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May 16, 2020

Two more great reports from NYU Center reviewing state clemency history in New York and Connecticut

As noted prior posts here and here, the NYU School of Law's Center on the Administration of Criminal Law has on-going project focused on state clemency histories with reports on particular state experiences.  The first two of these reports looked at Pennsylvania and Massachusetts, and now I see the project has produced new reports on developments in New York and Connecticut.  Here are titles, links and the start of the reports:

"Taking Stock of Clemency in the Empire State: A Century in Review"

Clemency in New York has long been declining, while the state’s prison population has grown dramatically. Between 1914 and 1924, New York averaged roughly 70 commutations per year, equal to the total number granted between 1990 and 2019. In 1928, Governor Al Smith granted 66 commutations from a total prison population of 7,819. Had commutations been granted at an equivalent rate in 2019, there would have been approximately 373; in actuality, there were two.

"Searching for Clemency in the Constitution State"

Executive clemency was an important release mechanism in Connecticut until the 1990s, when commutation grants stopped completely.  The Board of Pardons granted 36 commutations between 1991 and 1994, then granted none in the following nine years.  The commutation process ceased operating entirely in 2019: the Board stopped accepting commutation applications pending revised guidelines and instructions, which the Board has yet to release.  As of May 2020, there is no way for someone incarcerated in Connecticut to apply for a commutation.

May 16, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sixth Circuit panel finds district judge gave insufficient justification for not reducing crack sentence after congressional reductions

A little opinion yesterday from a Sixth Circuit panel in US v. Smith, No. 19-5281 (6th Cir. May 15, 2020) (available here), has a lot of noteworthy elements.  For starters, the defendant appealed pro se and prevails. And he did so on a claim that the district court's failure to reduce his crack sentence following passage of the Fair Sentencing Act and FIRST STEP Act was problematic. Here is some of the backstory and the heart of the ruling from the panel opinion:  

In 2006, Smith pleaded guilty to conspiracy to distribute more than 50 grams of crack cocaine, see 21 U.S.C. §§ 841(a)(1), 845, 851.  Because he had a prior felony drug conviction, he faced a mandatory-minimum sentence of 20 years of imprisonment, even though his advisory sentencing range under the United States Sentencing Guidelines would otherwise have been 168 to 210 months.  The district court sentenced him to the mandatory minimum: 240 months of imprisonment plus ten years of supervised release.

In 2018, Smith filed a letter with the district court asking for counsel to be appointed to review whether the First Step Act applied to his sentence.... The district court construed Smith’s letter as a motion seeking a sentence reduction under 18 U.S.C. § 3582(c).  The court determined that Smith was eligible for a reduction under § 3582(c) and the First Step Act, but declined to grant one.  United States v. Smith, No. CR 6:06- 021-DCR-1, 2019 WL 1028000 (E.D. Ky. Mar. 4, 2019).  Smith now appeals....

The district court acknowledged that under the current sentencing regime, Smith’s guideline range after applying the retroactive guidelines amendments would be 77 to 96 months of imprisonment and he would be subject to a 10-year mandatory-minimum sentence.  Smith, 2019 WL 1028000, at *3.  However, the district court denied Smith’s motion for a reduction, concluding that his original 20-year sentence remained appropriate....

The variance in this case is certainly a major one.  It is twice the maximum of the guideline range set by the statute, and two-and-a-half times what the guideline would otherwise be without the statutory minimum.  Moreover, the fact that Congress was the actor that reduced Smith’s guideline range through the passage of the First Step Act, rather than the Sentencing Commission, if anything increases rather than decreases the need to justify disagreement with the guideline....

The district court’s explanation for denying Smith’s motion for a reduction does not adequately explain why Smith should not receive at least some sentence reduction.  After reciting Smith’s criminal conduct that resulted in his 2006 conviction, the district court recalled that it had examined the § 3553(a)(2) sentencing factors and had explained why a sentence of 20 years’ imprisonment was appropriate during Smith’s original sentencing in March 2007.  Beyond relying on the court’s analysis at the original sentencing hearing, the court briefly discussed the nature and circumstances of Smith’s offense and the need to protect the public — two of the § 3553(a) factors.  The court pointed to the scale and harm of Smith’s criminal conduct and determined that Smith has a high risk for recidivism based on statistical information of people who, like Smith, have a significant criminal history.  However, these considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress.  See 28 U.S.C. § 991(b); Rita v. United States, 551 U.S. 338, 348–49 (2007).  This is especially true when the district court previously found the at-guideline range sentence to be appropriate.

Ultimately, the district court failed to provide a sufficiently compelling justification for maintaining a sentence that is now twice the guideline range set by Congress. We are confident on remand that the district court can determine whether, in its discretion, a sentence less than 20 years is appropriate after considering the § 3553(a) factors with reference to the purposes of the First Step Act and Fair Sentencing Act.

I am pleased to see that the Sixth Circuit panel was able to see problems with the ruling below without the help of counsel, but I find jarring and disturbing that the district judge here got this matter started by construing a letter requesting counsel as a motion seeking a sentence reduction that the judge then denied seemingly without any briefing. As readers may recall, just last week the Supreme Court dinged the Ninth Circuit in Sineneng-Smith for taking over a case from the parties, and I think the Sixth Circuit might have reasonably assailed the district judge for similarly problematic behavior here.

Last but not least, it should be noted that the district judge in this matter is Danny C. Reeves, who just happens to be one of the two remaining active members of the US Sentencing Commission.  There is a particular irony in the Sixth Circuit panel needing to remind a member of the USSC about which "considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress."

May 16, 2020 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

May 15, 2020

"Deep Disadvantage, Blameworthiness, and Sentencing"

The title of this post is the title of this new paper authored by Michael Tonry just recently posted to SSRN. Here is its abstract:

Arguments in favor of a “social adversity” or “rotten social background” defense are substantially stronger than those against.  People disagree in principle whether an affirmative defense of deep disadvantage, paralleling the insanity defense, should be recognized and whether judges should routinely mitigate the severity of sentences imposed on deeply disadvantaged offenders.  The defense should be recognized. It would be unlikely often to result in acquittals but it would strengthen many defendants’ positions in plea negotiations. Mitigation of punishment should be routine.  Few credible arguments can be made that a deeply disadvantaged background is not a material characteristic that should be taken into account in sentencing.  Unfortunately, informal mitigation of punishments is not enough. The severity and rigidity of American sentencing laws often deny judges the necessary authority.  The moral challenges presented by deeply disadvantaged offenders cannot adequately be addressed without creation of a new affirmative defense.

May 15, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

How might an "Office of Plea Integrity" be best constructed and tasked to improve our bargained system of justice?

The question in the title of this post is a riff off this great new commentary from Clark Neily that seeks to turn the many lemons of the Flynn kerfuffle into tasty criminal justice reform lemonade.  The extended piece, headlined "Department of Injustice," is worth a read in full, and here is how it starts and closes:

While the Michael Flynn prosecution is currently imploding, no matter how it ends, the key lesson is clear: The nakedly coercive tactics routinely used by federal prosecutors to obtain admissions of guilt render those admissions utterly unreliable — not just in Flynn’s case, but in every case.  Congress should act immediately to restore public confidence in the integrity of our criminal justice system by reforming this fundamentally lawless and un-American practice.  And the Flynn case shows why that reform should be a top legislative priority....

