« April 19, 2020 - April 25, 2020 | Main | May 3, 2020 - May 9, 2020 »

May 2, 2020

Another day, another set of ugly COVID stories and data emerging from federal prisons

I surmise that federal lawyers are making claims in federal courts around the nation that the Bureau of Prisons are doing a great "expert" job dealing with the COVID pandemic in federal facilities around the nation.  But a quick scan of recent media stories and even BOP's own data suggests a very different story.  First, some headlines:

From CBS News, "No phone or email for nearly 4,000 inmates at three federal prisons in effort to fight virus":

As coronavirus cases surge inside three federal prisons in California, the Bureau of Prisons has instituted stringent measures in an attempt to slow the spread of the virus.  The three institutions — in Lompoc and Terminal Island — have cut off inmates' access to email and phone lines, drawing outrage from families who have not heard from loved ones in nearly two weeks.  CBS News spoke to the friends and families of five inmates who have been impacted by what one person characterized as a "gag order."

From Forbes, "Bureau Of Prisons Locking Up Minimum Security Campers In Higher Security Prisons"

If a person is confused over how the BOP released him, those left behind are certainly confused as to when the BOP will act on their promises to let them go home. The BOP has come under fire for expanding the number of inmates at its minimum and low facilities eligible for home confinement, only to tell a number of them that they were now not under consideration ... then they were told again they might be. Now many inmates, whose fate related to home confinement is unknown, have been housed in a type of quarantine, some locked down in cells in higher security facilities, for weeks now. It is cruel to the inmates and even more cruel for the families whose contact with them has been limited. Some have only been able to communicate via regular mail.

From the Intercept, "Medical Expert: Federal Jail Intentionally Destroying Medical Records And Hiding Extent Of Coronavirus Behind Bars"

A federal jail in Brooklyn, New York, that houses roughly 1,700 people is destroying medical records as part of a deliberate effort to obscure the number of incarcerated people infected with the coronavirus and to avoid providing them adequate care, alleges the report of a medical expert who toured the facility April 23 as part of a court-ordered inspection.  The report, filed Thursday as part of a putative class-action lawsuit by people held in custody at the Metropolitan Detention Center in Brooklyn, casts doubt on assertions by the Bureau of Prisons, which runs the jail, and the U.S. Attorney’s Office for the Eastern District, which serves as counsel for the bureau. The Bureau of Prisons and federal prosecutors have insisted in court that the situation at the jail is under control.

And BOP's own official data, which many suggest should not be trusted, itself does not provide any basis for hopefulness. BOP's COVID-19 Update page, reporting now data through May 1, states "there are 1842 federal inmates and 343 BOP staff who have confirmed positive test results for COVID-19 nationwide ... [and] there have been 36 federal inmate deaths."

UPDATE: BOP updated its number this afternoon: "As of 05/02/2020, there are 1919 federal inmates and 349 BOP staff who have confirmed positive test results for COVID-19 nationwide..... There have been 37 federal inmate deaths and 0 BOP staff member deaths attributed to COVID-19 disease."

May 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

May 1, 2020

"While jails drastically cut populations, state prisons have released almost no one"

The title of this post is the title of this timely and important new analysis by Emily Widra and Peter Wagner at the Prison Policy Initiative.  I recommend the whole piece (especially to see all the charts and tables), and here are excerpts:

In recent weeks, local governments across the U.S. have drastically reduced their jail populations to slow the spread of the coronavirus.  Many have reduced the number of people in jail by 25% or more, recognizing that the constant churn of people and the impossibility of social distancing in jails make them inevitable hotbeds of viral transmission. But state prisons — where social distancing is just as impossible, and correctional staff still move in and out every day — have been much slower to release incarcerated people....

The strategies jails are using to reduce their populations vary by location, but they add up to big changes.  In some counties, police are issuing citations in lieu of arrests, prosecutors are declining to charge people for “low-level offenses,” courts are reducing the amounts of cash bail, and jail administrators are releasing people detained pretrial or those serving short sentences for “nonviolent offenses.”

Meanwhile, state Departments of Correction have been announcing plans to reduce their prison populations — by halting new admissions from county jails, increasing commutations, and releasing people who are medically fragile, elderly, or nearing the end of their sentences — but our analysis finds that the resulting population changes have been small....

Of the states we analyzed, those with smaller pre-pandemic prison populations appeared to have reduced their populations the most drastically.  The prison population has dropped by 16% in Vermont and almost 8% in Maine and Utah. But the median percentage of people released from jails hovers around 20%, still surpassing Vermont’s state prison reduction of 16%.

States clearly need to do more to reduce the density of state prisons.  For the most part, states are not even taking the simplest and least controversial steps, like refusing admissions for technical violations of probation and parole rules, and to release those that are already in confinement for those same technical violations.  (In 2016, 60,000 people were returned to state prison for behaviors that, for someone not on probation or parole, would not be a crime.)  Similarly, other obvious places to start are releasing people nearing the end of their sentence, those who are in minimum security facilities and on work-release, and those who are medically fragile or older.

May 1, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

AG Barr deceptively suggests 5000 inmates have been moved from federal prison to home confinement, while BOP now reports moving "1,959 inmates"

Attorney General William Barr participated today in a nationwide #AskTheAG Q&A session via Twitter.  I was glad to see him participating in this forum and also glad to see he answered this question posed by Representative Bobby RushL

Q: Why does DOJ/BOP refuse to release prisoners who pose ZERO threat to society despite the increasing number of deaths happening in federal prisons due to COVID-19? 

AG Barr's answer to this question (second in thread), which runs about about 90 seconds, includes an interesting (and problematic) statement about what has been done to date by DOJ and BOP.  AG Barr explains that, in the CARES Act, Congress broadened DOJ discretion to move more inmates out of prison and into home confinement, and then he says: "We have been using that discretion aggressively, right now we have just short of 5000 in home confinement and we have another 1000 in the pipeline."

In the context of both the question and the rest of AG Barr's answer, this statement seems like a straight-forward assertion that because of coronavirus concerns, DOJ/BOP has already moved nearly 5000 persons out of federal prison and into home confinement (with 1000 more on the way).  Indeed, early media reports here and here and here about this statement have understood and reported what AG Barr said as an indication that 5000 inmates have be relocated from prison to home confinement due to the coronavirus crisis. 

But I do not think that suggestion matches with BOP reality because BOP's own COVID-19 Update page, as of the afternoon of May 1, reports (emphasis added):

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 1,959 inmates on home confinement.

It is my guess that the Attorney General, when stating "right now we have just short of 5000 in home confinement," was actually referencing the total number of persons on home confinement, thousands of which were already serving their sentences at home before COVID came along.  According to the BOP, which has been reporting these data on an on-going basis for weeks, AG Barr inflated the real numbers here by 150% to suggest doing a whole lot more than BOP actually is.  (Notably, the real BOP numbers would reflect a movement of just over 1% of the federal prison population into home confinement; even AG Barr's total inflated numbers would still only get us to just over 3% of the federal prison population moved into home confinement.  And, critically, current data show there are still well over 10,000 federal prisoners over age 60 and surely many more with COVID vulnerabilities.) 

