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May 23, 2020

A big list for a whole week's worth of COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

I did not get a chance to do a mid-week review of COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) because this past work week seemed extra busy — though these days that just means staring at different types of websites from different computers in my house.  In any event, I have been told that my prior lists of district court rulings grants of sentence reductions that I find on Westlaw continue to be useful, so I will continue the listing tradition previously found in recent posts (which are all linked below)

My last post seemed to cover most grants through May 15 though one from that date makes this latest list.  And because I have gone a whole week without a list, this one is extra long (with 27 cases!).  I have broken up the list in groups of five just for ease of review (and I have added a few silly pop-culture comments just to try to lighten things up a bit): 

 

United States v. Moore, No. 3:16-CR-00171-JO, 2020 WL 2572529 (D Ore. May 21, 2020)

United States v. Stephenson, No. 3:05-CR-00511, 2020 WL 2566760 (SD Iowa May 21, 2020)

United States v. Galloway, No. RDB-10-0775, 2020 WL 2571172 (ED Mich. May 21, 2020)

United States v. Parker, No. 2:98-cr-00749, 2020 WL 2572525 (CD Cal. May 21, 2020) (full name "Richard Wayne Parker" of interest to Spiderman and Batman?)

Loyd v. United States, No. 15-20394-1, 2020 WL 2572275 (ED Mich. May 21, 2020)

 

United States v. Rahim, No. 16-20433, 2020 WL 2604857 (ED Mich. May 21, 2020)

United States v. Readus, No. 16-20827-1, 2020 WL 2572280 (ED Mich. May 21, 2020)

United States v. Vence-Small, No. 3:18-cr-00031 (JAM), 2020 WL 2572742 (D Conn. May 21, 2020)

United States v. Pippin, No. CR16-0266, 2020 WL 2602140 (WD Wash. May 20, 2020) (no mention of what this Mr. Pippin thought of MJ Last Dance documentary)

United States v. Schneider, No. 14-cr-30036, 2020 WL 2556354 (CD Ill. May 20, 2020)

 

United States v. Doshi, No. 13-cr-20349, 2020 WL 2556794 (ED Mich. May 20, 2020)

United States v. White, No. 13-cr-20653-1, 2020 WL 2557077 (ED Mich. May 20, 2020)

United States v. Hill, No. 3:19-cr-00038 (JAM), 2020 WL 2542725 (D Conn. May 19, 2020) (not 2012 crack case that went to SCOTUS on FSA pipeline issue)

United States v. Dorsey, No.  CR16-0138-BLW-JCC, 2020 WL 2562878 (WD Wash. May 19, 2020) (also not 2012 crack case that went to SCOTUS on FSA pipeline issue)

United States v. Sarkisyan, No. 15-cr-00234-CRB-15, 2020 WL 2542032 (ND Cal. May 19, 2020)

 

United States v. Bright, No. 2:15CR00015-005, 2020 WL 2537508 (WD Va. May 19, 2020)

United States v. El-Hanafi, No. 10-CR-162 (KMW), 2020 WL 2538384 (SDNY May 19, 2020)

United States v. Copeland, No. 02-cr-01120 (FB), 2020 WL 2537250 (EDNY May 19, 2020) (cue COVID-era version of Police classic "Don't Stand So Close to Me")

United States v. Bischoff, No. 17-cr-196-JD, 2020 WL 2561423 (D N.H. May 18, 2020)

United States v. Anderson, No. 15-cr-30015, 2020 WL 2521513 (CD Ill. May 18, 2020)

 

United States v. Rountree, No. 1:12-CR-0308 (LEK), 2020 WL 2610923 (NDNY May 18, 2020)

United States v. Cotinola , No. 13-CR-03890-MV, 2020 WL 2526717 (D N.M. May 18, 2020) (meth case from Albuquerque for any Breaking Bad fans out there)

United States v. Bennett, No. 05 Cr. 1192-1 (NRB), 2020 WL 2539077 (SDNY May 18, 2020)

United States v. Agomuoh, No. 16-20196, 2020 WL 2526113 (ED Mich. May 18, 2020)

United States v. Schafer, No. 6:18-CR-06152 EAW, 2020 WL 2519726 (WDNY May 18, 2020)

 

United States v. Johnson, No. 15-cr-125 (KBJ), 2020 WL 2515856 (DDC May 16, 2020)

United States v. Arreola-Bretado, No. 3:19-cr-03410-BTM, 2020 WL 2535049 (SD Cal. May 15, 2020)

More than two dozen grants in a week is remarkable, and this is with still very few Friday rulings appearing on Westlaw as of midday Saturday.  Moreover, as I have mentioned in a number of prior posts, I am quite certain that my Westlaw listings do not represent all sentence reductions being granted by federal courts these days.  In fact, the Marshall Project article flagged here reported that the latest BOP "figures show that since early April, 268 prisoners nationwide received compassionate release."  That figure suggests an around 40 grants per weeks, whereas I have only been seeing and reporting in these listings only about half that many based on just Westlaw searches.