Simply put, the reason we still have no clear understanding of precisely what Flynn did or didn’t do, and what crimes he did or didn’t commit, is because the entire case against him boils down to an in-court admission that Flynn now claims was coerced by DOJ prosecutors applying intolerable pressure to induce him to waive his right to a trial and simply confess his guilt, just as more than 90% of federal criminal defendants do today.  Indeed, it is hardly an exaggeration to say that criminal jury trials are nearly extinct on American soil: Some 97.4% of federal criminal convictions are obtained through plea bargains, and in some judicial circuits, it’s as high as 99%.

Recent developments in the Flynn case, including evidence that senior FBI officials engaged in shockingly inappropriate, perhaps even criminal, behavior during the Flynn investigation, give rise to a stark but crucial question: How many other guilty pleas would disintegrate as spectacularly as Flynn’s if the underlying case were subjected to the same searching review that Flynn’s finally received more than two years after the entry of his guilty plea?

Proponents of the current plea-driven system will likely counter that Flynn’s case was a politicized fluke, nothing more.  But there are good reasons to doubt that assurance. Consider the 2018 prosecution of rancher Cliven Bundy in Nevada for inciting violence against federal agents in the midst of a dispute over federal grazing land.  That case was dismissed with prejudice after the judge determined that DOJ prosecutors showed a “reckless disregard for the constitutional obligation to seek and provide evidence” by withholding documents and misstating facts about the case.  Or consider the 2008 corruption prosecution of Sen. Ted Stevens before the same judge in the Flynn case, Emmet Sullivan, during which DOJ prosecutors systematically withheld explosive exculpatory evidence that would have thoroughly gutted their case against Stevens.  Besides dismissing the charges against Stevens, an incensed Sullivan commissioned a thorough investigation of the DOJ’s misconduct in the case that culminated in a 500-page report that documents, in mind-boggling detail, prosecutors’ serial misdeeds in their corrupt attack upon a sitting senator.

Again, defenders of the current system will say those particular examples are rare, which is true — but so are trials in our plea-driven federal system, in which just 2% of cases go to trial.  If every single case went to trial with defense counsel as tenacious and aggressive as Flynn’s new team, how many of those cases might blow up as spectacularly as the Flynn, Bundy, or Stevens cases?  And if every one of those cases got the same internal tire-kicking by the DOJ that Flynn’s finally received, how many of them would simply be dismissed outright, as the DOJ now seeks to do with Flynn?

There’s no reason the latter question has to remain hypothetical, and Congress should move swiftly to ensure that it does not.  The pathologies engendered by the DOJ’s overreliance on coercive plea bargaining are too numerous and too deeply ingrained in our system to address all at once.  But something Congress can do immediately is establish within the Department of Justice an Office of Plea Integrity that would be charged with doing on a full-time basis what Jeff Jensen was brought in to do in the Flynn case, namely, pop the hood and give the whole case a searching and perhaps even skeptical review before clearing it to proceed to a guilty plea.  With upwards of 80,000 federal criminal prosecutions each year, it probably isn’t feasible to review every case, but it should not be unduly difficult to develop a system for selecting a mix of random and specially designated cases, including ones involving prosecutions of particular public interest, such as the Flynn and Stevens cases, for review.

Other reforms Congress should consider in the longer term include a statutory cap on the notorious “trial penalty,” which is the often substantial differential between the sentence offered in a plea bargain and the much harsher sentence the defendant will receive if he exercises his right to trial; imposing a legal duty on prosecutors to provide materially favorable evidence to the defense before any plea discussions occur, something that is not always done currently; and the elimination of absolute prosecutorial immunity, a judicially invented legal doctrine that makes it impossible for victims of even the most blatant misconduct to sue prosecutors for anything they do in the course of their prosecutorial duties.

Again, those are policies Congress may consider in the fullness of time.  But the creation of a Plea Integrity Unit within the DOJ is an obvious and urgent response to a botched high-profile prosecution that has justifiably shaken people’s faith in the competence and the integrity of the federal criminal justice system.

I love the idea of a body committed to ensuring pleas have integrity, but I am not quite sure why Clark Neily would trust the DOJ fox to review critically its favorite fat hen in its prosecutorial henhouse.  As I see it, there needs to be a body, largely independent of prosecutors, that is charged with takes a close and skeptical look at individual pleas and our entire modern bargained system of justice.

In this area, I have long been a fan of Professor Laura Appleman's clever idea of a "plea jury" (as detailed in an article and book): "a lay panel of citizens [that] would listen to the defendant's allocution and determine the acceptability of the plea and sentence, reinvigorating the community's right to determine punishment for offenders."  I do not think a "plea jury" would solve all or even most of the modern problems with modern plea practices, but it strike me as a good start.  Perhaps that case-specific innovation could be coupled with an new independent judicial-branch commission, one perhaps structurally modeled like the US Sentencing Commission, that would be tasked with gathering data and issuing guidelines on sound plea bargaining practices.

As Neily notes, more than nine of every ten convictions come from the plea process, and yet there are few rules and even less data to inform the discretion exercised by prosecutors as they pursue investigation and structure the terms of plea bargains.  Wherever located and however structured, an "Office of Plea Integrity" would not instantly improve our bargained systems of justice, but it strikes me a good place to start. 

May 15, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

ANOTHER 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.

May 15, 2020 in Sentences Reconsidered | Permalink | Comments (0)

May 14, 2020

COVID in prison reaches SCOTUS as it refuses to vacate Fifth Circuit stay ... and Justice Sotomayor has much to say

The Supreme Court this evening denied, via a one-sentence order (available here), a request to vacate a stay that the Fifth Circuit put in place to halt, pending appeal, an injunction requiring a Texas prison take various measure to protect inmates from the dangers of COVID–19.  Though the full court used only one sentence to deny the request to vacate the stay, Justice Sotomayor (joined by Justice Ginsburg) added this statement about that denial that runs seven pages.  Here are a few excerpts from the start and end of her statement:

Under the circumstances of this case, where the inmates filed a lawsuit before filing any grievance with the prison itself, it is hard to conclude that the Fifth Circuit was demonstrably wrong on this preliminary procedural holding.

I write separately to highlight the disturbing allegations presented below.  Further, where plaintiffs demonstrate that a prison grievance system cannot or will not respond to an inmate’s complaint, they could well satisfy an exception to the PLRA’s exhaustion requirement.  Finally, while States and prisons retain discretion in how they respond to health emergencies, federal courts do have an obligation to ensure that prisons are not deliberately indifferent in the face of danger and death....

While I disagree with much of the Fifth Circuit’s analysis at this preliminary juncture, the court required reports every 10 days on the status of the inmates in the prison’s care.  I expect that it and other courts will be vigilant in protecting the constitutional rights of those like applicants.  As the circumstances of this case make clear, the stakes could not be higher.  Just a few nights ago, respondents revealed that “numerous inmates and staff members” at the Pack Unit “are now COVID-19 positive and the vast majority of those tested positive within the past two weeks.” Supp. Brief Regarding Emergency Application 1.

