Sentencing Law and Policy

Can the coronoavirus finally get Ohio's bipartsan criminal justice reforms over the finish line?

The question in the title of this post is prompted by this new Fox News piece headlined "Ohio lawmakers hope for bipartisan reform of prison system stressed by COVID-19." Here are excerpts from a long piece:

Ohio lawmakers, lobbyists and researchers of various political stripes are finding a common cause in prison reform.  Bipartisan efforts to reform the troubled system have preceded the outbreak of COVID-19, but the virus has thrown the need for change into stark relief.

Across Ohio’s prison system, more than 4,300 people have tested positive for COVID-19 and at least 40 inmates and two staff members have died.  The Ohio Department of Rehabilitation and Correction (ODRC) has a current inmate population of nearly 50,000, about 10,000 above capacity.  Already cramped living conditions have been exacerbated and stressed by a virus that has forced 39,000 inmates into quarantine, according to ODRC data.

The prison system has long been scrutinized by the left for its overcrowding problem.  Now, with the system wracked by a deadly virus, conservative lawmakers are turning a critical eye to the status quo. “When you have organizations across the political and ideological spectrum saying, oftentimes, identical things about mass incarceration – it makes people take notice,” said Gary Daniels, a lobbyist with the ACLU of Ohio....

Two such displays are House Bill 1 and Senate Bill 3, which would allow for intervention in lieu of conviction and reform drug sentencing laws, respectively, The bills contain changes widely agreed upon as common-sense reforms to Ohio's criminal justice system. Both would put fewer people behind bars for minor criminal infractions, allowing for rehabilitation and community monitoring for crimes that don’t merit incarceration....

Still, bipartisan acknowledgment of a problem doesn’t always prompt bipartisan legislative action. Solutions can languish in the statehouse for months while lawmakers debate the finer points. Sometimes party lines won’t be moved....

Cooperation between think tanks and policy advocacy organizations can be a prelude to lawmakers taking up a cause in committee. Rep. Diane Grendell, a Republican lawmaker from northern Ohio and former Court of Appeals judge, sits on the Ohio House Criminal Justice committee and anticipates seeing prison reform enacted reasonably soon. “We have failed in our prison system,” Grendell said. “We have more prisoners than we have jails for, we keep passing more and more laws, we have to really clean it up. And I think all sides agree on that. We just have too many people in prisons.”...

The Buckeye Institute has long lobbied for fiscally conservative policies.  Recently, those policies have included criminal justice reform like S.B. 3. Lawson said prisons are the state’s third-largest budget item behind Medicaid and education. The Buckeye Institute has backed prison reform bills alongside liberal groups like Policy Matters Ohio and the libertarian Americans for Prosperity....

Ohio Rep. Erica Crawley, a Democrat from southeastern Columbus, isn’t as hopeful about a new era of bipartisanship in Ohio, though she does recognize the likelihood of criminal justice reform. “The pandemic has really brought those concerns and conversations to the forefront,” she said. “… We are having a really substantive conversation about rehabilitation. Obviously, we can’t lock inmates up and get out of this drug problem.”

For years, Ohio has been at the center of the nation’s opioid epidemic, with the state prison and county jail systems bearing the brunt of the resulting increase in incarceration.... Crawley said current reform efforts are good, but don’t go far enough. She said the bills under consideration wouldn’t do enough to mitigate the prison population enough to matter if the state were struck with a future pandemic.

“Right now, we have over 15,000 inmates who are considered low-level, nonviolent offenders,” Crawley said. “A lot of those are drug convictions. S.B. 3 would still allow people to be incarcerated for small amounts of drugs.  Until we have consensus and local court policy guidelines, we’re going to continue to see the same problems. If we have another pandemic, we’re going to be in the same position.”

I want to be optimistic that Ohio's General Assembly might get both House Bill 1 and Senate Bill 3 to the desk of the Governor in short order.  But these bills have been "stuck" in the Ohio GA for quite some time, and Ohio's prison population has been way over capacity for even longer.  And despite a lot of public policy groups on both sides of the aisle supporting reform, many of the anti-reform usual suspects (e.g., prosecutors and police) have so far kept these relatively modest proposed reforms from becoming law.  I sure want to believe that the COVID crisis will get the Ohio GA to finally get these reforms enacted, but I never count any sentencing reform chickens before they are fully hatched.

"Decentralizing Clemency: Decentralizing the Commutation Power to Invigorate Sentence Reduction"

The title of this post is the title of this new paper recently posted to SSRN and authored by Riley Kane, a recent graduate The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by the Drug Enforcement and Policy Center.  Most of the papers in this series have come from the marijuana seminar I teach, and I blog about these papers in posts like this over at my Marijuana Law, Policy & Reform blog.  But this paper emerged from my sentencing class last fall, and the topic has only become more timely and important in recent months.  Here is this paper's abstract:

Reforming sentencing and reducing prison overcrowding requires a focus on the future to ensure just punishments and the past to re-evaluate harsh punishments from the ‘tough on crime’ era.  This paper focuses on ending those past wrongs.  Executive clemency is sometimes discussed as a method for addressing harsh punishments, but there are only so many governors and Presidents.  This paper proposes amending the Ohio Constitution to grant the elected county prosecutors a commutation power subject to veto by the governor.  This would decentralize clemency and create a new, potentially system-reshaping tool to address harsh sentences and empower reform-minded prosecutors.  The paper additionally discusses other methods to expand clemency and favors adopting the novel constitutional amendment in addition to other reforms for maximum impact.

Another robust week for COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

In recent posts (here and here and here and here and here and here and more linked below), I have highlighted many, many rulings involving COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) that I have found via Westlaw.  I have received positive feedback concerning these prior posts from various quarters, and so I will continue these periodic posts as we continue to see these kinds of grants.  (And, as I have said often, my Westlaw listings likely do not represent all sentence reductions being granted by the federal courts these days.) 

Though rulings for Friday, May 8 do not yet appear on Westlaw, this week has already brought an extra long list of new grants of sentence reductions (a few of which were from last week but just recently showed up on Westalw):  

United States v. Hansen, No. 17 CR 50062, 2020 WL 2219068 (ND Ill. May 7, 2020)

United States v. Amarrah, No. 17-20464, 2020 WL 2220008 (ED Mich. May 7, 2020)

United States v. Howard, No. 4:15-CR-00018-BR, 2020 WL 2200855 (ED NC May 6, 2020)

Casey v. United States, No. 4:18-cr-4, 2020 WL 2297184 (ED Va. May 6, 2020)

United States v. Quintero, No. 08-CR-6007L, 2020 WL 2175171 (WDNY May 6, 2020)

United States v. Reid, No. 17-cr-00175-CRB-2, 2020 WL 2128855 (ND Cal. May 5, 2020)

United States v. Moskowitz, No. 11-CR-793-1 (WFK), 2020 WL 2187770 (EDNY May 5, 2020)

United States v. Pabon, No. 17-165-1, 2020 WL 2112265 (D Mass. May 4, 2020)

United States v. Echevarria, No. 3:17-cr-44 (MPS), 2020 WL 2113604 (D Conn. May 4, 2020)

United States v. Early, No. 09 CR 282, 2020 WL 2112371 (ND Ill. May 4, 2020)

United States v. Ardila, No. 3:03-cr-264 (SRU), 2020 WL 2097736 (D Conn. May 1, 2020)

United States v. Soto, No. 1:18-cr-10086-IT, 2020 WL 2104787 (D Mass. May 1, 2020)

United States v. Kelly, No. 3:13-CR-59-CWR-LRA-2, 2020 WL 2104241 (SD Miss. May 1, 2020)

United States v. Fischman, No. 16-cr-00246-HSG-1, 2020 WL 2097615 (ND Cal. May 1, 2020)

United States v. Norris, No. 7:19-cr-36-BO-2, 2020 WL 2110640 (ED NC Apr. 30, 2020)

As I have said before, It is heartening to see these types of rulings from coast-to-coast and lots of places in-between.  I am hopeful, whenever life calms down a bit, that I might be able to assess and analyze in some way whether there are some broader trend and themes to be found in these grants (as well as in denials of these motions).  For now though, I have to be content with just listing the grants and being pleased there continue to be grants to list.

