken necessary steps to prepare for an outbreak in the community, they do not have the capacity to deal with a community outbreak and a prison outbreak.

This is a national problem. I recently held a telephone town hall event with nearly 4,000 constituents and corrections officers from across the country.  Everyone had one clear message: Stop the movement of inmates now.

Last week, I spoke directly to Bureau of Prisons Director Michael Carvajal and asked that he halt inmate transfers.  He told me that, to do so, the law needed to be changed.  So, I introduced legislation to that effect.  The Pausing All New Detention and Ending the Movement of Inmates for Coronavirus (PANDEMIC) Act of 2020 would stop the movement of inmates to and across the Bureau of Prisons system during the COVID-19 national emergency.  I introduced the bill with both Republican and Democrat original co-sponsors and the number of supporters continues to grow.

While I was glad to see the Bureau of Prisons respond to our efforts with an updated COVID-19 action plan that further restricts inmate movement, the new plan does not go far enough. It must immediately halt all inmate movement until the pandemic passes.

I am disappointed that this commentary does not press for more federal prisoners being moved into home confinement, but it is useful to see a clear example of how COVID + NIMBY = criticism of BOP administration and a push for a legislative response.

April 13, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

April 12, 2020

Great coverage of the awful work of SBA disqualifying people with any record from CARES small business loans

The Collateral Consequences Resource Center is doing its usual bang-up job covering the misguided new business problems for people who are burdened with any kind of criminal record.  The context these days, of course, is COVID-related, and here is how the CCRC explains the issue in a recent post:

In the past two weeks we have written at length about the U.S. Small Business Administration (SBA)’s “bumpy guidance on criminal history requirements” for small business financial relief during the COVID-19 pandemic (see also “Applying for an SBA loan with a criminal record“)....  Before the pandemic, the SBA didn’t automatically disqualify people for small business loans based on a past criminal record, and we can’t understand why it would suddenly decide to do so now, when small businesses across the country are struggling to stay afloat.   (Preexisting policy, described here, disqualifies a business if it has a principal who is incarcerated, is under supervision, is facing charges, or lacks “good character.”)  The new SBA policy — which automatically disqualifies even certain people who have completed a diversionary program and were never convicted — seems entirely at odds with the wave of recent state and federal law reforms aimed at encouraging reintegration.

Here is all of CCRC's recent posting on this topic:

April 12, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Still more COVID-influenced grants of sentence reductions using § 3582(c)(1)(A), with waivers of exhaustion/waiting period

I have detailed in posts, here and here and here, a growing number of federal court decisions granting sentence reductions using § 3582(c)(1)(A) based, at least in part, on the "extraordinary and compelling" public health crisis created by COVID-19 (though the procedural issue flagged in this post is leading many motions to be denied for the time being).  When periodically reporting on the sentence reduction orders I find on Westlaw or that get sent to me, I always make the point that I am sure my listing does not represent all the sentence reductions being granted by federal district courts these days.   And, sure enough, a Sunday afternoon check of Westlaw turned up four more recent sentence reduction orders:

United States v. Sawicz, No. 08-cr-287 (ARR), 2020 WL 1815851 (EDNY Apr. 10, 2020) ("The COVID-19 outbreak at FCI Danbury, combined with the fact that the defendant is at risk of suffering severe complications if he were to contract COVID-19 because of his hypertension, justifies waiver here [of the exhaustion/waiting period].... I agree with the defendant that the risk of serious illness or death that he faces in prison constitutes an extraordinary and compelling reason militating in favor of his release.")

United States v. Almonte, No. 3:05-cr-58 (SRU), 2020 WL 1812713 (D. Conn. Apr. 9, 2020) ("[A] combination of factors convinces me that there are extraordinary and compelling reasons to reduce Almonte’s sentence.  Almonte’s medical condition may alone amount to an extraordinary and compelling reason to do so because his cervical myelopathy is a serious physical condition that will soon leave Almonte unable to care for himself in prison. If Almonte does not get the surgery he needs, he will not recover from his condition.  If he remains in BOP’s custody, Almonte will not get the surgery quickly enough. The surgery has already slipped through the cracks for a year and a half, and there is little chance for any improvement, given the rise of COVID-19 and concomitant logistical complications. Further, Almonte’s rehabilitation from his former life of crime has been total, and he has a supportive network of family ready to help him reintegrate into society.  Finally, because of changes in the law that did not affect him, Almonte’s more culpable co-conspirators have been afforded leniency while Almonte has not.")

Miller v. United States, No. 16-20222-1, 2020 WL 1814084 (E.D. Mich. Apr. 9, 2020) ("Both exceptions apply here [to waiver justify of exhaustion/waiting period when] a delay would unduly prejudice Miller....  Miller squarely fits the definition of an individual who has a higher risk of falling severely ill from COVID-19. The CDC also states that individuals with underlying medical conditions, such as a chronic lung disease, a serious heart condition, and liver disease, have a higher risk of severe illness. Id. Miller suffers from all three. Continuing Miller’s incarceration under the current circumstances could be a lethal decision. Therefore, the Court finds that extraordinary and compelling reasons exist for his immediate compassionate release.")

United States v. Gentille, No. 19 Cr. 590 (KPF), 2020 WL 1814158 (SDNY Apr. 9, 2020) ("To its credit, the Government has determined to waive the exhaustion requirement in this case... [The defendant's] remaining term of incarceration is short. And his medical conditions place him at a higher risk for developing serious medical complications were he to contract COVID-19. Gentille and his counsel have also put forward a plan for his reentry into society in a way that is aimed to protect him from exposure to COVID-19.")

Notably, in three of these four decisions, the district court (rightly in my view) concluded that it was not precluded from granting a sentence reduction by the exhaustion/waiting period provision in § 3582(c)(1)(A).  And kudos to prosecutors in Gentille for their decision to expressly waive this requirement so that the court could turn to the merits of the motion at this time of great urgency and uncertainty.

Prior recent related posts:

April 12, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)