Nothing in this Court’s order, of course, prevents the Fifth Circuit from amending its stay.  Nor does anything in our order prevent applicants from seeking new relief in the District Court, as appropriate, based on changed circumstances.  Finally, administrative convenience must be balanced against the risk of danger presented by emergency situations.  The prison, for example, has failed to explain why it could not simply decrease dorm density, despite having an empty unit at its disposal.

It has long been said that a society’s worth can be judged by taking stock of its prisons.  That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm.  May we hope that our country’s facilities serve as models rather than cautionary tales.

May 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Rounding up another round of recent commentary concerning incarceration amidst our COVID era

Months into this pandemic, I am fearful I am starting to get a bit numb to all the headlines concerning the state of incarceration nation as the coronavirus continues to spread.  Helpfully, lots of smart folks are continuing to comment forcefully and thoughtfully on these developments so I can provide this useful round up:

From Michelle Alexander, "Let Our People Go: A letter from inside Marion Correctional Institution is the voice of those locked in cages and discarded during this pandemic."

Cary Aspinwall, Keri Blakinger & Joseph Neff, "What Women Dying In Prison From COVID-19 Tell Us About Female Incarceration"

Cristine Soto DeBerry, "Jails and Prisons Must Reduce Their Populations Now"

Joseph Krakora, "Prison inmates are dying at an alarming rate. We must do more."

Ashish Prashar, "COVID-19 is forcing the release of some inmates. What will prisons look like after pandemic?"

S.P. Sullivan, Blake Nelson & Joe Atmonavage, "Coronavirus has killed dozens in state prisons. How N.J. failed to stop it."

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

"People in Prison in 2019" ... as well as a partial 2020 update

The title of this post is the title of this great new Vera institute of Justice publication that provides the latest nationwide prison population headcounts.  Here his how the first part of the report gets started:

Effective advocacy and policy making require up-to-date information.  Vera Institute of Justice (Vera) researchers collected data on the number of people who were incarcerated in state and federal prisons as of December 31, 2019, to provide timely information on how prison incarceration is changing in the United States.  This report fills a gap until the Bureau of Justice Statistics (BJS) releases its next annual report — likely in early 2021 — which will include additional data, such as population breakdowns by race and sex.  In response to the novel coronavirus pandemic, Vera collected updated data on people in prison at the end of the first quarter of 2020 to reflect any changes that had occurred as a result of the outbreak.

At the end of 2019, there were an estimated 1,435,500 people in state and federal prisons, down 33,000 from year-end 2018 (2.2 percent decline).  There were 1,260,400 people under state prison jurisdiction, 28,200 fewer than in 2018 (2.2 percent decline); and 175,100 in the federal prison system, 4,800 fewer than in 2018 (2.7 percent decline).

The prison incarceration rate in the United States was 437 people in prison per 100,000 residents, a 2.6 percent drop from 449 per 100,000 in the previous year.  This represents a 17.5 percent decline in the rate of prison incarceration since its peak in 2007.

A decrease in the number of people in federal prisons, along with at least 5 percent declines in incarceration rates in eight states, account for the overall decline in the national prison incarceration rate.  Of those eight states, only three — Missouri, New York, and Oklahoma—have relatively large prison populations.  Prison incarceration continued to rise in some states, such as Nebraska, Idaho, and West Virginia....

Population data collected for March/April 2020 from 44 states and the federal Bureau of Prisons in response to the COVID-19 pandemic showed negligible declines in numbers (a 1.6 percent decrease) during the first three months of 2020.  During the first months of 2020, U.S. prisons emerged as epicenters of the COVID-19 pandemic.  In light of this crisis, advocates and public health officials made repeated calls for elected officials to use clemency and other immediate measures to reduce state and federal prison populations. Vera requested additional data for the end of March or beginning of April 2020 to account for any prison population changes during the first quarter of the year.  Data from 44 states and the BOP show that none had moved with the urgency required to meet the recommendations of public health officials to reduce incarceration.  Across all jurisdictions that reported data to Vera, prison populations had decreased by only 1.6 percent.

Five states — Idaho, Iowa, South Carolina, West Virginia, and Wyoming — had more people in prison on March 31, 2020, than they did on December 31, 2019.  The remaining states showed only small declines.  While Missouri’s prison population declined 14.2 percent in 2019, it had declined only 1.2 percent during the first quarter of 2020. 

The largest percentage reductions were in Vermont (down 11.6 percent), North Dakota (down 9.8 percent), and Oregon (down 8.3 percent).  The largest reductions in the number of people in prison were from large states: Florida (down 2,100 people), California (down 1,700 people), and New York (down 1,500 people).

May 14, 2020 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

As federal prison population continues remarkable decline, can anyone predict what might be a new normal?

Another Thursday brings another new check on the federal Bureau of Prisons' updated general population numbers. In prior posts here and here, I 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 two weeks into May, and the new numbers at this webpage continue to show an even bigger weekly decline in total number of federal inmates as calculated by BOP: the population dropped from 170,435 (as of April 30) to 169,080 (as of May 7, 2020) to now now a total of 167,803 (as of May 14, 2020).

As I have detailed before, upticks in the number of persons placed on home confinement reported on the BOP's COVID-19 Update page seemingly account for less than a third of recent reported BOP population decreases.  Thus the data continue to suggest that a reduced inflow of prisoners — due, I presume, to many sentencings and reportings to prisons being delayed — is playing a huge role in the significant population declines in recent months.

As the question in the title of this post is meant to flag, I really have no idea what the new normal for the federal prison population might look like in the wake of the remarkable disruptions caused by the coronoavirus.  Just like the whole nation is likely to be unsure about what kinds of activities are "safe" for quite some time, it may be quite some time before anyone can state with confidence that federal prisons are "safe."  And, of course, with profound disruptions to federal grand juries and so many other aspects of federal criminal justice administration, it seems likewise impossible to predict just when the huge federal criminal justice machinery that typically sends over 5000 people to federal prisons each month will be operating at full capacity again.  And, as discussed in this prior post, perhaps at least some judges may be more reticent to send some people to prison even after federal officials say their facitlies are "safe" again.

So, dear readers, anyone bold enough to predict what the federal prison population might look like in, say, mid May 2021 or 2025 or 2030?

A few of many prior related posts:

May 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

May 13, 2020

With lots more new grants, time for another timely review of the latest 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 here and more linked below, I have highlighted a number of the many, many COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).  As mentioned before,  I have received positive feedback concerning these prior posts from various quarters, and so I will continue to report on these kinds of rulings every time I discover a dozen or more of these kinds of notable sentencing ruling.  (And, as I have also mentioned before, these Westlaw listings likely do not represent all sentence reductions being granted by federal courts these days.) 