It strikes me as extremely deceptive and problematic that the AG in this context used phrasing to create the misimpression that thousands more persons were being moved to home confinement due to COVID than BOP's own website reports.  And I suspect he did this not only to create the misimpression that DOJ/BOP has been taking major steps in this arena, but also to bolster arguments being made by prosecutors in courtrooms around the country that judges ought to trust how BOP is handling the COVID crisis and not grant requests from persons in prison for relief from dangerous prison conditions.

UPDATE: I am disappointed, but not surprised, to see this New York Times piece about AG Barr's comments reiterating the inaccuracy in the AG's deceptive statement:  "Mr. Barr said that the bureau took 'the health and safety of our inmates very seriously,' and had moved to release nearly 5,000 prisoners to home confinement and had another 1,000 in the pipeline."    Similarly, Fox News repeated this misrepresentation in its story: "Barr replied to the Democratic congressman that the Department of Justice had used its authority under the First Step Act to move nearly 5,000 prisoners who were considered vulnerable to COVID-19 from incarceration to home confinement, and had another 1,000 'in the pipeline' to be moved." 

Dare I say it: FAKE NEWS, thanks to the Attorney General mostly, but also thanks to media not following up properly with a check of the official BOP data! 

In any event, I would now suggest advocates try to turn the lemon-sour deception of AG Barr into decarceration lemonade by arguing, in every venue, that the AG's comments have served to create a short-tern goal of getting a full 6000 COVID-vulnerable prisoners who were incarcerated in March into home confinement before the end of May.

May 1, 2020 in Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Exciting DEPC and OJPC sentencing project: "Drafting Contest: An Ohio 'Second Look' Statute"

Second-Look-Contest_for-web-email-survey-2I am pleased to be able to note — and everyone should be prepared for me to repeatedly promote — an exciting new project from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC).  The basic details are explained on this webpage, more background appears in this document, and here are the essentials:

About

A robust national discussion about how best to remedy extreme and unwarranted prison sentences has prompted various new proposed remedies. In hopes of encouraging discussion and debate around the creation of a comprehensive “second-look sentencing provision” in Ohio law, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC), a statewide criminal-justice nonprofit, are sponsoring a legislative-drafting contest for law students and recent law school graduates.

Contest Objective and Deliverable

DEPC and OJPC encourage law students and recent graduates (from class years 2015-2020) to submit (1) proposed language for a new Ohio statutory provision and (2) accompanying commentary to allow courts to take a second look at Ohio prison sentences.  The proposal should address both substance (e.g., when and to whom does it apply) and procedure (e.g., how should such a second look be initiated and decided).  Entrants may, but are not required to, address the public-health issues that have come to the fore with COVID-19 (e.g., the proposal might have a special provision allowing more prisoners to seek resentencing when a public-health emergency has been declared).  Group submissions are acceptable and encouraged.

Contest Timeline and Awards

Submissions are due June 30, 2020.  The winning submission will receive a prize of $2,000, and up to two runner-up prizes of $1,000 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the groups members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full version of the winning proposal will also be presented to the Ohio Criminal Sentencing Commission at a forthcoming meeting and may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

May 1, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Though delaying a number of executions, COVID-19 takes the life of death row prisoner in Arizona

As reported in this Fox New piece, "Arizona inmate on death row for murder and kidnapping convictions died Thursday from the coronavirus, according to a report." Here is more:

Alfonso Salazar, 56, had been hospitalized since April 21. He was being housed at the Florence prison, located about 60 miles southeast of Phoenix. Dale Baich, a federal public defender whose office represented him in an appeal, called the prison's medical care "poor" and said it is the "subject of ongoing litigation."

Salazar was sentenced to death in 1988 after he, along with another man, were convicted of murdering 83-year-old Tucson resident, Sara Kaplan two years earlier. She was found beaten and strangled by a telephone cord, according to Phoenix's KJZZ radio station. They entered her home by prying open metal security bars from a window, the station added.

He's the first death row inmate in Arizona to die of coronavirus complications, and the third inmate in the state to die from the virus. At least seven other death row prisoners have tested positive for the coronavirus, Baich said.

One of the ill inmates said he and the others are being isolated in a dirty, cockroach-infested building. The Florence facility accounts for 35 of the 50 coronavirus cases in state prisons.

As detailed in this posts linked below, a few persons on death row are still alive because of the coronavirus as more than a half-dozen executions have been postponed nationwide. But this story from Arizona is the first report I have seen of a person on death row being among the prisoners to die because of COVID-19.

Some prior related capital COVID posts:

May 1, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

April 30, 2020

"Resentencing of Juvenile Lifers: The Philadelphia Experience"

The title of this post is the title of this notable new report authored by Tarika Daftary-Kapur and Tina Zottoli.  Here is its executive summary and key findings:

EXECUTIVE SUMMARY

We examined the Philadelphia District Attorney Office’s approach to juvenile lifer resentencing, which began in 2017 under the administration of District Attorney Seth Williams and has continued under the administration of District Attorney Larry Krasner.  For cases resentenced as of December 31st, 2019, we describe similarities and differences between the Williams and Krasner administrations in decision making and sentence length reductions, and we report on the recidivism rate and estimated cost savings for Pennsylvania as a result of release.

In June 2012, the Supreme Court of the United States (SCOTUS) ruled in Miller v. Alabama that mandatory life without-parole (LWOP) sentences were unconstitutional for individuals who were under the age of 18 at the time of their offense (hereafter, juveniles).  In January 2016, SCOTUS, ruled in Montgomery v. Louisiana that Miller applied retroactively.  Following Montgomery, individuals previously sentenced to mandatory LWOP as juveniles (hereafter, juvenile lifers) became eligible for resentencing.  Accordingly, in almost all such cases, the district attorney’s office makes an offer for a new sentence to the defendant, who is free to accept the offer or to have his new sentence decided by the judge.

At the time Miller was decided, Philadelphia had the largest number of juveniles sentenced to LWOP in the country (approximately 325).  Yet, they have been at the forefront of the resentencing process nationally, and at the time of this writing have only 10 juvenile-lifers left to re-sentence; the main reasons for delay being an open Post Conviction Relief Act petition or a pending appeal.

In Philadelphia, re-sentence offers are decided by The Juvenile Lifer Resentencing Committee ("The Lifer Committee"), which comprises 8 members of the executive staff at the District Attorney's Office.  The Lifer Committee’s decisions are based primarily on the consideration of case-summary memos prepared for the Committee by the Assistant District Attorney leading the resentencing process. Memos include information on the facts of the original case, demographic information on the victim and offender, mitigating information, the offenders’ prison adjustment (e.g.misconducts,rehabilitative programming), information on acceptance of responsibility and remorse, the victim’s family’s perspective on release, and reentry plans.

In January 2018, as the resentencing process was underway, Larry Krasner was sworn in as the District Attorney of Philadelphia after having run on a reform platform, ushering in dramatic change to the culture and policies of the District Attorney’s Office.  This change in administrations, during a crucial resentencing project, provided us with a unique opportunity to examine how the priorities and policies of the new administration have affected prosecutorial decision making.  Moreover, in light of the growing recognition that addressing the incarceration epidemic will necessitate re-evaluation of long-term prison sentences for individuals who were convicted of violent offenses, these outcome data have implications far beyond just those that pertain to the resentencing and release of juvenile lifers....