Prior recent related posts since lockdowns:

• Notable recent (pre-COVID) grants of sentence reductions from coast to coast using 3582(c)(1)(A) ... as FAMM urges thousand more filings in response to coronavirus
• Documenting early federal court COVID jurisprudence in response to various release requests from federal defendants and inmates 
• A few (too few) recent COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• Pleased to see growing number of COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• A few more COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• Still more COVID-influenced grants of sentence reductions using 3582(c)(1)(A), with waivers of exhaustion/waiting period 
• Additional COVID-influenced grants of federal sentence reductions using 3582(c)(1)(A) 
• Another round of recent COVID-influenced grants of federal sentence reductions using 3582(c)(1)(A)
• A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns
• Still more of the ever-growing number of COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

Yet another Texas execution postponed, though purportedly not for COVID reasons

Texas had an execution scheduled for next Wednesday, but no longer as explained in this local article: "An East Texas man who asserts that he is intellectually disabled has won a reprieve from his execution scheduled for next week for a 2007 shootout that left two sheriff’s officers dead." Here is more:

Randall Wayne Mays was set to receive lethal injection May 13 for the shootings at his Henderson County home.  In an order issued Thursday, the Texas Court of Criminal Appeals issued an execution stay and remanded Mays’ case to the trial court in Henderson County for review of his intellectual-disability claim.

Mays’ attorneys say the 60-year-old suffers from delusions and thinks Texas wants to execute him over a renewable energy design he believes he created....  Mays had previously won reprieves in October and in 2015.

Six other executions scheduled in Texas for earlier this year have been postponed because of the novel coronavirus outbreak statewide.  Besides Mays' intellectual-disability claim, his attorneys had also asked the appeals court for an execution stay because of the pandemic. The appeals court did not address that request in its order.

The next execution in Texas is scheduled for June 16.

Though this reprieve was not based on the COVID pandemic, I wonder if the Texas Court of Criminal Appeals was just a little bit more willing to grant the defendant his requested relief because of the many challenges posed to courts and corrections officials these days. I suspect that, even when courts and litigants do not make express reference to COVID concerns, they still cannot help but look at all criminal justice issues through a somewhat different lens.

With Texas starting to open up, it will be especially interesting to see if the state's two scheduled excutions for mid June and early July go forward. And, in the meantime, Missouri has an execution schedule for May 19, and it seems that the state is seriously prepared to move forward (see, e.g., press reports from Mother Jones and the St. Louis Dispatch).

Some prior related capital COVID posts:

• "Appeals Court Delays Texas Execution Due To Coronavirus Outbreak" 
• Texas Court of Appeals stays a second execution for 60 days due to COVID-19 
• "How Coronavirus is Disrupting the Death Penalty" 
• Yet another Texas execution postponed due to coronavirus
• As Ohio and Tennessee delay more executions, might "incremental reopening" in Texas lead to resumption of lethal injections? 
• Texas postpones a sixth execution due to coronavirus 
• Though delaying a number of executions, COVID-19 takes the life of death row prisoner in Arizona 

Book-ending the work week with another round of recent pieces on our current COVID prison state

In this post on Monday, I started the work week with extended round up of more than a dozen notable stories and pieces of commentary on the state of incarceration nation as the coronavirus continues to spread.  Unsurprisingly, the week has brought more good reads in this disconcerting oeuvre, and here is just a sample:

Press Coverage:

From the Associated Press, "America’s business of prisons thrives even amid a pandemic"

From Colorado Public Radio, "Prisoners Write About COVID-19: ‘Who Cares When The Disposable Die?’"

From National Public Radio, "Prisons, Jails And The Pandemic: How Coronavirus Is Affecting The Incarcerated"

From Reason, "Lawmakers Call Out Cuomo and Other Governors for Letting Prisoners Die of COVID-19"

From Slate/The Marshall Project, "COVID-19 Has Trapped Thousands of Parolees In Prison: They’ve been cleared to go home, yet they’re stuck in prison as the virus spreads."

From The Wichita Eagle, "‘I feel like I’m in a tomb.’ In Kansas prisons, COVID-19 kindles festering problems"

Commentary:

By Michael Cindrich, "Want to stop coronavirus spread in prisons, jails and detention centers? Let some inmates go."

By Tana Ganeva, "America’s Crowded Prisons Are About To Create A Coronavirus Crisis In Rural America"

Marc Levin and Kelli Rhee, "Don’t ignore prisons and jails in COVID-19 response"

By Norman Reimer, Jonathan Smith, Kevin Ring and Steven Salky, "Reducing the Spread of COVID-19 Through the Power to Reprieve"

By Alice Speri, "Mass Incarceration Poses A Uniquely American Risk In The Coronavirus Pandemic"

By Wesley Williams, "The Cruel Irony of Social Distancing When You’re Stuck in Solitary"

Always pleased to see more opposition to jail time and support for retroactive decarceral reforms ... and hoping to see it in all settings for all people

This new Austin American-Statesman article, headlined "Texas Supreme Court orders release of jailed salon owner who illegally reopened," highlights interesting developments and notable statements in the litigation surrounding a high-profile COVID-related case in the Lone Star State.  Here are the details:

The Texas Supreme Court on Thursday ordered Dallas County officials to free salon owner Shelley Luther from jail while its nine judges, all Republicans, weigh an appeal challenging her incarceration as improper.

The emergency order directed county officials to release Luther, who reopened her salon despite state restrictions, on a personal bond with no money required, “pending final disposition of her case.”  County officials also were ordered to file a response to the challenge by 4 p.m. Monday, the same day Luther’s weeklong sentence for contempt of court would have ended.

The order came shortly after Texas Gov. Greg Abbott, seeking to end a political firestorm over Luther’s jailing, announced Thursday that local officials will be prohibited from jailing Texans for violating any of his numerous coronavirus-related executive orders.  “Throwing Texans in jail who have had their businesses shut down through no fault of their own is nonsensical, and I will not allow it to happen,” Abbott said in a statement.  “That is why I am modifying my executive orders to ensure confinement is not a punishment for violating an order.” Abbott said this latest executive order, “if correctly applied,” should free Luther....

Luther, who opened Salon à la Mode nearly two weeks ago, was found in contempt for ignoring a court order to close from state District Judge Eric Moyé, who sentenced her to seven days in Dallas County jail Tuesday and hit her with a $7,000 fine.

The petition challenging Luther’s incarceration, filed Wednesday by lawyers who included state Rep. Briscoe Cain, R-Deer Park, argued that she was exercising her right to run a business in ways that protected customer health by, among other steps, requiring stylists to wear face coverings, seating patrons 6 feet apart and sanitizing regularly touched surfaces. “There is no evidence that her business posed any greater risk to the public than businesses being allowed to operate, such as movie theaters, day cares, and home improvement stores,” the Supreme Court petition said.

The fine and jail sentence came as barber shops and hair salons were allowed to reopen Friday under an executive order issued Tuesday by Abbott. Under Abbott’s previous stay-at-home order, issued in March, salons and other nonessential businesses were required to close....

On Wednesday, Abbott said jail time should be the last resort for those who disobey his executive order. But after receiving pushback from some conservative activists and lawmakers, who argued that his comments didn’t go far enough in criticizing government overreach, Abbott modified his orders Thursday.

State law sets the punishment for violating disaster-related executive orders at a fine of up to $1,000 and up to 180 days of jail time.

Abbott’s latest executive order suspended “all relevant laws” that allow jail time “for violating any order issued in response to the COVD-19 disaster.” The new order also allowed salons and barber shops to open immediately, instead of Friday, and made the change retroactive to April 2 to nullify any local regulations that could form the basis of jail time for business owners who violated a shutdown order.