Though it is only midday on Wednesday, May 13, a whole lot of new rulings and many new grants of sentence reductions dated May 12 were made available on Westlaw this morning.  Thus, before the latest list of new grants of sentence reductions gets far too long, here is a list based on rulings since my last lengthy listing from just last Friday: 

United States v. Ullings, No. 1:10-cr-00406, 2020 WL 2394096 (ND Ga. May 12, 2020)

United States v. Al-Jumail, No. 12-20272, 2020 WL 2395224 (ED Mich. May 12, 2020)

United States v. Barber, No. 6:18-cr-00446-AA, 2020 WL 2404679 (D Ore. May 12, 2020)

United States v. Ramirez, No. 17-10328-WGY, 2020 WL 2404858 (D Mass. May 12, 2020)

United States v. Hunt, No. 18-20037, 2020 WL 2395222 (ED Mich. May 12, 2020)

United States v. Rivernider, No. 3:10-cr-222 (RNC), 2020 WL 2393959 (D Conn. May 12, 2020)

United States v. Velencia, No. 15 Cr. 163 (AT), 2020 WL 2319323 (SDNY May 11, 2020)

United States v. Simpson, No. 11-cr-00832-SI-3, 2020 WL 2323055 (ND Cal. May 11, 2020)

United States v. Reddy, No. 13-cr-20358, 2020 WL 2320093 (ED Mich. May 11, 2020)

United States v. Foreman, No. 3:19-cr-62 (VAB), 2020 WL 2315908 (D Conn. May 11, 2020)

United States v. Connell, No. 18-cr-00281-RS-1, 2020 WL 2315858 (ND Cal. May 8, 2020)

United States v. Joseph, No. 18-cr-00350-BLF-1, 2020 WL 2315806 (ND Cal. May 8, 2020)

United States v. Pena, No. 15-cr-551 (AJN), 2020 WL 2301199 (SDNY May 8, 2020)

United States v. Barrenechea, No. 92-cr-00403-MMC-3, 2020 WL 2315638 (ND Cal. May 7, 2020)

I cannot help but notice that a number of these latest rulings are coming from the same judicial district though from different judges within that district.  I wonder if this is pure coincidence or whether some courts might be developing more of a culture of granting these kinds of motions (or whether Westlaw is just more likely to put orders from certain courts into its databases).

Prior recent related posts since lockdowns:

May 13, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered | Permalink | Comments (2)

"The First Step Act and the Brutal Timidity of Criminal Law Reform"

The title of this post is the title of this notable new piece authored by Mark Osler and just posted to SSRN.  The title and author make me especially excited to have this new read, and here is its abstract:

It took decades to partially correct the egregiously wrong 100-1 ratio between crack and powder cocaine in federal law. Marijuana is still a Schedule I narcotic, despite universal condemnation of that categorization.  Even when we get it, criminal law reform comes achingly slowly and with brutal timidity, at a stunning cost in lives and freedom.  This article explores the grim history of this dynamic in the modern United States, explores the causes, and suggests solutions. It will appear in the New England Law Journal with responses from a variety of legal analysts.

May 13, 2020 in FIRST STEP Act and its implementation, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

After serving almost two years, Paul Manafort moved from prison to home confinement to serve remained for his 7.5 year federal sentence due to COVID concerns

As reported in this new ABC News piece, headlined "Former Trump campaign chairman Paul Manafort released to home confinement amid coronavirus concerns," a high-profile, white-collar offender is getting moved from federal prison to home confinement due to coronoavirus concerns.  Here are the essentials (with a few details highlighted):

President Trump’s former campaign chairman Paul Manafort has been released from prison to serve the remainder of his sentence in home confinement because of concerns over the novel coronavirus, two sources familiar with the matter told ABC News.

Manafort was released from FCI Loretto in central Pennsylvania early Wednesday morning, the two sources said. An attorney for Manafort confirmed he had been released to home confinement but declined to comment further. The Bureau of Prisons also did not immediately respond to a request for comment.

Manafort, 71, has been serving out his more than seven-year sentence for charges related to special counsel Robert Mueller’s investigation in a federal correctional institution in central Pennsylvania. He was found guilty of tax fraud and conspiracy and was sentenced by a federal judge in March 2019. He was slated to be released from prison November 4, 2024. The charges stemmed from his work related to Ukraine between 2006 and 2015....

The decision to move Manafort to home confinement comes after his attorneys wrote a letter to the Bureau of Prisons (BOP) last month requesting that he be immediately transferred to home confinement because he is at high risk of contracting COVID-19 because of his age and pre-existing conditions.

While there are no known cases of coronavirus at FCI Loretto, sources have told ABC News that the prison was an old monastery, and due to the open configuration of the prison, would be devastated by the virus.

In December, Manafort was hospitalized for several days due to what sources described as a “cardiac event.” He recovered at a local Pennsylvania hospital under the supervision of correctional officers. His lawyers say his pre-existing conditions include high blood pressure, liver disease, and respiratory ailments and add that Manafort contracted influenza and bronchitis in February 2020. Manafrot takes 11 medications daily, according to his attorneys.

“We write on behalf of our client to request that the Bureau of Prisons (“BOP”) immediately transfer Mr. Manafort to home confinement to serve the remainder of his sentence or, alternatively, for the duration of the on-going COVID-19 pandemic in accordance with Attorney General William Barr’s directives to the BOP on March 26 and April 3, 2020, and the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), enacted on March 27, 2020,” attorneys Kevin Downing and Todd Blanche wrote in an April 13 letter obtained by ABC News....

Last month the Justice Department issued a clarification regarding its policy on releasing certain inmates into home confinement, after a series of conflicting messages sparked confusion and uncertainty among prisoners, attorneys and federal courts. "[Bureau of Prisons] is at this time prioritizing for consideration those inmates who either (1) have served 50% or more of their sentences, or (2) have 18 months or less remaining in their sentences and have served 25% or more of their sentences," federal prosecutors wrote in a court filing in the Southern District of New York last month. "As BOP processes the inmates eligible for home confinement under these criteria and learns more about the COVID-19 pandemic and its effect on BOP facilities, it is assessing whether and how to otherwise priority consideration.”

Manafort has served just under 30% of his prison sentence, however prison officials have wide latitude when considering these releases on a case-by-case basis.

I am quite pleased to see that the federal Bureau of Prisons has had the good sense to place this elderly, ill, nonviolent offender into home confinement; Manafort is exactly the type of person in federal prison who is a high-health risk due to the coronavirus while being a low-public-safety risk when serving his sentence at home.  But I have highlighted some notable feature of this case in the hope that BOP will take the same approach to the many thousands of other elderly and ill nonviolent persons in federal prison, even when a particular prison facility currently has no confirmed COVID cases and even when an individual has served considerably less than 50% of a lengthy prison term.

I know that federal prosecutors have regularly opposed compassionate release motions around the country by making much of the fact that certain prison facilities currently have no confirmed COVID cases and the fact that a particular inmate has not served the majority of an original long sentencing term.  But if those factors did not keep the BOP from moving Paul Manafort from federal prison into home confinement, they ought not to keep federal judges from granting needed sentence reductions to enhance public health and community safety for less prominent persons at real risk of having a federal prison sentence become a death sentence.