KEY FINDINGS

  • Pennsylvania has resentenced 88% of its juvenile lifers as compared to Michigan (52%) and Louisiana (approx. 15-22%); the three states in combination account for 2/3rd of all juvenile lifers in the United States.

  • Juvenile lifers can be considered low-impact releases in terms of risk posed to public safety.  At the time of our analyses, 269 lifers have been re-sentenced in Philadelphia and 174 have been released.  Six (3.5%) have been re-arrested.  Charges were dropped in four of the cases and two (1%) resulted in new convictions (one for Contempt and the other for Robbery in the Third Degree).  In comparison, nationally, an estimated 30% of individuals convicted of homicide offenses are rearrested within two years of release.

  • A subset of 38 cases were considered for resentencing by both the prior and current administrations.  The average sentence offered in these cases by the prior administration was 38.8 years; under Krasner, the average offer in these cases was 27.6 years.  Across all cases, this difference equates to an additional reduction of 394 years.

  • Overall, release of Philadelphia's juvenile lifers, to date, will result in an estimated minimum $9.5M savings in correctional costs for Pennsylvania over the first decade.

  • For both the Williams and Krasner administrations, Lifer Committee offers were explained by years in custody at time of resentencing, charge severity, whether the defendant was the primary actor, and whether a re-entry plan is in place.  There were some differences. While both administrations considered the maturity of the offender, the Williams administration relied on defendant age at the time of the offense and the level of planning, whereas the Krasner administration relied on a more holistic evaluation of the juvenile nature of the crime (e.g., involvement of an adult co-defendant, presence of peers, context in which the murder was committed).  Prior convictions also weighed more heavily under Krasner than the prior administration.

April 30, 2020 in Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (5)

Noteworthy federal prison numbers, news and notes as an April like no other comes to a close

In this post last Thursday, I reviewed some past and present data on the federal prison populations.  In that post, I highlighted that, according to BOP's reporting of the numbers, it appears that through the month of April the federal prison population was shrinking about 1,000 persons per week.  Another Thursday means new numbers at this webpage, and toady's official refreshed count of the total number of federal inmates as calculated by the Federal Bureau of Prisons shows a drop of 999 with the population going down from 171,434 on April 23 to 170,435 as we close out April.

Notably, the BOP's COVID-19 Update page last week reported then that "the BOP has placed an additional 1,440 inmates on home confinement."   This week, as of mid-day April 30, BOP is reporting that it has placed "1,805 inmates on home confinement."  This reported official increase of 365 more inmates placed on home confinement would seemingly account for only a little more than a third of this week's overall population decrease.  This reinforces my sense that a reduced inflow of prisoners (due I would guess to many sentencings and reportings to prisonsbeing delayed) accounts for the lion's share of the prison population decline over the last month.

Meanwhile, as the BOP is starting to roll out more COVID testing and yet still struggling with policy and operational changes, there seems lately to be even more press covering the messiness in various ways:

From the Associated Press, "Over 70% of tested inmates in federal prisons have COVID-19"

From the Chicago Tribune, "Wild swing in coronavirus numbers reported at Chicago’s federal jail goes unexplained, leaves lawyers skeptical"

From the Santa Barbara Independent, "Lompoc Prison’s COVID-19 Crisis Threatens to Pop: Rep. Salud Carbajal Warns of Potential 'Disaster That’s Unfathomable'"

From USA Today, "More than 1,500 federal prisoners now have COVID-19 as officials expand testing"

From the Wall Street Journal, "More Than 70% of Inmates Tested in Federal Prisons Have Coronavirus: Prisons officials expect the number of positive results to climb as testing is expanded"

April 30, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Bureau of Justice Statistics, reporting its "new" data from end of 2018, highlights "US Imprisonment Rate At Its Lowest Since 1996"

I received this morning an email blaring in all caps in the subject line "U.S. IMPRISONMENT RATE AT ITS LOWEST SINCE 1996." I thought this might be a COVID-based new analysis, but in fact the email was based on this new press release from the federal Bureau of Justice Statistics summarizing its latest report on US incarceration levels as of the end of 2018. Here is some text from the release:

In 2018, the combined state and federal imprisonment rate was 431 sentenced prisoners per 100,000 U.S. residents, which was the lowest rate since 1996, when there were 427 sentenced prisoners per 100,000 residents, the Bureau of Justice Statistics announced today.

Across a decade, the imprisonment rate fell 15%, from 506 sentenced prisoners per 100,000 U.S. residents in 2008 to 431 sentenced prisoners per 100,000 U.S. residents in 2018. During this period, the imprisonment rate dropped 28% among black residents, 21% among Hispanic residents, and 13% among white residents. In 2018, the imprisonment rate of black residents was the lowest since 1989.

At the end of 2018, a total of 22 states had imprisonment rates that were higher than the nationwide average. Louisiana had the highest rate (695 sentenced prisoners per 100,000 state residents), followed by Oklahoma (693 per 100,000), Mississippi (626 per 100,000), Arkansas (589 per 100,000) and Arizona (559 per 100,000). Minnesota, Maine, Massachusetts, Rhode Island and Vermont had the lowest imprisonment rates in the U.S., with each having fewer than 200 sentenced prisoners per 100,000 residents.

From the end of 2017 to the end of 2018, the total prison population in the U.S. declined from 1,489,200 to 1,465,200, a decrease of 24,000 prisoners. This was a 1.6% decline in the prison population and marked the fourth consecutive annual decrease of at least 1%.

Less than 15% of sentenced state prisoners were serving time for a drug offense at year-end 2017 (4% for possession), the most recent year for which offense-related data are available. Among sentenced state prisoners at year-end 2017, an estimated three-fifths of blacks and Hispanics (61% each) and nearly half of whites (48%) were serving time for a violent offense. At the same time, 23% of sentenced white prisoners in state prison were serving time for a property offense, compared to 13% each of sentenced black and Hispanic prisoners.

Among prisoners sentenced to serve more than one year in state or federal prison, an estimated 3% were age 65 or older at year-end 2018. An estimated 5% of sentenced white prisoners and 2% each of sentenced black and Hispanic prisoners were age 65 or older....

Two-thirds (67%) of admissions in 2018 of sentenced state prisoners were on new court commitments, while nearly a third (30%) of admissions were due to violations of post-custody supervision. (The remaining 3% were admitted for other reasons, such as other conditional release violations, returns from appeal or bond, and other types of admissions.) Five states admitted more than half of their prisoners for violating conditions of post-custody supervision: Washington (75%), Idaho (65%), Vermont (65%), Utah (52%) and New Hampshire (52%).

Because a lot happened in the year 2019 (e.g., the federal FIRST STEP Act and some parallel state reforms), these data would have seemed dated even without our new COVID world order.  But this full 38-page report (which only covers prisons and not jails) still provide a terrifically interesting an important accounting of many key realities and (pre-COVID) trends in incarceration nation.  BJS has released here along with the full report, which is titled simply "Prisoners in 2018," a helpful Summary and Data tables and Jurisdiction notes

April 30, 2020 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

April 29, 2020

From drug sentences to death sentences: documenting arbitrary and capricious drug war casualties

Many millions, perhaps tens of millions of persons, in the United States are involved in some federally illegal drug activity.  But only select few, roughly 20,000 per year, are subject to federal prosecution and sentencing.  The tiny percentage of drug offenders subject to federal prosecution are not quite randomly selected, but exactly who and how offenders are brought into the federal system often seems to have more to do with federal prosecutorial priorities than with offending behaviors.  (This US Sentencing Commission document shows that federal cocaine and meth cases were still more commonly sentenced than opioid cases through the height of the opioid epidemic.   Notably, those selected for federal prosecution are disproportionate persons of color: in Fiscal Year 2019, as in most prior years, only about one quarter of persons prosecuted for federal drug crimes are white.)