Republicans took to Twitter to praise Abbott’s action Thursday. “I am pleased to see @GregAbbott_TX has removed jail as a punishment for violating exective orders.  Some local officials have been reckless, imprisoning women for wanting to work to put food on the table for their children,” said state Rep. Matt Shaheen, R-Plano....

“Gov. Abbott, throwing Texans in jail whose businesses shut down through no fault of their own is wrong. Thank you for admitting that,” said state Rep. Mike Lang, R-Granbury.

As many have noted in a variety of settings, there is a particularly ridiculous irony to enforcing social distancing rules by sending a person into a carceral environment in which social distancing is all but impossible.  But this story is a useful reminder that any number of judges, even in the midst of a pandemic, are still inclined to use jail time in what one Texas official calls a  "reckless" manner.  It is great to see criticism of the use of jail in this particular instance, but there are lots and lots and lots of examples of jail being used excessively.  I sure hope state Rep. Matt Shaheen and the many others speaking out in this case (including the Texas Attorney General and Senator Ted Cruz and many others) will keep speaking out against reckless jail sanctions.

Similarly, this story also shows that some Texas officials strongly believe that, upon recognizing that a problematic law has led to problematic incarceration, the law should be changed and that change should be given retroactive effect to free those subject to problematic incarceration.  I sure hope state Rep. Mike Lang and others will keep speaking up in support or decarceral legal reforms and ensure that any and all such reforms always get full retroactive effect to free those subject to laws that have been reformed for the better.

Of course, I am not at all confident that concern for poor use of incarceration and support for reparative efforts will be expressed in all setting from all these Texas officials or others.  Indeed, this Houston Chronicle report notes that "In April, two Latina women in Laredo were arrested and jailed for defying the lockdown by running nail salons out of their homes. No state officials intervened in their cases."

"Justice Dept dropping Flynn’s criminal case"

The title of this post is the title of the notable news in this new AP report.  Here is the first part of the article:

The Justice Department on Thursday said it is dropping the criminal case against President Donald Trump’s first national security adviser, Michael Flynn, abandoning a prosecution that became a rallying cry for Trump and his supporters in attacking the FBI’s Russia investigation.

The move is a stunning reversal for one of the signature cases brought by special counsel Robert Mueller.  It comes even though prosecutors for the last three years had maintained that Flynn had lied to the FBI about his conversations with the Russian ambassador in a January 2017 interview.  Flynn himself admitted as much, and became a key cooperator for Mueller as he investigated ties between Russia and the 2016 Trump campaign.

In court documents being filed Thursday, the Justice Department said it is dropping the case “after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information.”  The documents were obtained by The Associated Press.  The Justice Department said it had concluded that Flynn’s interview by the FBI was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn” and that the interview on January 24, 2017 was “conducted without any legitimate investigative basis.”

The U.S. attorney reviewing the Flynn case, Jeff Jensen, recommended the move to Attorney General William Barr last week and formalized the recommendation in a document this week.  “Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case,” Jensen said in a statement. “I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed.”

The decision is certain to be embraced by Trump, who has relentlessly tweeted about the case and last week pronounced Flynn “exonerated,” and energize supporters who have taken up the retired Army lieutenant general as something of a cause celebre.  But it may also add to Democratic concerns that Attorney General William Barr is excessively loyal to the president, and could be a distraction for a Justice Department that for months has sought to focus on crimes arising from the coronavirus.

The Justice Department’s action comes amid an internal review into the handling of the case and an aggressive effort by Flynn’s lawyers to challenge the basis for the prosecution.  The lawyers cited newly disclosed FBI emails and notes last week to allege that Flynn was entrapped into lying when agents interviewed him at the White House days after Trump’s inauguration.  Though none of the documents appeared to undercut the central allegation that Flynn had lied to the FBI, Trump last week pronounced him “exonerated

The decision is the latest dramatic turn in a years-old case full of twists and turns.  In recent months, his attorneys have leveled a series of allegations about the FBI’s actions and asked to withdraw his guilty plea.  A judge has rejected most of the claims and not ruled on others, including the bid to revoke the plea.

Prior related posts:

• With guilty plea entered, former national security director Michael Flynn now faces (easy?) sentencing 
• Special Counsel says non-incarceration sentence for Michael Flynn is "is appropriate and warranted" 
• Michael Flynn in sentencing memo requests probation "not to exceed one year ... along with 200 hours of community service." 
• Federal prosecutors, now soured on Michael Flynn, note that "similarly situated defendants have received terms of imprisonment"

"Voting in Jails"

The title of this post is the title of this notable new report by Nicole Porter at The Sentencing Project. Here is the report's overview:

Felony disenfranchisement laws bar millions of Americans from voting due to their felony conviction.  Among those excluded are persons in prison, those serving felony probation or parole, and, in 11 states, some or all persons who have completed their sentence.  While these disenfranchisement laws have been closely documented for years by advocacy organizations, academics, and lawmakers, the de facto disenfranchisement of people legally eligible to vote in jails has received less attention.

In local jails the vast majority of persons are eligible to vote because they are not currently serving a sentence for a felony conviction.  Generally, persons are incarcerated in jail pretrial, sentenced to misdemeanor offenses, or are sentenced and awaiting transfer to state prison.  Of the 745,0001 individuals incarcerated in jail as of 2017 nearly two-thirds (64.7%), or 482,000, were being held pretrial because they had not been able to post bail.  Of the 263,000 who were serving a sentence, the vast majority had been convicted of a misdemeanor offense that does not result in disenfranchisement.

Despite the fact that most persons detained in jail are eligible to vote, very few actually do.  Jail administrators often lack knowledge about voting laws, and bureaucratic obstacles to establishing a voting process within institutions contribute significantly to limited voter participation. Indeed, acquiring voter registration forms or an absentee ballot while incarcerated is challenging when someone cannot use the internet or easily contact the Board of Elections in their community.  In addition, many persons in jail do not know they maintain the right to vote while incarcerated, and there are few programs to guarantee voting access.

Problems with voting in jail disproportionately impact communities of color since almost half (48%) of persons in jail nationally are African American or Latino.  Other racial groups, including Native Americans and Asians, comprise about 2% of the jail population, or 13,000 persons as of 2017.

In recent years, some jurisdictions have adopted policies and practices to ensure voting access for persons incarcerated in local jails because of initiatives developed by jail leadership and advocacy organizations.  This report examines six programs designed to expand voting access for eligible incarcerated citizens.  The success and expansion of these efforts will improve democracy.

Federal prison population drops below 170,000 for first time in nearly two decades

I have been making a habit on Thursdays, which is when the federal Bureau of Prisons updates its general population numbers, of highlighting notable aspects of the newest federal prison population data (as evidenced in prior posts here and here).   I have highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  We are now into May, and the new numbers at this webpage shows an even bigger weekly decline in total number of federal inmates as calculated by BOP: since last week, the population has gone down from 170,435 as of April 30 to now a total of 169,080 as of May 7, 2020.

Notably, the BOP's COVID-19 Update page now reports that "the BOP has placed an additional 2144 on home confinement."   That amounts to an increase of roughly 339 more inmates placed on home confinement since last week, which would seemingly account for only about a quarter of this week's overall population decrease.  These data still further reinforce my sense that a reduced inflow of prisoners — due, I would guess, to many sentencings and reportings to prisons being delayed — accounts for the lion's share of the prison population decline in recent months.

It will be interesting to continue to watch in the weeks and months ahead whether the federal prison population will continue to decline in this way.  But the decline below 170,000 as the total federal prison population already feels historic, as Fiscal Year 2002 was the last time the federal prison population checked in at the end of the year below that threshold.  (And, if were to focus on the federal imprisonment rate, we are now on par with our federal incarceration levels from the mid 1990s.)