Prior recent related posts since lockdowns:

May 23, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

"Boxed Into a Corner: The Fight to Ban Employers from Boxing out Deserving Job Applicants on the Basis of Criminal Record"

The title of this post is the title of this new paper recently posted to SSRN and authored by Mariah L. Daly, 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 remains so timely and important.  Here is this paper's abstract:

Between 70 and 100 million adults have a criminal record of some kind that are revealed by criminal background checks.  One of the most severe and pervasive collateral consequences is difficulty securing gainful employment.  Ban-the-Box reform is crucial as a starting point for fair chance hiring, especially in the age of rapidly developing technology and the largely unfettered ability to get information.  The availability of criminal records has functioned less as a “public safety” precaution and more like a scarlet letter branded on the chest of millions Americans.  Demanding unnecessary disclose of criminal records before a conditional job offer hinders reintegration, increases recidivism, jeopardizes public safety, sabotages the economy, affronts human dignity, and causes devastating harm to society overall.

This paper argues that Ban-the-Box laws should be expanded and made uniform across jurisdictions to help prevent against unjust discrimination based on criminal record.  The vast differences in the levels of protection provided across Ban-the-Box jurisdictions and their shortcomings are analyzed and model Ban-the-Box legislation that incorporates concepts from the most protective existing laws is proposed.

May 23, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

YET 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 23, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

May 22, 2020

Sharp review of discouraging (and opaque) realities surrounding BOP release of some offenders to home confinement

As regular readers know, I have highlighted a few high-profile cases of federal prisoner being moved into home confinement by the Bureau of Prisons. But I cannot report on all the cases in which seemingly vulnerable inmates have been denied such a transfer, in part because there are far too many of those cases to cover in this space. This notable new Marshall Project piece helps document this reality, and the full headline provide a summery: "Michael Cohen and Paul Manafort Got to Leave Federal Prison Due to COVID-19. They’re The Exception. Just a small fraction of federal prisoners have been sent home. Many others lack legal help and connections to make their case." Here are excerpts from a lengthy article worth reading in full:

New data show that [Michael] Cohen, along with former Trump campaign manager Paul Manafort, released last week, are among the relatively few federal prisoners to win early release in the seven weeks since Attorney General William Barr cited the pandemic in ordering more federal prisoners to be let out. During that time, the number of people in home confinement increased by only 2,578, about 1.5 percent of the nearly 171,000 people in federal prisons and halfway houses when Barr issued his memo.

Cohen, President Donald Trump’s former personal lawyer, was sentenced to three years in prison, and Manafort to seven and a half years. Manafort has served less than a third of his sentence, so he, too, did not meet the federal criteria for early release, although he and Cohen do have health conditions that put them at added risk if they contract the virus....

Groups and relatives advocating for the release of prisoners at risk from the virus say they don’t begrudge well-connected people achieving that goal. The problem, they said, is that many other people who could meet Barr’s criteria languish in prison, without legal help, unable to understand the complex process or lacking connections to help them as the pandemic spreads. As of Wednesday, the official tally had 59 federal prisoners dying from COVID-19 and more than 4,600 testing positive, though health experts believe that’s almost certainly an undercount.

Melissa Ketter, a Minnesota woman whose daughter has served just over half of her sentence for a federal nonviolent drug crime, said she almost cried when she heard about Cohen’s release."I'm happy for him don’t get me wrong — but at the same time it was like, the rich white guy gets out early. I don’t wish for bad things to happen to these people, but it’s like can everybody be treated the same?" Ketter said.

The release process has been marked by foot-dragging and confusion, critics say, and a federal judge in a ruling Tuesday labeled the results “paltry.” The Bureau of Prisons won’t release data, won’t answer questions and keeps shifting policy on who qualifies for release, according to Georgetown Law professor Shon Hopwood, an expert on criminal justice reform. “The Bureau of Prisons is operating all behind closed doors, and that’s a big part of the problem,” Hopwood said....

The tally on people in home confinement and other federal prison data, obtained from the Bureau of Prisons and Congress, did not itemize how many people finished their sentences in the last seven weeks and are no longer included in the count.  It also did not specify how many prison-to-home transfers were approved by the bureau, as was the case with Manafort and Cohen, and how many were ordered by judges — many over objections from federal prosecutors, despite Barr’s order.