For those sentenced to federal prison, the vicissitudes of federal drug prosecution are now combined with the coronavirus pandemic and the uncertainties of just who will get sick from the virus.  Sadly, for more than a few, the result has been an untimely death.  Of course, every unnecessary death by illness for an incarcerated person is a tragic event; but the recent death of the first female federal inmate (discussed here) struck me as an especially arbitrary and capricious drug war casualty.  And it inspired me to go though the BOP press releases about COVID inmate deaths to see how many involve drug offenders. Here is what I found (with quote about offense drawn from BOP press release):

Patrick Jones (died March 28: "49 year-old male who was sentenced in the Western District of Texas to a 324- month sentence for Possession with Intent to Distribute 425.1 grams of crack cocaine within 1000 ft. of a junior college") 

Nicholas Rodriguez (died April 1: "43 year-old male who was sentenced in the Northern District of California to a 188-month sentence for Conspiracy to Distribute a Mixture and Substance Containing a Detectable Amount of Methamphetamine and Possession with Intent to Distribute a Mixture and Substance Containing a Detectable Amount of Methamphetamine")

Woodrow Taylor (died April 2: "53 year-old male serving a 60 month sentence for Conspiracy to Possess with Intent to Distribute 500 grams or more of Cocaine")

David Townsend (died April 2: "66 year-old male who was sentenced in the Northern District of Georgia to a 240-month sentence for Possession With Intent to Distribute at least 100 kg. of Marijuana, at least 500 gm. of Methamphetamine Mixture, and at least 5 gm. of Methamphetamine Actual")

Margarito Garcia-Fragoso (died April 2: "65 year-old male serving 126 month sentence for Possession with Intent to Distribute more than 500 grams of cocaine and Possession of a Firearm in Furtherance of Drug Trafficking Crime")

Gary Edward Nixon (died April 12: "57 year-old male who was sentenced in the Eastern District of North Carolina to a 155-month Supervised Release Violation Term with new criminal conduct of Conspiracy to Distribute With Intent to Distribute More Than 5 Grams of Cocaine Base (Crack). The original offense conduct was Conspiracy to Possess With Intent to Distribute 100 Grams or More of Heroin and Possession With Intent to Distribute a Quantity of Heroin")

Alvin Turner (died April 13: "43 year-old male sentenced in the Eastern District of Michigan to a 180 month term for Conspiracy to Possess With Intent to Distribute and to Distribute Cocaine")

Michael Fleming (died April 19: "59 year-old male who was sentenced in the District of Wyoming to a 240-month sentence for Conspiracy to Possess with Intent to Distribute and to Distribute
Methamphetamine")

Arnoldo Almeida (died April 22: "a 61 year-old male who was sentenced in the Western District of Texas to a 188-month sentence for Conspiracy to Possess with Intent to Distribute a Controlled Substance Containing a Detectable Amount of Cocaine")

Oscar Ortiz (died April 24: "78 year-old male who was sentenced in the District of Idaho to a 324-month sentence for Conspiracy to Distribute Methamphetamine and/or Marijuana, Drug
Possession/Distribution, and Misprison of a Felony")

Donnie Grabener (died April 25: "65 year-old male who was sentenced in the District of Louisiana to a 120-month sentence for Conspiracy to Distribute Methamphetamine and Felon in Possession of a Firearm")

Andrea Circle Bear (died April 28: "30 year-old female who was sentenced in the District of South Dakota to a 26-month sentence for Maintaining a Drug Involved Premises")

William Walker Minto (died April 28: "73 year-old male who was sentenced in the Eastern District of Tennessee to a 240-month term for Conspiracy to Distribute and Possess With Intent to Distribute 1,000 Kilograms or More of Marijuana")

April 29, 2020 in Drug Offense Sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Catching up on lots more new sentencing and punishment scholarship

In this post two weeks ago I spotlighted more than a dozen new pieces of sentencing and punishment scholarship that had been posted to SSRN and that I did not find time to highlight in separate posts while consumed with COVID criminal justice issues. A few weeks later, I am still consumed with other matters and there are still more new pieces worth noting. So, I will again seek to catch up for lost time with another lengthy post linking to a lot of new scholarship from SSRN (listed here in alphabetical order by title):

Atwater and the Misdemeanor Carceral State by Alexandra Natapoff

The Constitutionalization of Parole: Fulfilling the Promise of Meaningful Review by Alexandra Harrington

Eighth Amendment Presumptive Penumbras by William W. Berry

Lady Justice Without Her Blindfold: An Analysis on How Race Influences Sentencing by Adefisayo Adegoye

Legislating for Profit and Optimal Eighth Amendment Review by Murat C. Mungan and Thomas J. Miceli

Populist Prosecutorial Nullification by Kerrel Murray

Pretrial Detention in the Time of COVID-19 by Jenny E. Carroll

The Prisoner and the Polity by Avlana Eisenberg

Race Decriminalization and Criminal Legal System Reform by Michael Pinard

State Prosecutors at the Center of Mass Imprisonment and Criminal Justice Reform by Nora V. Demleitner

The Unusual Cruelty of Nursing Homes Behind Bars by Rachel Lopez 

Victims, Right? by Anna Roberts

April 29, 2020 in Recommended reading | Permalink | Comments (0)

"Length of Incarceration and Recidivism"

The title of this post is the title of of this notable new report just released today by the US Sentencing Commission.  Here is a basic summary and key findings from this USSC webpage:

Summary

Length of Incarceration and Recidivism is the seventh publication in the Commission’s recent series on recidivism. This study examines the relationship between length of incarceration and recidivism, specifically exploring three potential relationships that may exist: incarceration as having a deterrent effect, a criminogenic effect, or no effect on recidivism. (Published April 29, 2020)

Report Findings
  • The Commission consistently found that incarceration lengths of more than 120 months had a deterrent effect.
    • Each of the research designs estimated that offenders incarcerated for more than 120 months were less likely to recidivate eight years after release. In the two models with the larger sample sizes, offenders incarcerated for more than 120 months were approximately 30 percent less likely to recidivate relative to a comparison group receiving less incarceration. In the third model, offenders incarcerated for more than 120 months were approximately 45 percent less likely to recidivate relative to a comparison group receiving less incarceration.
  • In two models, the deterrent effect extended to incarceration lengths of more than 60 months.
    • Specifically, offenders incarcerated for more than 60 months up to 120 months were approximately 17 percent less likely to recidivate relative to a comparison group sentenced to a shorter period of incarceration.
  • For incarceration lengths of 60 months or less, the Commission did not find any statistically significant criminogenic or deterrent effect.
    • When focusing on the shortest period of incarceration studied (12 to 24 months), the research designs yielded varying results, neither of which were statistically significant nor sufficiently reliable to make evidence-based conclusions.