These federal prison data are heartening for those of us who have long believed, in the words of then-Attorney General Eric Holder, "that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason."  But, in these somber and disconcerting days, I feel compelled to flag just some of many recent headlines that document, yet again, that there is still as lot of somber and disconcerting news coming from the federal prison system:

From The Appeal, "Death Of New Mother At Federal Prison Hospital Prompts Calls For Accountability In Texas"

From Cleveland.com, "Ohio man becomes eighth Elkton federal prison inmate to die of coronavirus"

From Forbes, "Minimum Security Inmates Locked In Cells For Quarantine Are At Breaking Point"

From NJ.com, "N.J. federal prison is becoming a 'deathtrap,’ ACLU says, seeking release of vulnerable inmates"

From the Santa Barbara Independent, "Lompoc Prison Reports Second COVID-19 Death"

SCOTUS dings Ninth Circuit panel for its "takeover of the appeal" of convictions for encouraging illegal immigration

I had not been following that closely the Supreme Court's consideration of the immigration case examining the proper reach of 8 U.S.C. §1324, United States v. Sineneng-Smith, No. 19-67 (S. Ct. May 7, 2020) (available here). But the Court's opinion in the case this morning caught my attention because the Justices decided not to decide the merits and instead decided to assail the Ninth Circuit's handing of the case.  Justice Ginsburg's opinion for the Court gives an account of how the Ninth Circuit panel solicited amicus briefs of the case, and then concludes this way: 

No extraordinary circumstances justified the panel’s takeover of the appeal.  Sineneng-Smith herself had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others.  Electing not to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother’s plea to her alien grandchild to remain in the United States. 910 F. 3d, at 483–484.  Nevermind that Sineneng-Smith’s counsel had presented a contrary theory of the case in the District Court, and that this Court has repeatedly warned that “invalidation for [First Amendment] overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’” United States v. Williams, 553 U. S. 285, 293 (2008) (quoting Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 39 (1999)).

As earlier observed, see supra, at 4, a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.

For the reasons stated, we vacate the Ninth Circuit’s judgment and remand the case for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties.

Justice Thomas concurs in an opinion that starts this way:

I agree with the Court that the Ninth Circuit abused its discretion in reaching out to decide whether 8 U.S.C. §1324(a)(1)(A)(iv) is unconstitutionally overbroad.  In my view, however, the Court of Appeals’ decision violates far more than the party presentation rule.  The merits of that decision also highlight the troubling nature of this Court’s overbreadth doctrine.  That doctrine provides that “a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”  United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449, n. 6 (2008)).  Although I have previously joined the Court in applying this doctrine, I have since developed doubts about its origins and application.  It appears that the overbreadth doctrine lacks any basis in the Constitution’s text, violates the usual standard for facial challenges, and contravenes traditional standing principles.  I would therefore consider revisiting this doctrine in an appropriate case.

SCOTUS unanimously reverses "Bridgegate" convictions as involving conduct not covered by federal property fraud statute

The US Supreme Court handed down a unanimous opinion this morning in Kelly v. United States, No. 18-1059 (S. Ct. May 7, 2020)  (available here), the high-profile political fraud case often called "Bridgegate."  Here is how Justice Kagan's short opinion for the full Court gets started:

For four days in September 2013, traffic ground to a halt in Fort Lee, New Jersey.  The cause was an unannounced realignment of 12 toll lanes leading to the George Washington Bridge, an entryway into Manhattan administered by the Port Authority of New York and New Jersey.  For decades, three of those access lanes had been reserved during morning rush hour for commuters coming from the streets of Fort Lee. But on these four days — with predictable consequences — only a single lane was set aside.  The public officials who ordered that change claimed they were reducing the number of dedicated lanes to conduct a traffic study.  In fact, they did so for a political reason — to punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid.

Exposure of their behavior led to the criminal convictions we review here. The Government charged the responsible officials under the federal statutes prohibiting wire fraud and fraud on a federally funded program or entity.  See 18 U.S.C. §§1343, 666(a)(1)(A). Both those laws target fraudulent schemes for obtaining property.  See §1343 (barring fraudulent schemes “for obtaining money or property”); §666(a)(1)(A) (making it a crime to “obtain[] by fraud . . . property”).  The jury convicted the defendants, and the lower courts upheld the verdicts.

The question presented is whether the defendants committed property fraud.  The evidence the jury heard no doubt shows wrongdoing — deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct.  Under settled precedent, the officials could violate those laws only if an object of their dishonesty was to obtain the Port Authority’s money or property.  The Government contends it was, because the officials sought both to “commandeer” the Bridge’s access lanes and to divert the wage labor of the Port Authority employees used in that effort.  Tr. of Oral Arg. 58.  We disagree.  The realignment of the toll lanes was an exercise of regulatory power — something this Court has already held fails to meet the statutes’ property requirement.  And the employees’ labor was just the incidental cost of that regulation, rather than itself an object of the officials’ scheme.  We therefore reverse the convictions.

Some prior related posts:

• "Bridgegate" now a federal sentencing story after two former New Jersey officials convicted on all federal counts after lengthy jury deliberations
• Is the likely federal sentencing guideline range for "Bridgegate" defendants convicted last week at least 3 to 4 years in federal prison?
• You be the federal sentencing judge: how long a prison term for convicted "Bridgegate" defendants?
• Federal prosecutors seeking 3-year prison terms for "Bridgegate" defendants

Noting some new tales of the COVID-era challenges of criminal justice administration

In reviewing the news of the day, I came across a number of notable new stories about the (many) unique challenges that now arise as a global pandemic dramatically alters the administration of criminal justice.  Here are headlines and a highlight from a few of these pieces:

From The Appeal, "Covid-19 Is Creating A State Of Emergency For Incoming Public Defenders. Diploma Privilege Is The Only Solution."

The public defender system that sprung out of Gideon, however, has faced crises ranging from underfunding to staggering caseloads that make it impossible for defenders to effectively represent their clients.  Now, COVID-19 is ushering in a new crisis: several states including California as well as the District of Columbia have postponed their bar exams, while other states have enacted a provisional licensing scheme, meaning that while law school graduates may be able to work in temporary, limited capacities performing the work that Gideon mandates, they will also bear the burden of preparing for the bar.  So, what will happen to the marginalized — and Gideon’s mandate — when an entire class of public defenders cannot begin their jobs as scheduled in the fall of 2020?

From Law360, "Grand Jury Suspensions A Looming Problem For Prosecutors":

As court closures stretch on during the coronavirus pandemic, the suspension of federal grand juries is causing headaches for prosecutors by jeopardizing older cases and slowing down complex ones, requiring judges to consider how to bring the panels back.

From The Marshall Project, "A Dangerous Limbo: Probation and Parole in the Time of COVID-19":

When people are accused of violating their probation or parole, they often have to wait behind bars for a series of hearings and procedural hurdles to determine if they are guilty and what the consequences will be.  Think of a criminal trial, but less formal and with fewer constitutional protections.  Even “one day in custody can totally disrupt someone’s life to the point of almost no return,” says Michael Nail, Georgia’s commissioner of community supervision.  Now, coronavirus can make custody downright dangerous.

p>From WSYX/WTTE, "Ohio prosecutors have backlog of cases, courtrooms not expected to fully reopen until June":

Right now many victims and cases are in limbo because of the coronavirus pandemic.  Court systems all across Ohio are looking at how to handle the volume of cases that haven't been touched in weeks and new cases too. In Fairfield County, Prosecutor Kyle Witt says they've been working diligently to figure out how to give those arrested and victims their day in court.  The county's grand jury met for the first time today in weeks. "We're resuming today, we're limiting the number of people in that room. We are providing masks and gloves and social distancing," said Witt.

Discouraging confirmation of my concern that federal judges are not yet really re-thinking their sentences amidst a COVID pandemic

In this post on Monday, I highlighted Walter Pavlo's interesting Forbes piece, headlined "After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future."  In the piece, Pavlo strikes an optimistic tone about how COVID might be altering federal judicial sentencing attitudes:

Judges are going to re-think their sentences.  Their courtrooms are currently jammed with motions for compassionate release, civil rights violations by BOP, and pre-trial pre-sentencing release motions.  Center stage at these hearings are BOP conditions, its policies, its care of inmates and how it treats those employed at these institutions.  In short, federal judges are seeing firsthand how the BOP executes the sentences they impose ... and it is ugly. 