The total population in federal custody has gone down by about 10,800 people since April 2, the data show.  That includes emergency releases.  But it also includes people whose sentences were set to end during the past seven weeks, a figure the bureau on Thursday put at about 7,600.  The data did not specify how many new prisoners the bureau accepted.... 

Prisoners previously had to finish 90 percent of their sentence before they could be sent to home confinement. But the relief law Congress passed in March gave the attorney general broad powers to release prisoners during the pandemic. That process is internal, with the Bureau of Prisons able to select people for release and prisoners able to request release. But if bureau officials deny a request for home confinement, a prisoner can’t appeal.

By contrast, compassionate release allows prisoners to ask a federal judge for release if they show “extraordinary and compelling” reasons under the 2018 First Step Act. But many prisoners lack the education or skills to navigate the courts, and successful attempts usually require a lawyer.  The latest figures show that since early April, 268 prisoners nationwide received compassionate release. Since Trump signed the law in 2018, only 144 people had been granted such release before April 2, bureau data show.

The Department of Justice has been fighting many coronavirus-related requests for compassionate release in court, according to records and advocates monitoring the process. In a case decided this week, government lawyers called compassionate release a “Get Out of Jail Free Card” and referred to the pandemic as “a red herring.”  Instead, the Bureau of Prisons is starting to put people in home confinement, but slowly, according to Kevin Ring, president of FAMM, a national criminal justice advocacy group.

“I think the mass effort we’re putting into compassionate release is forcing them to designate more people for home confinement because I think they’d rather have these people in home confinement than completely released,” he said of federal officials. “It feels totally contradictory — you’re saying that ‘we’re doing everything we can to get people out of harm’s way,’ but you have this tool that you’re not using at all.”

May 22, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Full issue Columbia Human Rights Law Review devoted to capital sentencing practices and problems

A helpful reader alerted me to the latest issue of the Columbia Human Rights Law Review, which has these nine terrific-looking article about the ugly realities of capital sentencing past and present.  Here are the titles and links:

Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment by Jeffrey Fagan

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017) by Catherine M. Gross, Barbara O'Brien, and Julie C. Roberts

Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row by Hannah L. Gorman and Margot Ravenscroft

Valuing Black Lives: A Case for Ending the Death Penalty by Alexis Hoag

Double Duty: The Amplified Role of Special Circumstances in California’s Capital Punishment System by Mona Lynch

A Systematic Lottery: The Texas Death Penalty, 1976 to 2016 by Scott Phillips and Trent Steidley

Race, Ethnicity, and the Death Penalty in San Diego County: The Predictable Consequences of Excessive Discretion by Steven F. Shatz, Glenn L. Pierce, and Michael L. Radelet

Hidalgo v. Arizona and Non-Narrowing Challenges by Sam Kamin and Justin Marceau

Restoring Empirical Evidence to the Pursuit of Evenhanded Capital Sentencing by Joseph J. Perkovich

May 22, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Recommended reading, Who Sentences | Permalink | Comments (0)

May 21, 2020

Federal prison population continues historic drop with BOP now reporting 166,647 total federal inmates

Another Thursday brings another new check on the federal Bureau of Prisons' updated general population numbers (though BOP took longer than usual to get the updated numbers posted today).  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 three weeks into May, and the new numbers at this webpage continue to show weekly declines this month checking in around 1,200 on average: the population dropped from 170,435 (as of April 30) to 169,080 (as of May 7, 2020) to 167,803 (as of May 14, 2020) to now a BOP reported total of 166,647.

As I have detailed before, a reduced inflow of prisoners — due, I presume, to many sentencings and reportings to prisons being delayed — is likely playing the largest role in the significant population declines in recent months.  But compassionate release and other outflows are also likely a part of the story as well, and I continue to wonder what the new normal for the federal prison population might look like in the wake of the remarkable disruptions caused by the coronoavirus. 

A few of many prior related posts:

May 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

"Evidence-Based Sentencing Reform: The Right Policy For Ohio"

The title of this post is the title of this short white paper authored by Andrew Geisler of The Buckeye Institute.  Here is how it starts and concludes:

Senate Bill 3 proposes commonsense and comprehensive reforms to Ohio drug sentencing law.  The bill seeks to hold those in the business of selling drugs accountable for their conduct, while ensuring those convicted of nonviolent drug possession get the treatment that they need.  To do that, the bill reclassifies some offenses and changes the drug quantities required to convict for others. The bill relies upon extensive data-driven research on the habits of drug users and dealers, and adopts drug-quantity thresholds largely consistent with the Ohio Criminal Justice Recodification Committee’s 2017 recommendations.  Modeled on the committee’s approach and recommendations, Senate Bill 3 takes significant strides toward making Ohio’s drug-sentencing laws more effective, flexible, and just....