April 29, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing | Permalink | Comments (0)

The sad details of the first woman in federal prison to die from COVID-19

The federal Bureau of Prisons issued this press release last night, titled "Inmate Death at FMC Carswell," which reports these sad details:

On Friday, March 20, 2020, inmate Andrea Circle Bear was transported by the United States Marshal Service from Winner City Jail, Winner, South Dakota to FMC Carswell in Fort Worth, Texas.  Per the Bureau's current COVID-19 procedures, Ms. Circle Bear was immediately placed on quarantine status at FMC Carswell.

On Saturday, March 28, 2020, Ms. Circle Bear was evaluated by FMC Carswell Health Services staff and transported to the local hospital due to potential concerns regarding her pregnancy. After evaluation by the local hospital staff, Ms. Circle Bear was discharged the same day and transported back to FMC Carswell.  On Tuesday, March 31, 2020, Ms. Circle Bear was seen by FMC Carswell Health Services staff for a fever, dry cough, and other symptoms, and was transported to the local hospital for further treatment, evaluation, and placed on a ventilator.

On Wednesday, April 1, 2020, Ms. Circle Bear’s baby was born by cesarean section. On Saturday, April 4, 2020, Ms. Circle Bear was confirmed positive for COVID-19.  On Tuesday, April 28, 2020, Ms. Circle Bear, who had a pre-existing medical condition which the CDC lists as risk factor for developing more severe COVID-19 disease, was pronounced dead by hospital staff.

Ms. Circle Bear was a 30 year-old female who was sentenced in the District of South Dakota to a 26-month sentence for Maintaining a Drug Involved Premises.  She had been in custody at FMC Carswell since March 20, 2020.

More details on what led to this tragic state of affairs can be found via this January 2020 press release from the US Attorney's Office forthe District of South Dakota titled "Eagle Butte Woman Sentenced for Maintaining a Drug Involved Premises":

United States Attorney Ron Parsons announced that an Eagle Butte, South Dakota, woman convicted of Maintaining a Drug Involved Premises was sentenced on January 14, 2020, by Chief Judge Roberto A. Lange, U.S. District Court.

Andrea Circle Bear, a/k/a Andrea High Bear, age 29, was sentenced to 26 months in federal prison, followed by 3 years of supervised release, and a special assessment to the Federal Crime Victims Fund in the amount of $100. Circle Bear was indicted by a federal grand jury on March 12, 2019. She pled guilty on October 7, 2019.

The conviction stemmed from several incidents in April of 2018, when Circle Bear unlawfully and knowingly used and maintained a place for the purpose of distributing methamphetamine on the Cheyenne River Sioux Indian Reservation.

“It is federal crime to knowingly allow a drug dealer to operate out of your home, apartment, or place of business,” said U.S. Attorney Ron Parsons. “Don’t let yourself or your property get mixed up in the world of illegal drugs. It ends badly.”...

Circle Bear was immediately remanded to the custody of the U.S. Marshals Service.

Though I do not know just how far along Ms. Circle Bear was on April 1 when her baby was delivered by cesarean section, I think it is a near certainty that everyone had know by the time of her sentencing in mid January 2020 that she was pregnant.  I also do not know if anyone thought to ask in January 2020 about possibly delaying the start of her prison term until she gave birth, but it is so very telling (and here proved so very deadly) that, even with a seemingly low-level non-violent drug offense, there was apparently no effort to accommodate a woman in the second trimester of her pregnancy.

Moving forward on the timeline, I do not know why it took two months to transfer Ms. Circle Bear from a South Dakota jail to a federal prison in Texas on March 20.  But recall that a national emergency was declared by Prez Trump on March 13, and we had all for a few weeks already been talking about social distancing.  I am fear little or no social distancing was possible while Ms. Cloud Bear was being transported by the United States Marshal Service to FMC Carswell in Texas.  And remember, now, Ms. Circle Bear is in her third trimester when being taking on an 800+ mile trip from South Dakota to Texas in the midst of a national pandemic.  

When Ms. Circle Bear gets to Texas, very pregnant, she is "immediately placed on quarantine status at FMC Carswell."  I am not sure if I find that detail reassuring, but I suspect that status just made being very pregnant that much harder for this young woman.  Oh yeah, BOP also now tells us that Ms. Circle Bear  "had a pre-existing medical condition which the CDC lists as risk factor for developing more severe COVID-19 disease."  So why was she moved to Carswell in the first instance after the pandemic had broken out, and why did BOP apparently do so very little to ensure her health and safety along the way?

There are so many moments these days in which I am unsure about whether I could get more sad and more angry about our COVID criminal justice world, but this story surely has made me more sad and more angry. 

UPDATE: FAMM has this new press release titled "FAMM calls for an investigation into the death of Andrea Circle Bear who died of COVID-19 in Federal Bureau of Prisons custody." Here is a portion:

FAMM President Kevin Ring issued the following statement in response to the death of Andrea Circle Bear, who died giving birth to her child while on a ventilator due to COVID-19 complications while in Federal Bureau of Prisons (BOP) custody.  FAMM is calling for an immediate investigation, and for the expansion of compassionate release and use of home confinement.

“Not every prison death is avoidable, but Andrea Circle Bear’s certainly seems to have been — she simply should not have been in a federal prison under these circumstances,” Ring said. “In fact, nothing better demonstrates our mindless addiction to punishment more than the fact that, in the midst of a global pandemic, our government moved a 30-year-old, COVID-vulnerable pregnant woman not to a hospital or to her home, but to a federal prison.

“Her death is a national disgrace, and I hope it is a wake-up call. Ms. Circle Bear was sentenced to 26 months in prison, not the death penalty. We have to do better. The Justice Department should investigate why this happened and take steps to ensure that it never happens again.”

April 29, 2020 in Drug Offense Sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

April 28, 2020

Texas postpones a sixth execution due to coronavirus

As reported in this new AP piece, a "sixth scheduled execution of a Texas death row inmate has been delayed following the coronavirus spread around the state."  Here is more:

Edward Lee Busby’s execution had been set for May 6, but it was stayed for 60 days by the Texas Court of Criminal Appeals on Monday.

Busby, 47, was condemned for the 2004 suffocation of a retired 77-year-old college professor abducted in Fort Worth and whose body was later recovered in Oklahoma.

While the appeals court didn’t mention COVID-19 in its order, Busby’s attorneys had argued the execution should be delayed because they and others, including judges and personnel who carry out the execution, could be put at risk for getting the virus if it proceeded.

Three other executions that had been scheduled this year were also delayed by the appeals court while two others were delayed by local judges.

The next execution scheduled in the Lone Star State is slated for May 13 according to this Death Penalty Information Center listing. Given that Texas is opening a lot of facilities by the end of this week, it will be interest to see if the state tries to get its machinery of death operational by the middle of May.