Federal judges may hold the key to real criminal justice reform because COVID-19 will make them think about the consequences that their sentences have on the lives of defendants and their families.  They will not be able to un-remember these tragic stories ... and that might be a good thing."

In response, I expressed some worry that Pavlo's perspective might be wishful thinking and I detailed a few reasons for my persistent pessimism even in pandemic times.  I also noted I was "eager to hear from persons actively involved in federal sentencing work in this COVID era about whether they think judges are already starting to 're-think their sentences'."  I was grateful to receive a lengthy email from thoughtful reader, who gave me permission to reprint part of this email:  

Thank you for all of you Covid-19 related sentencing coverage.  I was prompted to write by the post referenced above and your expression of interest in hearing from practitioners about sentencing right now and whether judges' sentencing practices are changing.  The answer is no.

You are not too pessimistic.  You are exactly right.  I've been a federal defender for about ten years.  I should be inured by now to the treatment of my clients, but seeing what is happening to them in federal prison right now -- and the utter apathy of most judges towards the situation -- is really heartbreaking.  Several pieces you have referenced capture it: our DOJ and judges have a mindless addiction to punishment.  Part of the problem is that so many of our judges are former prosecutors (and, by now, former prosecutors who grew up with the Sentencing Guidelines, so are completely invested in those Guidelines and do not even remember a time when sentences were shorter or judges made decisions without them).  Judges are very wedded to the punitive, incarceratory sentences that they impose.

[A recent] series of orders from my district really captures that (judge rejecting compassionate release and then another release request).  The judge recognizes that Covid-19 creates a dangerous situation for the defendant in prison.  But the judge just really wanted this nonviolent, fraud defendant to spend some years in a cage and he cannot let go of that desire, even if it means risking that person's life.

This relates to the point from the Cato piece you linked to earlier this week [available here]: We have known for a long time that prison conditions are bad.  Judges just accept it. And once they have come to accept it, the marginal increase in badness caused by Covid-19 is not going to be enough to move most of them.

More broadly, the reality is that if you imprison people on a regular basis, you need to construct a belief system that allows you to keep doing that.  Often, you first build it as a prosecutor and then you sustain it as a judge.  One component of that belief system tells you that whatever hardship a defendant suffers in prison is something that he caused by his own actions or something that he deserves for what he has done.  Another component tells you that in advocating/imposing harsh sentences, you are simply following "the law" (the Guidelines, the will of Congress, whatever) and you have no ultimate power over this "law," which is somehow controlled by someone else.  Those belief systems are not getting changed by one pandemic.

So what is with all the compassionate release grants? ... A few judges have been moved by the insanity of Covid-19 in prison, but I think it's a minority.  Many of these grants are on consent and are for defendants who had very little time remaining on their sentences.  In other words, judges will go along with letting you out if the prosecutor agrees you have been sufficiently punished.  And even in some of the better decisions, judges express regret that the defendants cannot be made to serve the full sentences they originally imposed.  That does not sound like long-lasting change in sentencing practices.

Sigh.

Prior recent related posts:

•  Are federal judges approaching prison sentencing differently now that they see BOP ugliness up close?
• "Decarceration in the Face of a Pandemic"

ABC News reporting "Over 5,000 corrections officers have contracted COVID-19" ... which is surely an undercount

The quoted portion of the title of this post is the headline of this new ABC News piece marking a notable grim milestone that highlights yet another consequence from a global pandemic coming to incarceration nation.  Here are excerpts:

As the novel coronavirus ravages prisons around the country, over 5,000 state and federal correctional officers have tested positive for the virus, data compiled by ABC News shows.  There have been 5,002 cases, including over 4,600 state correctional officers that have contracted the virus, with New York being the state with the most correctional officer cases.

"If you look at how it's tracked across the globe, you'll see that this thing runs through a correctional facility like a brushfire, and it doesn't stop until it runs out of people, basically," Andy Potter, the executive director of the Michigan Corrections Organization and the founder of the One Voice Initiative, told ABC News.  "We've always said we believe that we were behind the eight ball to begin with."  Potter, whose union represents over 6,000 officers in Michigan, stressed that governors weren't doing a bad job, but they could "lead a better plan of conversation and communication with those corrections front-line staff."...

Federally, over 350 officers have tested positive for the virus. Shane Fausey, the national president of the Council of Prison Locals, told ABC News that there are likely more federal cases of officers, but they aren't reported because of the lack of testing. "They're not testing everybody," Fausey said.  "As a matter of fact testing is extremely limited."

The Bureau of Prisons told ABC News that they "have developed a letter for staff who are in close contact of a COVID-19 positive individual to provide to the local health department to ensure such persons receive priority COVID-19 testing.  Because staff are typically tested in the community, we are unable to provide the total number of correctional officers that have been tested."

On the state level, testing in Michigan is also a problem, officials say. "We're struggling with getting officers tested," said Byron Osborn, president of the Michigan Corrections Organization. "We believe that the state ... [should] be proactive and kind of try to get in front of this too, so the rest of our facilities aren't impacted. We're advocating for staff to be tested."...

Another problem that has been plaguing both federal and state institutions is severe understaffing, a problem that is only amplified by the pandemic.  "The pandemic has completely overrun the system; the system wasn't operating normally," said Fausey, who represents over 30,000 officers at prisons around the country.  "Now you've completely overrun its limited staffing resources.  And that's not even including the staffing shortage we had in medical positions. We've had that for quite a few years."...

Across the country, 38 corrections officers have died due to COVID-19, according to the One Voice Initiative. In one instance of a possibly missed case, Fausey said there should be no debate as to whether or not a 39-year-old case manager at United States Penitentiary, Atlanta died due to COVID-19.  Robin Grubbs died late last month after being promoted at the facility.  The bureau stopped short of calling her death related to COVID-19, because the virus was found during the autopsy but the autopsy was incomplete, BOP said.

The union, however, said that this was a definite case of COVID-19 and it should be recognized. "Instead of saying we've lost somebody -- it's terrible, it's heartbreaking -- the bureau puts out this press release, 'Well the autopsy was inconclusive and we're not really sure how she died,'" Fausey explained.  "Why would you put out a defensive statement to all the employees that are grieving the loss of a young lady that they love dearly?  Ms. Grubbs' friends and family deserved compassion and understanding.  Robin deserved better."...

The front-line workers are the backbone of these institutions, Potter said, and they are the people who are holding facilities together and stressed that the only way that it can be solved is for corrections staff across the country to come together. "I'm telling you, if you're tracking what's going on around the United States, it's just going to get worse before it gets better," Potter said. "Just because it clears up in one facility doesn't mean it's not going to spread. We know we know how aggressive it is."

I am pleased to see this article highlight the limits of testing and the fact that stated numbers of officers infected with, and numbers dying from, COVID-19 are surely undercounts. I fear that widespread testing of prison guard would often produce a depressingly large percentage of infections as we have often seen when inmates are widely tested.

Meanwhile, I am disappointed that this article does not discuss more how modern mass incarceration, persistently overcrowded prisons, and the failure of authorities to thin prison populations have all contributed to this ever-growing public health disaster.  With far too many prisoners to manage, far too little space for social distancing, and far too little help coming from Governors and other executive officials, correctional officers and their families are yet again victimized by our country's persistent carceral cancer.

The Washington Post is also covering this beat via this recent article headlined "As virus spreads in jails and prisons, correctional officers fear for themselves and their loved ones."

REMINDER of exciting DEPC and OJPC sentencing project: "Drafting Contest: An Ohio 'Second Look' Statute"

I warned in this initial posting that I would be repeatedly promoting 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.