Some of many prior related posts:

May 13, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Members of Congress submit amicus brief urging Ninth Circuit to rule FIRST STEP Act provisions lowering mandatory minimums apply at a resentencing

In this post way back in 2018 just a few days after the FIRST STEP Act became law, I took note of the notable provisions in the Act which expressly addressed just which types of offenders should get the benefit of the Act's new statutory sentencing provisions if their cases were already in the criminal justice pipeline.  In that post, I complimented Congress for addressing these issues, but I also noted that some matters left unclear such as whether "a defendant already sentenced earlier in 2018 [who has] his sentence reversed on some other ground and now he faces resentencing [could] get the benefit of any new provisions of the FIRST STEP Act upon resentencing."

Via this new press release, I now see that this resentencing question is before the Ninth Circuit and that a notable group of Senators are seeking to ensure the defendant gets the benefit of the FIRST STEP Act at his resentencing.  Here is the text of the press release:

U.S. Senators Dick Durbin (D-IL), Chuck Grassley (R-IA), and Cory Booker (D-NJ), lead authors and sponsors of the First Step Act — landmark criminal justice reform legislation — today submitted a bipartisan Amicus Brief to the Ninth Circuit Court of Appeals in United States of America v Alan L. Mapuatuli, a case related to the reduction of the second strike and third strike drug mandatory minimums.

The bipartisan Brief argues that Congress intended the First Step Act (FSA) to apply at post-FSA sentencing hearings, including when a defendant is before a court for sentencing after his or her initial sentence was vacated on appeal.  Congress intended to cover these cases by stating that the FSA applies “if a sentence for the offense has not been imposed” as of the FSA’s date of enactment.  However, the Justice Department is litigating the contrary position in United States of America v Alan L. Mapuatuli.

The Members wrote: “… the interpretation advanced by the Executive Branch and adopted by the district court in this case is contrary to Congress’s language and intent.  Reduced to its simplest form, that interpretation assumes that Congress intended to give legal effect to sentences that otherwise are void.  That assumption finds no support in the statutory text, contradicts the fundamental considerations that motivated Congress to enact the First Step Act, and produces inequitable outcomes that undermine the fairness and legitimacy of our criminal justice system.  That unquestionably is not what Congress intended.  For these reasons, amici respectfully submit that the district court’s judgment should be vacated and the case remanded for resentencing in conformity with the First Step Act.”

The full 20-page amicus brief in this matter is available at this link, and I applaud the Senators and their lawyers for urging the Ninth Circuit to ensure that the FIRST STEP Act is given the broad reach that it seems Congress intended and that its text reasonably supports.

May 13, 2020 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

May 12, 2020

Federal judge orders Danbury warden to start "evaluating inmates with COVID-19 risk factors for home confinement and other forms of release"

As reported in this local press piece, a "federal court gave a victory Tuesday night to about 1,000 inmates at the federal prison in Danbury who charged in a class action suit late last month that they are being confined in unconstitutionally dangerous conditions because authorities have failed to release prisoners to home confinement and take other steps to stem the spread of the coronavirus in the institution."  Here is more about this new ruling:

U.S. District Judge Michael Shea issued an order that gives the prison administration just days to identify inmates with health conditions that place them at risk for COVID-19 complications and to begin aggressively evaluating requests by prisoners for transfer to home confinement or compassionate release.

In his 74-page order, Shea refers to the “apparent failure” of the Danbury administration to carry out an April 3 memo by U.S. Attorney General William Barr ordering the administration at Danbury and other prisons to “maximize” emergency authority granted by Congress to release inmates to home confinement....

In their suit, the Danbury inmates — men and woman confined at three facilities within the larger, low-security institution — complained that the local administration was intentionally dragging its feet on compliance with Barr’s memo and Shea endorsed the complaint in his decision.  The inmates argued — and Shea agreed — that prisoner releases or transfers are necessary to decrease congestion and permit adequate social distancing within the institution.

Shea gave the Danbury administration about 13 days to provide him with a list of inmates eligible for transfer to home release and those who are not. In the case of those denied release, Shea ordered the prison to provide explanations.

The full 74-page ruling is available for download below, and here is how it gets started:

On March 27, 2020, Congress gave federal prison officials an extraordinary tool to confront the extraordinary threat posed by the novel coronavirus within prison walls: the authority to transfer any federal inmate from prison to confinement in his or her home.  A week later, the Attorney General of the United States urged the Director of the Bureau of Prisons (“BOP”) to “maximize” the use of that tool as soon as possible, stating in an April 3 memorandum that “[g]iven the speed with which this disease has spread through the general public,” and the Bureau’s “profound obligation to protect the health and safety of all inmates,” “it is clear that time is of the essence.” ECF No. 24-2 at 48-49.  The Attorney General’s memo was triggered by an outbreak of COVID-19, the disease caused by the novel coronavirus, at the Danbury Federal Correctional Institution (“FCI Danbury”), a low security prison in Danbury, Connecticut, and two other federal prisons; the memo directed the BOP to “immediately review all inmates who have COVID-19 risk factors” for potential placement in home confinement, “starting with inmates incarcerated at … FCI Danbury” and the other two facilities. Id. at 49.  This case — brought by four inmates at FCI Danbury — involves an apparent failure of the Warden and staff at FCI Danbury to take these exhortations seriously. The four inmates, all of whom have COVID-19 risk factors, have made a preliminary showing that officials at FCI Danbury are making only limited use of their home confinement authority, as well as other tools at their disposal to protect inmates during the outbreak, and that these failures amount to deliberate indifference to a substantial risk of serious harm to inmates in violation of the Eighth Amendment.  Accordingly, I grant in part the inmates’ motion for a temporary restraining order and issue an order that requires the Warden at FCI Danbury to adopt a process for evaluating inmates with COVID-19 risk factors for home confinement and other forms of release that is both far more accelerated and more clearly focused on the critical issues of inmate and public safety than the current process.  Factual disputes as to other issues the inmates raise preclude me from granting further relief at this time, but I also order an expedited period of discovery and schedule a hearing for June 11, 2020, to adjudicate the inmates’ motion for preliminary injunction.

Download 30 - Order on MTD and TRO

May 12, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

"Helping People Transition from Incarceration to Society During a Pandemic"

The title of this post is the title of this notable new report authored by Sterling Johnson and Leo Beletsky.  Here is part of its executive summary:

In the best of times, the reentry process is extraordinarily difficult and emotionally taxing.  Returning people are rarely truly free, as they typically must navigate a long list of onerous rules.  This may include electronic monitoring, housing restrictions, and curfews.  They must also struggle against the sanctioned stigma of a criminal record, restricting education, employment, and housing opportunities.  Since healthcare, substance use treatment, and other support services are utterly lacking behind bars, reentry is a time of extreme physical and mental health risk.  This includes the odds of fatal overdose, which is up to 130 times more likely for those in the first two weeks post-release than in the general population.

But these are not normal times.  The coronavirus pandemic is drastically compounding the challenges of reentry.  With the economy in freefall, some requirements of supervised release — like obtaining housing and employment — are virtually unattainable.  People reentering society are facing increased risk of homelessness, as halfway housing is unavailable and their own families may be reluctant to take them in if they come from facilities with COVID-19 infections.  Increased reliance on communication over the phone and the web for health and other services make the digital divide among returning people literally a matter of life and death.