Some prior related capital COVID posts:

April 28, 2020 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns

In recent posts here and here, I highlighted some of the COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) available via Westlaw.  (And, as I keep mentioning, I think these Westlaw listings do not represent all sentence reductions being granted these days).  Though a new week is just getting started (with Westlaw only showing rulings through April 27), I have spotted lots of new grants of sentence reductions since my last posting.  It is heartening to see these rulings from coast-to-coast and lots of places in-between:

United States v. Robinson, No. 18-cr-00597-RS-1, 2020 WL 1982872 (ND Cal. Apr. 27, 2020)

United States v. Gorai, No. 2:18-CR-220 JCM (CWH), 2020 WL 1975372 (D Nev. Apr. 24, 2020)

United States v. Coles, No. 00-cr-20051, 2020 WL 1976296 (CD Ill. Apr. 24, 2020)

United States v. Thorson, No. 5:16-CR-00017-TBR, 2020 WL 1978385 (WD Ky. Apr. 24, 2020)

United States v. Williams, No. 3:17-cr-121-(VAB)-1, 2020 WL 1974372 (D Conn. Apr. 24, 2020)

United States v. Park, No. 16-cr-473 (RA), 2020 WL 1970603 (SDNY Apr. 24, 2020)

United States v. Walls, No. 92-80236, 2020 WL 1952979 (ED Mich. Apr. 23, 2020)

United States v. Jackson, No. 4:14-CR-00576, 2020 WL 1955402 (SD Tex. Apr. 23, 2020)

United States v. Curtis, No. 03-533 (BAH), 2020 WL 1935543 (DDC Apr. 22, 2020)

United States v. Bess, No. 16-cr-156, 2020 WL 1940809 (WDNY Apr. 22, 2020)

United States v. Sanchez, No. 18-cr-00140-VLB-11, 2020 WL 1933815 (D Conn. Apr. 22, 2020)

In addition to this encouraging dozen of sentence reductions grants using § 3582(c)(1)(A) accelerated by COVID concerns, last week also brought a remarkable ruling that focused on pre-COVID concerns.  In United States v. Haynes, No. 93 CR 1043 (RJD), 2020 WL 1941478 (EDNY Apr. 22, 2020), the court granted relief to a fellow who, back in the early 1990s, got 40 years of extra mandatory prison time based on stacked gun charges brought by prosecutors after he turned down a plea deal calling for around an eight-year term.  As the court now explained: "Haynes has served almost 27 of the 46½ years to which he was sentenced.  To put that in context, he has served more than three times the length of the high end of the sentence he would have received had he pled guilty."  With that background and after some extended discussion of relevant precedent, the court added:

The Court readily concludes, on the facts as detailed above — including the brutal impact of Haynes’s original sentence, its drastic severity as compared to codefendant Rivers’s ten-year term, its harshness as compared to the sentences imposed on similar and even more severe criminal conduct today, and the extent to which that brutal sentence was a penalty for Haynes’s exercise of his constitutional right to trial — that the FSA’s elimination of the § 924(c) sentencing weaponry that prosecutors employed to require that sentence is an extraordinary and compelling circumstance warranting relief under § 3582(c).  For an individual like Haynes, with three pre-amended § 924(c) counts in a single indictment, the change spells the difference between thirty years in or out of prison.

I continue to be pleased to see (some) judges recognizing that 3582(c)(1)(A) motions can and should provide a means to correct (some) past unjust federal sentences.  The COVID crisis and the threat it poses to vulnerable prisoners is surely increasing the willingness of judges to review swiftly those past sentences that may no longer serve any sentencing purpose.  But, the sad reality of prison is that it is often bad, even in normal times, for the health of both inmates and the broader community.  Judge (and prosecutors and lawmakers) ought always be carefully checking and double-checking and triple-checking whether the considerable tax dollars used to keep persons incarcerated are sound public safety investments.

Prior recent related posts since lockdowns:

Some (of many) pre-COVID posts on § 3582(c)(1)(A) after FIRST STEP Act:

April 28, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Mandatory minimum sentencing statutes, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (1)

"Policy Reforms Can Strengthen Community Supervision: A framework to improve probation and parole"

Figure1_650The title of this post is the title of this lengthy new report produced by The Pew Charitable Trusts Public Safety Performance Project. Here are excerpts from the report's "Overview":

Since 1980, the nation’s community supervision population has ballooned by almost 240 percent. As of 2016, 1 in 55 U.S. adults (nearly 4.5 million people) are on probation or parole, more than twice the number incarcerated in state and federal prisons and local jails. Historically, probation and parole were intended to provide a less punitive, more constructive alternative to incarceration, but a growing body of evidence suggests that a frequent emphasis on surveillance and monitoring of people under supervision rather than on promoting their success, along with the resource demands of ever-larger caseloads, has transformed community supervision into a primary driver of incarceration. This shift has produced an array of troubling consequences, not only for individuals on probation and parole but for taxpayers and communities as well.

In recent years, a growing body of evidence on what works in community supervision has revealed a set of key challenges that undermine the system’s effectiveness and merit attention from policymakers:

• Community supervision is a leading driver of incarceration....

• Excessive rules can present barriers to successful completion of supervision....

• Agencies often inappropriately supervise low-risk individuals....

• Overextended supervision officers have less time to devote to high-risk, high-need individuals....

• Many people with substance use or mental health disorders do not receive treatment.... 

To address these problems, some supervision agencies have begun to embrace evidence-based practices that have been shown to improve outcomes and reduce recidivism. These include the use of research-based assessment tools to identify an individual’s level of risk for reoffending, graduated sanctions, such as increased reporting or short-term incarceration, to respond to violations of supervision rules, and incentives to encourage rule compliance.  As a result of these and other policy changes, 37 states have experienced simultaneous reductions in crime and community supervision rates.

Although those results are encouraging, states and agencies need time to analyze their systems and enact reforms on a much larger scale to ensure that probation and parole function more effectively.  To help states meet this challenge, The Pew Charitable Trusts, in partnership with Arnold Ventures, established the Advisory Council on Community Supervision to develop a policy framework for state lawmakers, court officers, and community corrections personnel. The council featured a diverse group of representatives from probation and parole agencies, the courts, law enforcement, affected communities, the behavioral health field, and academia. Drawing on its members’ extensive experience and knowledge, the council agreed on three broad goals for the next generation of community supervision: better outcomes for people on supervision, their families, and communities; a smaller system with fewer people on supervision; and less use of incarceration as a sanction for supervision violations, particularly breaches of the rules.

With those goals in mind, the council developed a menu of policies that state decision-makers and supervision administrators can use to reshape community supervision. Arnold Ventures supported the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota to examine the research underlying the policies and practices identified by the council, and where such an evidence base exists, it is summarized and cited in this framework. The recommendations are arranged according to seven broad objectives:

• Enact alternatives to arrest, incarceration, and supervision....

• Implement evidence-based policies centered on risks and needs....

• Adopt shorter supervision sentences and focus on goals and incentives....

• Establish effective and appropriate supervision conditions....

• Develop individualized conditions for payment of legal financial obligations....

• Reduce use of and pathways to incarceration.... 

• Support community supervision agencies.... 

April 28, 2020 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

April 27, 2020

Feds appealing last week's judicial order to transfer vulnerable prisoners "out of Elkton through any means"

As reported in this local article, "Federal prosecutors on Monday said they would appeal a federal judge's decision to order the Bureau of Prisons to release or transfer hundreds of inmates at an Ohio federal lock-up where an outbreak of the novel coronavirus killed several inmates."  Here is more:

Assistant U.S. Attorney James Bennett filed a motion asking the Sixth Circuit in Cincinnati to review U.S. District Judge James Gwin’s Wednesday granting of the ACLU of Ohio for a temporary injunction seeking the release of prisoners from the Federal Correctional Institution Elkton. The BOP announced on Sunday that a seventh inmate at the facility, identified as 55-year-old Richard Nesby, had died due to complications related to the COVID-19 virus.