Effective overview of highlights (or lowlights) of latest BJS data on prisons and jail at end of 2018

I noted in this post the release of new reports and data from Bureau of Justice Statistics detailing US incarceration levels as of the end of 2018.  The folks at the Prison Policy Initiative now have this new posting on the BJS data titled "Stagnant populations and changing demographics: what the new BJS reports tell us about correctional populations."  I recommend the full piece, and the subtitle highlights its themes: "New BJS reports show that jail and prison populations remain stubbornly high despite decreasing crime rates, and point to the shifting demographics of correctional populations."  Here are excerpts:

The COVID-19 crisis is illustrating yet another danger of our overreliance on incarceration, as jails and prisons are rapidly becoming coronavirus hotspots.  As correctional facilities around the country grapple with the crisis, two new Bureau of Justice Statistics (BJS) reports, Jail Inmates in 2018 and Prisoners in 2018, provide crucial details about our nation’s correctional populations. The reports highlight the slow pace of decarceration over the past decade, the persistence of pretrial detention despite calls for reform, and the changing demographics of prisons and especially of jails....

Both of the new BJS reports boast of declining correctional populations, but a closer look at the data reveals the pace of decarceration is still far too slow.  Prisoners in 2018 reports that prison populations decreased 9% between 2008 and 2018, meaning prison populations, on average, declined by less than 1% each year.  As the nation with the highest incarceration rate in the world, such small declines represent a national failure.

The rate of decarceration in jails is similarly slow, and jail populations have even ticked up in recent years.  Although Jail Inmates in 2018 and its press release boast that the “jail incarceration rate decreased 12% from 2008 to 2018,” most of that drop happened over five years ago; the jail population barely budged between 2015 and 2018.  There were actually over 18,000 more people in jail on an average day in 2018 than in 2015 -- despite the fact that the overall crime rate declined 11% over the same period.

Even worse, the growth of jail populations over those years can largely be attributed to an increase in the number of people held pretrial.  The vast majority of people in jails have not been convicted and are simply stuck in jail waiting for their day in court, and their number has increased by 6% since 2015, while the number of people in jail who were convicted declined by 9%.  That means pretrial detention has continued to drive all of the net jail growth in recent years, despite the fact that counties around the country are reforming their bail systems to reduce pretrial incarceration. Clearly, these measures have not gone far enough.

Another key takeaway from the recent reports: There have been striking demographic shifts in jail populations and, to a lesser extent, in prison populations.  The number of women incarcerated in jails has increased, and while the women’s prison population is slowly falling, the decarceration of men in prisons continues to outpace that of women. Racial disparities remain persistent, but have actually narrowed in both prisons and jails.  Finally, we see that rural jails have grown while urban jail populations have taken more significant steps toward decarceration.

Will Joe Biden release a SCOTUS short-list and will it excite criminal justice reformers?

As revealed in this way back link, it was mid May 2016 when then-candidate "Donald J. Trump released the much-anticipated list of people he would consider as potential replacements for Justice Scalia at the United States Supreme Court."  Notably, neither Neil Gorsuch nor Brett Kavanaugh appeared on the first Trump SCOTUS short-list, but these names were added later and now they are fixed as part of the Trump Supreme Court legacy.

This recent CBS article, headlined "Democrats push Joe Biden to release Supreme Court short list and run on future court battles," highlights "calls for Biden to copy the playbook of then-candidate Donald Trump, who in May 2016 released a list of 11 people he would pick from to nominate to take the late Justice Antonin Scalia's seat."  Here are some excerpts:

Several lawyers and activists told CBS News that Biden, a former public defender, should run on protecting the popular liberal legacy of Ruth Bader Ginsburg.  Progressives warn if Biden is not elected, the Supreme Court's current 5-4 conservative tilt could balloon into a potential 7-2 majority if Ginsburg, 87, and  Stephen Breyer, 81, choose to retire or face greater health troubles....

Ginsburg is an enormously popular figure in the Democratic Party, a truth that has been evident throughout the Democratic primary process — her portrait is frequently seen beaming on colorful t-shirts and tote bags. Some suggest that by tying his campaign to protecting her legacy, Biden would also highlight his previous pledge to nominate the first black woman justice if he is elected.

Demand Justice, a progressive court reform group, already has a list of several women who they view as qualified, including NAACP Legal Defense Fund Director Sherrilyn Ifill and California Supreme Court Justice Leondra Kruger.

Other names floated to CBS News as potential court picks for Biden included federal court judges Kentanji Brown Jackson and Tanya Chutkan, both Obama appointees to the federal bench.

"Clinton and [Tim] Kaine really needed a third person on that ticket to really get out individuals who weren't that excited by them as a team, and I think Joe Biden kind of has the same issue going forward," Melissa Murray, law professor at New York University and host of the Supreme Court-focused podcast "Strict Scrutiny," told CBS News. "Imagine how much more energizing it would be to also pick someone [for SCOTUS] who would excite parts of the Democratic base."...

Asked about the likelihood of releasing a list of potential appointees, Biden's campaign did not directly respond and highlighted his history with the Supreme Court.

Long-time readers may recall, as detailed in this post from Feb 2016, that I was an advocate for Judge Ketanji Brown Jackson to be nominated by Prez Obama for the 2016 opening, in part because of her history as a public defender and her time as a member of the US Sentencing Commission.  I would continue to be excited to see her on any SCOTUS short list, and there are a number of women-of-color on the Demand Justice short-list that ought also excite folks eager to have more Justices who are more skeptical of the modern criminal justice status quo.

For those of us who follow closely the work of courts, I think it can be quite informative and important to get a view of what kinds of individuals a potential President would expect to appoint to our highest court.  I sincerely hope that Joe Biden does come out with a SCOTUS short-list before too long and that it includes people who seem likely to help produce more and better criminal justice rulings from the Supreme Court.

Sixth Circuit panel refuses to stay district judge order to transfer vulnerable prisoners out of Elkton federal prison "through any means"

As heralded in this ACLU press release, yesterday "a three-judge panel on the Sixth Circuit Court of Appeals ruled unanimously denying the Bureau of Prisons request to stay enforcement of the district court order to begin transfer and release of 837 medically-vulnerable prisoners from Elkton FCI."  Here is more from the press release:

The ACLU of Ohio and the Ohio Justice and Policy Center brought this class action on April 13, and as of last week, seven prisoners died from COVID-19.

“Today’s decision again confirms the urgent need to respond to the crisis unfolding at Elkton. Lives of prisoners, prison staff, and the community depend on swift action to move the most vulnerable people away from the COVID-19 outbreak before it is too late,” added David Carey, Senior Staff Attorney for the ACLU of Ohio.  “We applaud the Sixth Circuit’s order,” added David Singleton, Executive Director of the Ohio Justice & Policy Center. “The court’s ruling is grounded in precedent and allows this litigation to proceed with the urgency that this life-and-death situation demands.”

Per the court’s order, “The district court found that Elkton’s dorm-style structure rendered it unable to implement or enforce social distancing. The COVID-19 virus, now a pandemic, is highly contagious…Older individuals or those who have certain underlying medical conditions are more likely to experience complications requiring significant medical intervention, and are more likely to die.”

The panel's five-page ruling in this matter is available at this link, and here is a key paragraph:

Given the procedural posture of the case, we review not the merits of Petitioners’ Eighth Amendment claim, but whether the district court abused its discretion in entering the preliminary injunction.  We accept the district court’s factual findings unless we find them clearly erroneous.  Fed. R. Civ. P. 52(a)(6).  The district court found that Elkton’s dorm-style structure rendered it unable to implement or enforce social distancing.  The COVID-19 virus, now a pandemic, is highly contagious, and can be transmitted by asymptomatic but infected individuals.  Older individuals or those who have certain underlying medical conditions are more likely to experience complications requiring significant medical intervention, and are more likely to die.  At Elkton, COVID-19 infections are rampant among inmates and staff, and numerous inmates have passed away from complications from the virus.  Elkton has higher occurrences of infection than most other federal prisons.  Respondents lack adequate tests to determine if inmates have COVID-19.  While the district court’s findings are based on a limited evidentiary record, its “account of the evidence is plausible in light of the record viewed in its entirety.” United States v. Ables, 167 F.3d 1021, 1035 (6th Cir. 1999).  Thus, at this juncture and given our deferential standard of review on motions to stay, “[t]he district court’s choice between two permissible views of the evidence cannot . . . be clearly erroneous.” Id.