The bottom line is that systems designed to assist reentry — crude and insufficient as they were — are no match for these times.  Prisons and jails must release more people to reduce the risk of infection behind bars, but this effort must be coupled with major scale-up in reentry services.

While policymakers are ignoring the needs of reentering people, polling suggests that the public overwhelmingly supports additional measures, including:

  • 60% of all respondents, including 50% of those identifying as Republican, support supplying smart phones and phone plans for people reentering society.
  • 66% of respondents, including 61% of those identifying as Republican, support a program that would help those reentering society obtain work, training and/ or education to ensure they are able to provide for themselves.
  • 53% of respondents support providing hotel rooms to allow individuals to self-isolate upon release if they have been exposed to coronavirus behind bars.
  • 56% of respondents — including 51% who identify as Republican — agree that returning citizens should be provided 12 months of stable housing.
  • 52% of respondents support the temporary repeal of criminal record bans for healthcare profession licensing for people otherwise qualified and not a risk.

As COVID-19 is devastating correctional institutions and their surrounding communities, decarceration measures are finally gathering momentum.  Efforts to decarcerate must always include increased support for people through the reentry process.  In the age of COVID-19, the health and human rights imperative for safe reentry has never been more urgent.

May 12, 2020 in Reentry and community supervision | Permalink | Comments (1)

Judge Breyer rejects plea agreement seeking to restrict defendant's statutory authority to pursue compassionate release

Amidst my review of the many federal sentence reductions under § 3582(c)(1)(A) that appear each day on Westlaw, a notable new opinion emerged from a notable judicial author.  Specifically, US District Judge Charles Breyer yesterday issued a 10-page "Order rejecting plea agreement" in US v. Funez Osorto, No. 19-cr-00381-CRB-4 (ND Cal. May 12, 20202) (available here).  For sentencing fans, Judge Breyer is notable in part because he is one of only two remaining active US Sentencing Commissioners (others might also think it notable that he is Justice Stephen Breyer's brother).  And the Funez Osorto opinion is notable for its rejection of a plea agreement based on a provision that is especially relevant in these pandemic days. 

I recommend the full Funez Osorto opinion, and here is a small taste including its start and finish:

Must a term of imprisonment be set in stone, no matter what happens after it is imposed?  Should a court be able to reduce a sentence when unforeseeable tragedies change its consequences?  What if the defendant’s children are effectively orphaned by the death of their other parent?  What if a debilitating injury makes it impossible for the defendant to care for him or herself in prison, or recidivate outside of it?  What if a terminal diagnosis turns a brief term of imprisonment for a minor crime into a life sentence?  What if a global pandemic poses a mortal risk to an immunocompromised inmate who nobody intended to die in jail?  When should a court be able to consider such events and revise a previously imposed sentence accordingly?  How difficult should it be for a defendant to request this type of relief?

Congress has provided one set of answers to these questions, in the First Step Act ..... The United States attorney’s office has very different answers in this case, for this defendant.  Because those answers undermine Congressional intent and all but foreclose this defendant’s ability to request a critical form of relief, the Court rejects the proposed Plea Agreement....

The point is this: while the Plea Agreement leaves open a path to compassionate release, it is hardly wider than the eye of a needle. It is far narrower than the avenues to relief provided by § 3582(c)(1)(A), and too narrow to provide meaningful relief in many of the circumstances that would render Funez Osorto eligible for relief.  And there is no doubt the Government would rely on the waiver provision to deny Funez Osorto compassionate release. It has recently attempted to do exactly that in another case before this Court.  That result is unacceptable for two reasons.  First, it undermines Congress’s intent in passing the First Step Act.  Second, it is inhumane....

It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table.  See Erik Luna & Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413, 1414–15 (2010).  As to terms such as this one, plea agreements are contracts of adhesion.  The Government offers the defendant a deal, and the defendant can take it or leave it.  Id. (“American prosecutors . . choose whether to engage in plea negotiations and the terms of an acceptable agreement.”).  If he leaves it, he does so at his peril.  And the peril is real, because on the other side of the offer is the enormous power of the United States Attorney to investigate, to order arrests, to bring a case or to dismiss it, to recommend a sentence or the conditions of supervised release, and on and on.  See Robert H. Jackson, The Federal Prosecutor, 24 J. Am. Judicature Soc’y 18, 18 (1940).  Now imagine the choice the Government has put Funez Osorto to.  All that power — and the all too immediate consequences of opposing it — weighed against the chance to request release in desperate and unknowable circumstances that may not come to pass.  That Faustian choice is not really a choice at all for a man in the defendant’s shoes.  But the Court has a choice, and it will not approve the bargain.

That leaves only one question, which is why?  Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?  Defendants released through the compassionate release program are less than a tenth as likely to recidivate as the average federal prisoner.  Inspector General Report at 49–50.  And the Department of Justice itself estimates that broader use of compassionate release could save taxpayers millions and free desperately needed space in BOP facilities.  Id. at 45–48. The waiver of compassionate release is senseless.

Judge Breyer asks a lot of good questions throughout this great opinion, but the final one seems to me to be depressingly easy to answer. He asks: "Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?".  The answer, as I see it, is that so many prosecutors get so accustomed to exercising their tremendous discretion in this way that it now seems to be a professional expectation.

May 12, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Vera Institute of Justice issues new guidance brief urging action to respond to coronavirus in correctional facilties

As detailed in this press release, yesterday "the Vera Institute of Justice issued a guidance brief urging Attorney General Barr, governors, sheriffs, and corrections administrators to take immediate action to stem the explosion of COVID-19 cases in jails, prisons, and detention centers."  Here is more from the press release:

Warned for weeks about the impending crisis, people behind bars are now facing the consequences of slow and inadequate government responses.  Thousands of lives are at risk.

As of Sunday, May 10, 10 of the 15 biggest COVID-19 clusters in the country are jails and prisons, including two prisons in Ohio with a combined total of more than 4,000 people infected.  State facilities in Arkansas, Illinois, Kansas, Michigan, and Texas, as well as a federal prison in California with more than a 70 percent positive test rate, are also included in the top 15.

Vera calls on leaders at all levels of federal, state, and local government to address the looming crisis by:

  • Responsibly and rapidly reducing populations behind bars, beginning with those at the highest risk of illness and death due to COVID-19, including those who are elderly or have serious underlying medical conditions.
  • Testing as widely as possible. If mass testing is unavailable, jails, prisons, and detention centers should implement daily sick calls for all incarcerated people to identify potential infections early.
  • Providing personal protective equipment (PPE) to everyone in facilities and increasing access to showers and laundry daily to prevent infection and spread.
  • Ensuring frequent medical and mental health services in quarantine and medical isolation, including providing ample access to medical staff multiple times a day for routine care, monitoring symptoms, and responding to queries, in addition to addressing emergent issues.

All the recommendations align with public health standards and Vera’s values of ending mass incarceration while ensuring the safety and human dignity of those who live and work in the criminal legal system....

During the first week of May, positive cases in U.S. prisons increased 39 percent over the previous week, for a total of more than 20,000 cases and 325 known deaths of people in jails and prisons.

May 12, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

Wouldn't any effort by inmates to get COVID-19 be a sad commentary on how awful their jail is?