The filing came just before a scheduled 10:30 a.m. teleconference hearing in which Bennett told Gwin he would also on Monday ask Gwin to put his order on hold.  BOP identified more than 800 prisoners who would fall under Gwin's order for the prison to either release or relocate prisoners who are 65 years old and older and those who have certain pre-existing conditions that put them at risk of serious illness associated with the virus.

Gwin gave the government two weeks to determine which prisoners it can release on parole, furlough, compassionate release or home confinement.  The government also has the option to move the inmates to other prisons "where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished."  

Bennett last week requested Gwin's permission to file the list of prisoners under seal. He argued in Monday's hearing that publicly naming those prisoners would divulge their personal and private medical information.  Gwin rejected the motion and ordered the government to make public a list that includes the name and prison identification number of each prisoner, and the underlying court and case number for each one.  Gwin separately ordered the bureau to give the plaintiffs' lawyers a list of the specific medical conditions that it included in its search criteria....

The ACLU sued after the coronavirus spread among prisoners and staff.  It said staff members didn't take proper precautions to protect the inmates and prisons violated the constitutional rights of the inmates.  Attorneys for the prisons bureau had urged the judge not to release any inmates, saying the staff was taking the proper precautions to isolate those with the virus, conduct health screenings and identify suitable candidates for home confinement.  Gwin, however, wrote that staff wasn't doing enough and believed the prison bureau's number constitutes an undercounting of the actual number of cases at Elkton.

This BOP page on FCI Elkton indicates the facility has an inmate population of just over 2400 persons. I find it remarkable, though not all that surprising, that a full one-third of this population is at-risk according to CDC guidelines.

Prior related post:

April 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Federal judge orders more social distancing, but does not mandate more releases, for Cook County Jail in Chicago

As reported in this Chicago Tribune piece, a "federal judge on Monday issued a preliminary injunction mandating additional social distancing measures to battle the spread of coronavirus at the Cook County Jail, including banning double-inmate cells and group housing in most cases."  Here is more about this (limited) new ruling:

In an 87-page order, U.S. District Judge Matthew Kennelly gave the sheriff’s office until Friday to implement new plans eliminating “bullpens” to house new inmates being processed into the jail, providing face masks to all detainees under quarantine, and regularly sanitizing “all frequently touched surfaces and objects.”

Double-inmate cells will be permitted only in certain situations — such as on tiers where inmates are quarantined after testing positive for COVID-19 or are on suicide or other medical watch, Kennelly ruled. The judge also wrote that dormitory-style tiers can only be used if they are at less than 50% capacity, so the 6-foot distancing rule can be better enforced.

The ruling came as part of an ongoing lawsuit filed by the Loevy and Loevy law firm and the MacArthur Justice Center at Northwestern University alleging Sheriff Tom Dart has failed to stop a “rapidly unfolding public health disaster” at the jail, which has been identified as one of the nations’ leading hot spots for coronavirus infections.

As of Sunday, six detainees have died after contracting COVID-19 at the jail, according to the sheriff’s office. Another 229 inmates currently have the virus, 17 of whom are hospitalized. Hundreds of others have tested positive and have since recovered. Also, 158 correctional officers who work at the jail are currently positive for COVID-19. One officer has died of the disease, the sheriff’s office said.

While Kennelly ordered new social distancing provisions, he once again denied other relief sought by the plaintiffs, including ordering the release of medically vulnerable detainees due to the pandemic. Kennelly wrote that detainees have recourse for such relief in state court — where inmates can ask for an emergency review of their bond conditions — and that it would not be appropriate for a federal judge to intervene. “The bottom line is that the plaintiffs have not shown that the bond reduction remedy offered by the state courts is any less effective than a federal remedy,” Kennelly wrote.

The injunction will likely remain in place until coronavirus is no longer a threat to spread among the jail population, the judge said. “Under ordinary circumstances, there is nothing constitutionally inappropriate about housing detained persons in groups and allowing them to come into contact with each other,” Kennelly wrote. “Currently we are not living in ordinary circumstances ... but once matters return to something approaching normal, it may be appropriate to loosen the requirements of the injunction.”...

Locke Bowman, an attorney for the plaintiffs, said Monday the ruling reflects that Kennelly “recognizes that the special circumstances of this pandemic” require the sheriff to take every reasonable precaution to limit the spread of the disease in the jail. “Our prayer is that this decision has meaningful effects on the lives and the safety of the men and women confined to the jail,” Bowman said.

Last week, Kennelly heard detailed testimony from experts on both sides of the issue. The assistant director of Cook County Jail testified that more than 175 tiers in the sprawling facility have been transitioned to single-cell housing, officials had spray painted “X’s” on the floors to try to keep detainees 6 feet apart, and inmates were being handed spray bottles to sanitize showers after use.

Attorneys for the plaintiffs, meanwhile, continued to argue that not enough is being done to enforce social distancing — such as double-occupant cells and dormitories where dozens of inmates sleep together on cots is simply impossible, and inmates are paying for it with their health. “The virus is spreading rapidly in the jail since the issuance of this court’s order, and that is not surprising: People are sleeping within 3 feet of each other, eating and using showers in close proximity to each other, and touching the same surfaces,” the plaintiffs wrote in an ongoing request for a preliminary injunction....

As of Friday, the inmate population at Cook County Jail had dipped to just below 4,155 — its lowest mark in decades.

April 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

SCOTUS dismisses NYC Second Amendment case as moot (and Justice Alito dismisses public safety claims with gun rights at issue)

The Supreme Court resolved a closely watched Second Amendment case this morning, in a manner that is sure to be disappointing to Second Amendment fans.  The Court's two-page per curiam opinion in New York State Rifle and Pistol Association v. City of New York, No. 18–280 (S. Ct. Apr. 27, 2020) (available here), starts this way:

In the District Court, petitioners challenged a New York City rule regarding the transport of firearms.  Petitioners claimed that the rule violated the Second Amendment.  Petitioners sought declaratory and injunctive relief against enforcement of the rule insofar as the rule prevented their transport of firearms to a second home or shooting range outside of the city. The District Court and the Court of Appeals rejected petitioners’ claim.  See 883 F. 3d 45 (CA2 2018).  We granted certiorari. 586 U. S. ___ (2019).  After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint.  App. 48.  Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot.

Justice Kavanaugh issued a two-paragraph concurrence that concludes this way: "I share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court."

Justice Alito, joined entirely by Justice Gorsuch and mostly by Justice Thomas, authored a 31-page dissent. Justice Alito not only disputes the claim that the petitioners' claims are moot, but he also explains why he thinks it "is not a close question" on the merits "that the City ordinance violated the Second Amendment."  Second Amendment fans will like a lot of what Justice Alito has to say, but I think criminal justice fans will want check out how Justice Alito is quick to dispute the claims made by NYPD Inspector Andrew Lunetta in an affidavit explaining why the NYC law was "necessary to address public safety concerns." 