Prior related posts:

• Federal Judge orders BOP to find ways to transfer prisoners "out of Elkton through any means" in the coming weeks 
• Feds appealing last week's judicial order to transfer vulnerable prisoners "out of Elkton through any means"

Rounding up some recent commentary on the current COVID prison state

I continue to see more COVID commentary than I have time to read closely, let alone blog about effectively.  But, trying to cover lots of ground, here is a round up of some pieces that caught my eye in recent days:

By Mia Armstrong, "Life Has Moved to Zoom. Can Prison Visitation Do the Same?"

By Sessi Kuwabara Blanchard, "Two Prominent COVID-19 Federal Prison Deaths’ Common Denominator? Joe Biden"

By Rory Fleming, "In a Prison Where Coronavirus Is Rife, Waiting on a Judge’s Call to Be Freed"

By Oren Gur, Jacob Kaplan and Aaron Littman, "Data Is Key To Stopping COVID-19 Spread In Prisons"

By Holly Harris, "Blame the Justice Department for Andrea Circle Bear’s Death"

By Nicole Lewis, "Can College Programs in Prison Survive COVID-19?"

By Brent Orrell and Grant Duwe, "COVID-19 has exposed the interlocking risks of mass incarceration"

By John Wetzel, "What We've Learned About COVID-19 in Prisons"

 

UPDATE:  I forgot to include a great piece by the always great Radley Balko, and then I saw a number of others that seemed worth adding (though this list is still far short of comprehensive):

By Radley Balko, "Stopping covid-19 behind bars was an achievable moral imperative. We failed."

By Talha Burki, "Prisons are 'in no way equipped' to deal with COVID-19"

By Alex Busansky, "What a Pandemic Can Teach Us About the Future of Criminal Justice"

By Lauren-Brooke Eisen, "Covid-19 Continues Its Toll on Jails and Prisons"

By Nancy Gertner, "Coronavirus can mean a death sentence to prisoners: We got used to treating people as categories, not human beings."

By Lovisa Stannow, "What about the prisoners who won’t get out?"

Are federal judges approaching prison sentencing differently now that they see BOP ugliness up close?

The question in the title of this post is prompted by this notable new Forbes piece by Walter Pavlo headlined "After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future." I recommend the piece in full, though I fear it may be a bit too optimistic about the way the COVID era might impact the work of federal judges.  Here are excerpts:

In late March, U.S. District Judge Jesse Furman struggled to look for a way to free Nkanga Nkanga, a sixty-seven-year old former doctor with no prior criminal record who had admitted to unlawfully prescribing oxycodone and other controlled substances for non-medical purposes. Nkanga was held at MDC Brooklyn New York, a notoriously poorly run, dated and filthy prison operated by the Federal Bureau of Prisons (BOP).

Judge Furman, who had remanded Nkanga into custody in October 2019 after entering a guilty plea, was frustrated by what he could and could not do to free the inmate who was suffering from asthma and lingering conditions from a stroke years earlier.  Furman sentenced Nkanga to three years and was awaiting designation to Federal Medical Center Devens.  Assistant US Attorneys Jacob R. Fiddelman and Cecilia E. Vogel vehemently opposed the ailing doctor’s requests for release, frustrating Furman to call on legislatures and executive branch actions to untie his hands....

While judges may have a limited say in the release of an inmate, they have a big say in how long they are incarcerated....

In Ohio, a federal judge ruled that the BOP’s operation of FCI Elkton amounted to an 8th Amendment violation (Cruel and Unusual Punishment).  Lawyers for the BOP responded on April 28, 2020 that the measures the BOP took to curb the virus’s spread had been effective, stating in its emergency motion that, “These efforts have been working as the number of new cases has been reduced.”  I’m not sure where the attorneys got their stats but according to the BOP’s own website that tracks (under-reports) COVID-19 spread, showed a marked increase in cases....

Federal judges across the country have been hearing horrid stories about the BOP’s conditions and the agencies reaction, lack of action, to COVID-19. American Civil Liberties Union (ACLU) chapters have become involved, attempting to bring to light a federal agency’s inept and cruel response to the contagion of a virus that has infected over 2,000 inmates and killed 37. The BOP is inflicting even more, unmeasured, mental distress on both families and inmates.

The BOP’s failure to accurately report positive COVID-19 has endangered both its own staff members and inmates alike.  The promises to send people to home confinement and then taking it away, then possibly reinstating it, is cruel.  Locking minimum security inmates in high security prison cells for weeks and calling it a “quarantine” is something that needs to be investigated.  Directives that have now caused the cutting of communication with family (in-person visits, reduced telephone time and little access to email) is beyond comprehension at a time when people need some social interaction to keep their sanity. Many of these inmates have close family ties and what little correspondence they have had with family has relayed fear, sadness and oppression....

I have given up on prosecutors being a part of any criminal justice reform.  They create narratives, many of them farfetched, to justify long prison terms for crimes that may not have even occurred.  While I’m not saying that “nobody did the crime” what I am saying is that once a prosecutor gets a guilty plea, they exaggerate the crime, usually through inflation of the dollars associated with the crime and enhancements, to get longer sentences.  Judges, who make the ultimate determination of the amount of time a person spends in prison, could be the saving grace to reducing prison populations.  It only took a global pandemic to get them engaged.

Defendants would rather be in front of a judge on July 2020 than one on July 2019.  Judges are going to re-think their sentences.  Their courtrooms are currently jammed with motions for compassionate release, civil rights violations by BOP, and pre-trial pre-sentencing release motions.  Center stage at these hearings are BOP conditions, its policies, its care of inmates and how it treats those employed at these institutions.  In short, federal judges are seeing firsthand how the BOP executes the sentences they impose ... and it is ugly.

Federal judges may hold the key to real criminal justice reform because COVID-19 will make them think about the consequences that their sentences have on the lives of defendants and their families.  They will not be able to un-remember these tragic stories ... and that might be a good thing.

As always, I would be eager to hear (in comments or via email) from persons actively involved in federal sentencing work in this COVID era about whether they think judges are already starting to "re-think their sentences" and whether they are hopeful that federal judges are forever more going to think more "about the consequences that their sentences have on the lives of defendants and their families."  Though I sincerely hope that this current era proves to be "game-changing" for all judges (state and federal, trial and appellate), I am not all that optimistic for a number of reasons (which somewhat echo some points well-made in the great commentary I flagged here this past weekend).

First, as this notable recent Cato report detailed, a remarkably large number of current federal judges are former prosecutors.  As Palvo highlights, a lot of prosecutors get in the habit of assuming defendants are far worse than their convictions reflect and of believing long prison terms effectively achieve serve deterrence and incapacitation goals.  Once acclimated as prosecutors to viewing defendants as generally worse than they seem and tough punishment as critical for public safety, it is easy to take comfort in the notion that all defendants have "earned" whatever terrible prison fate might await them.

Second, judges always have an ultimate "trump card" to get folks out of dangerous prisons by being able to declare prison conditions unconstitutional in violation of the Eighth Amendment.  This commentary mentions the significant ruling by Judge James Gwin (discussed here), but does not note its outlier status.  There have been lots of other rulings nationwide, from federal and state judges, refusing to find constitutional violations and refused to push prison authorities to release inmates from environments where COVID is spread wildly.  (To reinforce my first point, I am pretty sure Judge Gwin never served as a prosecutor, but the federal judge in Louisiana (Judge Terry Doughty) who dismissed a similar suit around the same time served as a state prosecutor for over two decades.)

Third, the federal judicial agency that is supposed to help federal judges do their sentencing jobs better, namely the US Sentencing Commission, has so far failed to say "boo" about the COVID disruption and the ways federal judges are responding (and might be able to better respond).  Of course, this agency has been crippled now for the better part of two years by the failure of Prez Trump and the GOP-led Senate to come together on a slate of new Commissioners so that the agency could be operating at full force.  Still, the USSC staff has managed publish at least three major research documents in the last two months along with a number of smaller publications.  Federal judges might be more emboldened and feel more supported in taking new approaches to sentencing in the COVID era if the USSC was doing more than just whistling its standard sentencing tunes while federal prisons continue to burn.