The question in the title of this post was my reaction to this story from the Los Angeles Times headlined "Inmates try to infect selves with coronavirus, sheriff says." Here are excerpts:

The security videos show inmates at the North County Correctional Facility passing around containers of water, taking turns taking swigs, or breathing into a single mask.

Sheriff Alex Villanueva said Monday that the actions were part of a scheme to get sick that led to a coronavirus outbreak in the jail last month.  Eventually, 30 people in the two modules where the videos were recorded tested positive for the virus and two have since been released, said Asst. Sheriff Bruce Chase.

“It’s sad to think that someone deliberately tried to expose themselves to COVID-19,” Villanueva said. “Somehow there was some mistaken belief among the inmate population that if they tested positive that there was a way to force our hand and somehow release more inmates out of our jail environment — and that’s not gonna happen.”

He said investigators interviewed individuals involved but no one admitted to the scheme. “I think their behavior itself is what convicts them,” Villanueva said.  It’s unclear how the disease entered the two modules where the security videos were taken and whether inmates knew someone was sick when they were captured on video sharing the items....

As of Monday, 357 inmates in L.A. County jails have tested positive for the coronavirus infection.  The number of infections has more than tripled since April 30.  Officials, however, are conducting more testing, including of all new bookings.  Of the inmates who have been infected, 117 have fully recovered.  More than 4,500 inmates are being held in quarantine, meaning they had been housed in a unit or had close contact with someone who either tested positive or is waiting for a result.  Nearly 2,000 of them are housed at the North County jail in Castaic where the videos were taken.

Villanueva has significantly reduced the jail population in response to the pandemic. As of Monday, the jails, which typically house 17,000 people, held 11,723 inmates, according to the Sheriff’s Department.  Some critics contend that L.A. County has not done enough. A recent class-action lawsuit claims that inmates are not being tested even when they show symptoms and lack sufficient space for physical distancing.  The lawsuit claims inmates don’t have enough soap or a safe way to dry their hands.

Patrisse Cullors, an activist whose uncle is a lead plaintiff, said in a statement that Villanueva is unable to protect people in L.A. County jails. She called on him to release more people and on the Board of Supervisors to move to offer COVID-19 testing to all prisoners and staff.  “In an attempt to demonize incarcerated people, he is taking a page right out of Trump’s playbook by gaslighting those who are already vulnerable and in absolute fear,” Cullors said.  “Contrary to the Sheriff’s allegations, what I’ve been hearing from prisoners is that there isn’t enough soap, there is no hot water, that sheriff deputies are taunting folks inside by coughing in their presence, telling them they’re going to die of COVID.”

The Sheriff Civilian Oversight Commission voted last week to subpoena Villanueva to appear at its next meeting to discuss his handling of the coronavirus outbreak in the jails. It is the first use of the power approved by voters in March. Inspector General Max Huntsman pointed to The Times’ reporting on one dorm at the Men’s Central Jail where 100 people were housed in bunks that are three feet apart and said he’s received complaints of bottlenecks in testing inmates with symptoms.  He said 43 of the people in that dorm appeared eligible for release.

Whatever the truth of the situation reflected in these videos, I agree that it would be terribly sad that individuals would deliberately try to expose themselves to the serious and potentially deadly coronavirus.  But if they did, it would suggest to me that inmates perceive time spent in the North County jail in Castaic to be even more awful than contracting a serious and potentially deadly disease.  As I see it, Sheriff Alex Villanueva ought to think hard about what this alleged behavior says about the jail he runs and how it is now experienced by those locked within it.

May 12, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

May 11, 2020

Federal Defenders write to members of Congress to detail BOP/DOJ failings in response to COVID-19

I just received a copy of this lengthy letter from the Federal Public & Community Defenders to Members of Congress. I recommend the 13-page letter in full, and here are some excerpts (with footnotes omitted):

We are grateful for the continued interest in the views of the Federal Public and Community Defenders (“Federal Defenders”) by Congress during the COVID-19 crisis. Federal Defenders and other counsel appointed under the Criminal Justice Act represent 90 percent of all federal defendants. We write because vulnerable individuals in federal detention need your help to protect them from serious illness or death. The following measures would provide badly needed relief:

  • A presumption of release under the Bail Reform Act, absent clear and convincing evidence that a person poses a specific threat of violence;
  • Broader tools to enable courts to release or transfer — even temporarily — individuals already sentenced, including broader authority to modify existing sentences, grant furloughs, and grant compassionate release; and
  • Ongoing, universal testing for all incarcerated individuals and staff, including at privatecontract facilities....

In just over a month, forty-eight individuals in BOP custody have died from COVID-19.  COVID-19 is tearing through BOP facilities; incarcerated individuals are being infected at a rate more than 6.5 times higher than in the United States.  Despite this, BOP has transferred less than 1.5 percent of the over 174,000 individuals in its custody to the relative safety of home confinement.  These cold numbers are proof of the government’s abdication of its duty.  That “moral and constitutional duty,” House Judiciary Committee Chairman Jerry Nadler has explained, requires DOJ to “prevent additional deaths among those who are detained or imprisoned under our laws.”

Congress should not be fooled by DOJ and BOP’s empty promises.  Federal judges around the country have used unusually blunt terms to describe the government’s behavior: “an outrage,” “deliberate indifference,” “Kafkaesque,” “illogical,” “alarming,” “unfathomable,” “offends the Court,” and “shocking[].”

A court-ordered inspection and evaluation last week of the Metropolitan Detention Center (MDC) in Brooklyn, the largest pretrial BOP facility in the country, laid bare DOJ and BOP’s false claims about their response to COVID-19.  The former Chief Medical Officer of New York City’s Correctional Health Services wrote in his report he was “alarmed by the facility’s failure to implement simple procedures” consistent with Centers for Disease Control and Prevention (“CDC”) guidelines, and he concluded there were “multiple systemic failures” that placed incarcerated individuals and staff at grave risk.  In response, the MDC has changed nothing.

Federal correctional officers everywhere are speaking out in the press, a national lawsuit, and by filing complaints with the U.S. Occupational Safety and Health Administration (“OSHA”) about insufficient PPE, non-existent social distancing, and other deviations from CDC guidance.  Under AG Barr’s watch, DOJ and BOP have ignored Congressional oversight, court directives, and whistleblowers.  DOJ and BOP have failed to fulfill their obligations to the American people, or to use the powers that Congress has given them. We urge Congress to take immediate and decisive action that does not rely on DOJ or BOP’s discretion.....

We entreat Congress to take immediate action.  Action to protect incarcerated individuals, prison employees, and our communities by requiring DOJ and BOP to implement basic and humane measures to prevent the spread of COVID-19 at all federal detention facilities. Action to prevent prosecutors from needlessly opposing the release of vulnerable individuals who pose no specific threat of violence.  And action to allow courts to release responsibly or transfer temporarily at-risk individuals to the safety of the community.

May 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Might getting more technology and more lawyers (as well as more masks) to prisoners help create a turning point for criminal justice change?