Justice Alito spend four pages explaining why he disputes and discounts and ultimately dismissed the public safety assertions of a 30-year veteran of the New York Police Department.  He calls some of what the police official asserted "not relevant," and says that other statements "actually undermine the City’s public safety rationale."  On another front, he states the NYPD Inspector is making a "strange argument" and call another claim "dubious on its face"  and yet another "more than dubious."  Justice Alito concludes his analysis with this sentence: "The City’s public safety arguments were weak on their face, were not substantiated in any way, and were accepted below with no serious probing." 

Though I know that this is just wishful thinking, I sure hope Justice Alito's eagerness to question, dissect and dispute claims made by police — and prosecutors and others who make all sort of debatable claims what is "necessary to address public safety concerns" — will extend to cases involving assertions by individuals of claims under other Amendments like the Fourth and Fifth and Sixth and Eighth.  But I fear only Second Amendment claims lead Justice Alito to question how government officials seek to leverage claims of what public safety makes necessary.

April 27, 2020 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (0)

A dozen GVRs based on Ramos (with Justice Alito always commenting along the way, and Justice Thomas dissenting in a few)

Of criminal justice interest on this order list released by the Supreme Court this morning are a series of orders sending cases back to lower courts for reconsideration in light of the Court's unanimous juries ruling last week in Ramos v. Louisiana (basics here).  I count 12 total cases being remained, nearly all from Louisiana and one from Oregon.  Here is how the first of these orders reads:

The petition for a writ of certiorari is granted.  The judgment is vacated, and the case is remanded to the Court of Appeal of Louisiana, First Circuit for further consideration in light of Ramos v. Louisiana, 590 U. S. ___ (2020).  Justice Alito, concurring in the decision to grant, vacate, and remand: In this and in all other cases in which the Court grants, vacates, and remands in light of Ramos v. Louisiana, I concur in the judgment on the understanding that the Court is not deciding or expressing a view on whether the question was properly raised below but is instead leaving that question to be decided on remand.  Justice Thomas would deny the petition for a writ of certiorari.

Notably, this comment by Justice Alito appears with every remand order, but Justice Thomas indicates he would deny the petition in only five of the twelve cases.  (I would guess that the five cases that Justice Thomas would deny are in a distinct procedural posture from the other seven.)

Prior related posts:

April 27, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

April 26, 2020

The latest "official" (and hinky?) COVID numbers from the federal Bureau of Prisons

BOP's COVID-19 Update page, as of April 26, has this report of the latest data on "COVID -19 Cases":

As of 04/26/2020, there are 799 federal inmates and 319 BOP staff who have confirmed positive test results for COVID-19 nationwide. Currently, 385 inmates and 124 staff have recovered. There have been 27 federal inmate deaths and 0 BOP staff member deaths attributed to COVID-19 disease....

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 1,576 inmates on home confinement; an increase of 55.2 percent.

As regular reader know, I have previously expressed concern that these "official" numbers are not a full reflection of the "facts on the ground." And a couple of press pieces this weekend highlight why BOP representations may not always be spot on:

From Forbes, "The Federal Bureau Of Prisons’ 'List' Has Caused Confusion In Courts And Prisons"

From the Marshall Project, "Few Federal Prisoners Released Under COVID-19 Emergency Policies"

Somewhat encouragingly, this press release from Senator Dick Durbin's office indicates that there is a bipartisan effort to review the work of BOP and DOJ in this arena:

Following the Department of Justice (DOJ) Inspector General’s (IG) decision to assess whether facilities housing Bureau of Prisons (BOP) inmates are complying with available guidance and best practices regarding preventing, managing, and containing potential COVID-19 outbreaks, U.S. Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) requested that DOJ Inspector General (IG) Horowitz’s review also include the implementation of relevant legislative authorities and Attorney General directives giving BOP authority to transfer at-risk inmates to home confinement, including the recently-enacted CARES Act and the First Step Act, landmark prison reform legislation authored by Grassley and Durbin.

“We are concerned that BOP is not fully and expeditiously implementing relevant statutory authority and directives from the Attorney General.  We are also concerned about how closely BOP is following CDC guidance or taking other preventive measures to adequately protect BOP staff and inmates from the spread of COVID-19,” the Senators wrote.  “We also worry that BOP is significantly underestimating the rate of COVID-19 infection in BOP facilities because BOP has not yet conducted the number of tests on staff or inmates appropriate for facilities where a highly contagious virus can be easily spread.”

Full text of the letter from Senators Durbin and Grassley is available here.

April 26, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Reviewing some more national and local accounts of (mostly declining) crime rates during a pandemic

In this post last week, I complained about a Bloomberg headline blaring that "Some Crimes Are Spiking in America’s Major Cities," even though the bulk of the data reviewed in the article detail that crime was down considerably in a number of cities.   Today I can flag this recent CBS News piece that reviews mostly positive crime news with a very positive heading "Miami goes seven weeks without a homicide for first time since 1957."  Here are excerpts:

From February 17 until April 12 of this year — a total of seven weeks and six days — Miami had no reported homicides, according to police. In 1957, the city went 9 weeks and 3 days without any reported homicides. In 1960, a period of 6 weeks and 5 days passed without a homicide.  According to the Miami police, other crimes have also decreased.  The department said the decrease has extended to domestic violence calls.  But Miami Police Chief Jorge Colina told The New York Times he is concerned incidents of domestic violence and child abuse may be underreported during the order. 

Crime is also down in Baltimore since Maryland issued its own stay-at-home order, CBS Baltimore reports. Although criminal incidents in the city still continue on a daily basis, assault, carjacking, robbery and shootings have all gone down since the order was implemented.  When compared to the same time last year, common assaults in Baltimore went down 34%, aggravated assaults went down 17%, and shootings dropped by 8%.

Los Angeles similarly reported that violent crime and property crimes are down compared to last year, according to CBS Los Angeles.  Within a 9.73% drop in violent crime overall, homicides in particular were down 21%.

The same, unfortunately, cannot be said of Chicago. Despite a stay-at-home order in the city, robberies and shootings were up in the last week, according to CBS Chicago.  Police responded to 19 shootings Tuesday night, six of which were homicides.  That means shootings were up 42% from the same week last year, according to data analyzed by the station.  "We're fighting the pandemic, and we're fighting the epidemic," said Tony Raggs with the Alliance of Local Service Organizations.  "The epidemic being violence."

In Los Angeles, the drop in violent crime has been marred by an increase in domestic violence calls.  According to Los Angeles County Sheriff Alex Villanueva, deputies responded to about 8% more domestic violence calls between mid-March and mid-April, when compared to last year.

A quick search of headlines via Google news produces similar crime tales, mostly positive but not entirely, from places other than big cities.  Here is a sampling:

From upstate Florida: "Coronavirus: Crime in Volusia, Flagler and St. Johns edges down during quarantine"

From central Kentucky: "Increase in violence in Louisville another deadly side effect of COVID-19"

From downstate Missouri: "Crime rates see slight dip during COVID-19 quarantine: Vehicles continue to be rifled for cash, valuables"

From upstate New York: "Shutdown leads to decrease in crime"

From central Rhode Island: "Violent crime in Providence down 53% during pandemic"

From eastern Texas: "Crime rates in Texarkana are steady due to COVID-19"

From central Wisconsin: "Crime Trends Change During COVID-19 Restrictions"

Prior related posts:

April 26, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (2)