That all said, my review of dozens of judicial grants of sentence reductions using § 3582(c)(1)(A)  (examples here and here and here and here and here and here) reveals that there are indisputably some — perhaps a good many — sitting federal sentencing judges who "get it" and recognize that the usual horrors and harms of prison are now even more horrible and harmful.  But I still fear that those judges now most concerned with COVID in federal prisons and BOP's inadequate response are just those same judges who have always been most attentive to "the lives of defendants and their families."  I sincerely hope the large number of former-prosecutors-turned-federal judges are starting to look at sentencing issues differently, but my hopefulness ability has been dampened by waiting for former-prosecutor-turned-Justice Samuel Alito to start looking at sentencing issues differently.

On the topic of hope, I would love to hear from readers (in comments or via email) that I am too pessimistic, that lots of judges are likely to look at lots of sentencing issues differently now.  Gosh knows we could all benefit from some small silver linings these days.

SCOTUS wastes no time taking up new case to address whether new Ramos jury unanimity rule is retroactive

In the US Supreme Court's Sixth Amendment unanimous jury ruling a couple of weeks ago, Ramos v. Louisiana, No. 18–5924 (S. Ct. April 20, 2020) (available here, basics here), a couple of the Justices already started debating whether the ruling would be give retroactive effect.  Interestingly, this new SCOTUS order list includes this new certiorari grant revealing that the Justices were eager to formally take up this issue before lower courts even had a chance to try to hash it out:

EDWARDS, THEDRICK V. VANNOY, WARDEN

The motion of petitioner for leave to proceed in forma pauperis is granted, and the petition for a writ of certiorari is granted limited to the following question: Whether this Court’s decision in Ramos v. Louisiana, 590 U. S. ___ (2020), applies retroactively to cases on federal collateral review.

Long-time readers should know that I generally view getting matters "right" in the criminal justice system as much more important than keeping that which is wrong "final."  (This is especially true  in the sentencing area as I explained in "Re-Balancing Fitness, Fairness, and Finality for Sentences" a few years ago.)  I always believe it especially important for new substantive laws and rules to be retroactive, and Ramos is obviously "just" a procedural rule.  But I have long hoped that the Supreme Court's Teague doctrine for limiting the retroactivity of procedural rules would someday identify the long-discussed "watershed" procedural rule that implicates the fundamental fairness and accuracy of the trial and thus should be fully retroactive.  See 489 U. S. 288, 311-312 (1989) (plurality opinion).  I suspect and hope jury unanimity might prove to be just such a rule (though I am certainly not holding my breath in light of the opinions in Ramos).

Prior related posts:

• In lengthy split opinion (with interesting splits), Supreme Court holds Sixth Amendment applies to states to require unanimous verdict to convict of serious offense
• A reminder of why "acquitted conduct" sentencing enhancements should be seen as a constitutional abomination
• A dozen GVRs based on Ramos (with Justice Alito always commenting along the way, and Justice Thomas dissenting in a few) 

Still more of the ever-growing number of COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

In recent posts (examples here and here and here and here and here and more linked below), I have highlighted more than four dozen rulings involving COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) that I have found via Westlaw.  (And, as I keep mentioning, these Westlaw listings likely do not represent all sentence reductions being granted these days).  before the start of a new work week, I figured I would do yet another round-up of new grants of sentence reductions that emerged on Westlaw from the end of last week.  It is heartening to again see these types of rulings from coast-to-coast and lots of places in-between:

United States v. Etzel, No. 6:17-cr-00001-AA, 2020 WL 2096423 (D Ore. May 1, 2020)

United States v. Lacy, No. 15-cr-30038, 2020 WL 2093363 (CD Ill. May 1, 2020)

United States v. Rivera, No. 86 Cr. 1124 (JFK), 2020 WL 2094094 (SDNY May 1, 2020)

United States v. Peters, No.3:18-cr-188 (VAB), 2020 WL 2092617 (D Conn. May 1, 2020)

United States v. Pinkerton, No. 15-cr-30045-3, 2020 WL 2083968 (CD Ill. Apr. 30, 2020)

United States v. Lucas, No. 15-CR-143, 2020 WL 2059735 (WDNY Apr. 29, 2020)

United States v. Dunlap, No. 1:02cr165-1, 2020 WL 2062311 (MD NC Apr. 29, 2020)

United States v. Saad, No. No. 16-20197, 2020 WL 2065476 (ED Mich. Apr. 29, 2020)

United States v. Harper, No. 7:18-cr-00025, 2020 WL 2046381 (D Conn. Apr. 28, 2020)

United States v. Mel, No. TDC-18-0571, 2020 WL 2041674 (D Md. Apr. 28, 2020)

In addition to this encouraging additional set of sentence-reductions grants using § 3582(c)(1)(A) accelerated by COVID concerns, there have also been a few grants based primarily on other factors that I hope to find time to cover in future posts.  In the meantime, 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.  

Prior recent related posts since lockdowns:

• Notable recent (pre-COVID) grants of sentence reductions from coast to coast using 3582(c)(1)(A) ... as FAMM urges thousand more filings in response to coronavirus
• Documenting early federal court COVID jurisprudence in response to various release requests from federal defendants and inmates 
• A few (too few) recent COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• Pleased to see growing number of COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• A few more COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• Still more COVID-influenced grants of sentence reductions using 3582(c)(1)(A), with waivers of exhaustion/waiting period 
• Additional COVID-influenced grants of federal sentence reductions using 3582(c)(1)(A) 
• Another round of recent COVID-influenced grants of federal sentence reductions using 3582(c)(1)(A)
• A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns

"Decarceration in the Face of a Pandemic"

There is a whole lot of terrific commentary these days about the intersection of criminal justice, incarceration and the COVID crisis. If you only have time to read one piece, I could recommend this terrific Cato piece by Clark Neily which has the title that I used for this post. Read the whole thing, and here is how it gets started:

America's jails and prisons are now among the deadliest environments on the planet.  Most of them are desperately overcrowded, understaffed, unhygienic, and utterly unable to provide even minimally adequate medical care to those who contract COVID-19, which is now spreading like wildfire through those facilities, endangering not only the lives of prisoners, but also of guards, staff, and the communities to which they all return at the end of their shifts.

Thus, one of the most urgent — and contentious — debates in criminal justice today is over which prisoners to release in the face of a pandemic that is literally unprecedented during America's era of mass incarceration, which dates back to the early 1990s.  Defense attorneys across the nation have filed a blizzard of early-release motions on behalf of their incarcerated clients, and the ACLU and other civil rights groups have sued a number of prisons and jails seeking the immediate release of particularly vulnerable inmates. Tragically, all of this is unfolding against the backdrop of a system that falls disgracefully short of meeting prisoners' medical needs during the best of times.  In the midst of a genuine emergency, it is no secret what will happen to most people who contract COVID-19 behind bars: They will be left to live or die with only token medical attention.

As a result, all but the most obtuse proponents of mass incarceration now recognize that it has become morally indefensible to continue holding at least some fraction of the roughy 2.3 million people currently behind bars in an environment where we can neither adequately protect them from nor treat them for COVID-19.

But the system is having an extraordinarily difficult time deciding whom to release, and I think there are three key reasons for that: (1) we have become so cavalier in our use of the criminal sanction that the mere fact of a person's incarceration tells us nothing about his moral culpability or what risk his immediate release might pose to society; (2) we've become so inured to how horrible the conditions in jails and prisons are that exposing inmates to a new and exceedingly virulent pathogen may strike some as simply a marginal change in the already dismal circumstances of their confinement; and (3) thinking seriously about whom to set free and whom to keep behind bars in the midst of a pandemic raises questions that the carceral-industrial complex can scarcely afford to have people asking after the crisis subsides.  I will address those points in turn.