The question in the title of this post is my reaction to this notable news from Politico, headlined "Twitter CEO gives $10M to help prisons battle coronavirus: The donation will buy 10 million face masks and other equipment for people who are incarcerated and corrections employees." Here are excerpts:

Twitter CEO Jack Dorsey pledged $10 million Monday to help U.S. prisons battle the ongoing coronavirus pandemic as inmates living in confined quarters remain particularly vulnerable to the disease.  The donation to REFORM Alliance, a criminal justice advocacy group led by CNN analyst Van Jones, will buy 10 million face masks and other personal protective equipment for people who are incarcerated, as well as correctional officers, health care workers and other prison employees.

The money comes from Dorsey's #startsmall initiative, which he flooded with $1 billion in April using equity from his mobile payment company, Square.  Since then, funds have been distributed to organizations setting up testing sites and assisting health care workers, as well as battling hunger and domestic violence, among other causes.

“The criminal justice system needs to change," Dorsey said in a statement. "Covid-19 adds to the injustices and REFORM is best suited to help." REFORM Alliance, which counts hip-hop artists Meek Mill and Shawn "Jay-Z" Carter and internet billionaire Michael Rubin as founding partners, was created last year to reduce the nation's incarceration rate through changes to probation and parole policies.

The group has since launched a campaign to provide much-needed safety equipment to prisons.... REFORM Alliance also has called for elderly and at-risk inmates to be released to home confinement, for jail terms for technical violations and parole office visits to be suspended, and for inmates to receive free access to medical care, hand sanitizer and protective gear, among other measures.  The group will release a video today called #AnswerTheirCall and circulate a petition that demands public officials take action, both of which Dorsey and others are expected to promote on social media.

“Not only will this gift help us protect millions from the threat of Covid-19, but this level of support from a tech titan marks a turning point for the criminal justice reform movement," Jones said in a statement.

I am very pleased to see an eight-figure pledge to the criminal justice reform cause, and the REFORM Alliance has been doing great work in this space both before and during our COVID pandemic.  The group's new public service announcement, which concludes with an emphasis on how the coronavirus has impacted prison populations, is quite effective, and I am confident REFORM will put its new resources to good use.

That said, when I think about what brings about real dramatic changes in society, I think about disruptive technologies and disruptive people.  Twitter and other social media certainly counts as disruptive technologies, and yet prisoners have precious little access to these critical modern communication platforms.  Because we do not see regular posts and tweets coming from the mass number of humans that are caged in our prisons, we too readily forget about the mass number of humans that are caged in our prisons.  I do not know if this Twitter CEO could somehow pledge 10 million tweets to incarcerated persons, but I do want to believe that a lot more people would care a lot more about prisoners if the extraordinary humanity of all those incarcerated were all that was filling up our feeds in the weeks and months ahead.

As for disruptive people, my job as a law professor has me always thinking about lawyers and the dramatic changes they can bring.  Coming off my last posting, which notes that more prisoners have dies from COVID in weeks than have be executed in the last decade, I am still reflecting on the dramatic impact that lawyers have had on the administration of the death penalty in the last two decades.  The 75%+ decline in death sentences and executions during this period has been largely the result of the extraordinary work of an extraordinary number of lawyers litigating (and lobbying) aggressively and effectively against capital punishment.  

Of course, many lawyers have been litigating (and lobbying) aggressively and effectively against mass incarceration, but the problems and challenges are so huge and complex, more lawyers are always needed.  Notably, a $10 million pledge would be enough to provide a grant of $100,000 to one hundred lawyers to spend the next year representing prisoners.  With plenty of prisoners needing legal help, and plenty of law students graduating into an uncertain legal market, I would love to see funding that might allow creating a small prison litigation army to help take on the now extra deadly excesses of incarceration nation. 

(I especially love imaging other tech titans funding this project, starting with this article's list of five persons whose personal wealth has each already reportedly grown over $2 BILLION in 2020:  "Jeff Bezos, the founder and chief executive of Amazon has seen his wealth rise by $25 billion as of April 15, 2020; Elon Musk, chief executive of Tesla and founder of SpaceX: up $5 billion; MacKenzie Bezos, philanthropist, and the ex-wife of Amazon chief executive Jeff Bezos: up $8.6 billion; Eric Yuan, chief executive and founder of Zoom: up $2.58 billion; Steve Ballmer, owner of Los Angeles Clippers: up $2.2 billion."  If the select members of this group were just to give just 1% of their added wealth from 2020 to the cause, we could fund a large army of many thousands of lawyers that surely could help produce a "turning point for the criminal justice reform movement.")

May 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

The new death penalty: COVID has now killed more US prisoners in weeks than the US death penalty has in over a decade

As reported in prior posts here and here, all scheduled executions in the United States have been postponed in the last two months due in large part to the global pandemic.  But a pause in the carrying out of formal death sentences in the United States has been replaced by a new kind of death penalty as COVID has turned all sorts of other sentences in to functional death sentences.

The UCLA Covid-19 Behind Bars Data Project has been doing a terrific job keeping an updated count, via this spreadsheet, of confirmed COVID deaths of persons serving time in state and federal facilities.  As of midday Monday, May 11, the UCLA accounting had tabulated 341 "Confirmed Deaths (Residents)."  This considerable number is sad and disconcerting on its own terms, but it is even more remarkable given that it amounts to more prisoner deaths than has been produced by carrying out formal death sentences in the United States for the entire period from 2010 to 2020. According to DPIC data, there were a total of 329 executions from the start of 2010 through today.

The Marshall Project has also been doing a great job reporting on COVID cases and deaths in penal facilities nationwide: on April 24 it reported 131 deaths of prisoners, and on May 8 its reported prisoner death count was up to 304.  If that rate of growth were to continue for months to come, more persons serving time in state and federal facilities may be killed by COVID than have been executed in the United States in the whole modern era of the US death penalty.

May 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

May 10, 2020

"Criminal Law in Crisis"

The title of this post is the title of this timely new essay authored by Benjamin Levin and now available via SSRN.  Here is its abstract:

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state.  I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list.  Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way unusual in this respect (i.e., similar observations certainly could be and have been made about the pandemic’s exposure of long-lasting problems associated with the health care/insurance system, the tethering of social benefits to employment, pervasive inequality, and many other features of U.S. political economy).  Nevertheless, the current moment provides an opportunity to appreciate the ways in which some of the most problematic aspects of criminal law in times of crisis are basic features of the U.S. carceral state in times of “normalcy.”

To this end, my argument proceeds in two Parts, each addressing one of the aspects or pathologies of U.S. criminal policy that the pandemic has exacerbated.  In Part I, I address the absence of “sentencing realism” or, perhaps more accurately, the failure to consider the reality of jails and prisons when imposing sentences or pretrial detention.  In Part II, I address the basic limitations of thinking of “the criminal system” as a single monolithic “system,” or, even, as “systematic” at all.  What do commentators and lawmakers miss when they suggest or assume that criminal law and its administration are the same in a rural county in Colorado as in an urban county in New York?  In each Part, I explain how the pandemic has made each phenomenon more easily identifiable, but also how each phenomenon defined the criminal system in pre-coronavirus days.  Ultimately, I argue that the “crisis” frame provides an opportunity for reform, but we must not allow the crisis frame to obscure the ways in which the criminal system was in crisis well before the first COVID-19 tests came back positive.

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