Senate Bill 3 reforms Ohio’s drug sentencing laws without making it easier to traffic drugs.  The bill takes a commonsense, evidence-based approach to ensure that Ohio law adequately reflects the complex nature of addiction and drug trafficking by providing treatment for those possessing drugs and by continuing to hold drug traffickers accountable for their crimes.

Prior related recent post:

May 21, 2020 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

Florida Supreme Court seemingly finds way avoid retroactive application of proper determination of who is exempt from execution under Atkins

As reported in this local article, headlined "Conservative Florida Supreme Court reverses itself again on death penalty legal issue," the top court in Florida authored this lengthy opinion which seems to permit the state to go forward with executing a person who would be exempt from execution under the Supreme Court's Atkins decision prohibiting the execution of the intellectually disabled. Here are the press details:

Harry Franklin Phillips, a convict who shot a Miami parole officer to death in 1982, was hoping to get his death sentence reversed by convincing the courts that he is intellectually disabled. But the Florida Supreme Court, backtracking on its own case decided only years ago, on Thursday ruled that Phillips isn’t ineligible, the court’s latest reversal in how sentences in major cases are meted out.

The court ruled that an earlier decision allowed for the broadening of who can be deemed intellectually disabled — generally someone with an IQ of 70 or less — does not apply “retroactively” to older cases such as Phillips’.  The court ruled 4-1. The only dissenter was Justice Jorge Labarga....

The decision in Phillips’ case drew immediate criticism from opponents of the death penalty, who say the Florida Supreme Court has yet again thumbed its nose at the legal concept of stare decisis, or making decisions drawing from legal precedents. “I am personally shocked at the Court’s audacity and frankly its meanness,” said defense lawyer Stephen Harper, of Florida International University’s Florida Center for Capital Representation. “So many people who were already granted relief by the Florida Supreme Court are now being deprived of that relief by the Florida Supreme Court. “And stare decisis has been abandoned, and this will have a much more devastating effect on the public’s trust in the judicial system.”

Two years ago, the Florida Supreme Court backtracked on allowing certain juveniles — who had been eligible for parole because their murder convictions were from decades ago — to get new sentencing hearings. In January, the Florida Supreme Court reversed itself in ruling that unanimous jury verdicts were not needed to mete out the death penalty, a ruling excoriated by opponents of capital punishment. Florida law, however, still require juries to be unanimous in handing down a death sentence.

In Hall v. Florida, 572 U.S. 701 (2014), the US Supreme Court said that the "old" rule that Florida had used to determine who was ineligible to be executed under Atkins was "invalid under the Constitution’s Cruel and Unusual Punishments Clause."  But now the Florida Supreme Court is saying the state does not have to apply the constitutionally proper Atikns rule to "old" cases decided before Hall.  That strikes me as wrong because Atkins is fundamentally a substantive constitutional rule and its proper application should be fully retroactive because it involves "prohibiting a certain category of punishment for a class of defendants because of their status." Montgomery v. Louisiana, 136 S. Ct. 718, 728-29 (2016).  If the Constitution demands a certain approach to determining the applicable "class of defendants" (which is what Hall says), I do not think a state can dodge its retroactive application.

This matter seems sure to end up in federal courts, and it will be interesting to see how it plays out in the years ahead. 

May 21, 2020 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Feds asking SCOTUS to stay judicial order to transfer vulnerable prisoners "out of Elkton through any means"

Last month, as detailed here, US District Judge James Gwin granted a preliminary injunction ordering federal officials to identify, and then start moving out, medically vulnerable prisoners from the Elkton federal prison in Ohio.  Federal officials appealed this order to the Sixth Circuit, but a Sixth Circuit panel two weeks ago refused to stay it.  And a few days ago, Judge Gwin issued this follow-up order which stated that "Respondents have made poor progress in transferring subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction Order."

Though one might hope federal officials would now really focus on making better progress moving medically vulnerable prisoners from the Elkton prison, they are still trying to get the order stayed by now turning to the Supreme Court.  Amy Howe here at SCOTUSblog reports on the filing from last night, while also providing useful context for this notable battle: 

U.S. Solicitor General Noel Francisco ... new filing ... was on behalf of the federal Bureau of Prisons and federal prison officials, asking the justices to put a temporary hold on an order by a federal district court that would require the BOP to remove or transfer as many as 800 elderly or medically vulnerable inmates from a federal prison in Ohio where nine inmates have died from COVID-19.

The case was filed last month by inmates at FCI-Elkton, a low-security prison in Ohio that houses 2,500 inmates.  The inmates argued that, as a result of COVID-19, conditions at the prison violated their Eighth Amendment right to be free of cruel and unusual punishment.  In an order issued on April 22, the district court ordered the BOP to “determine the appropriate means of transferring” elderly and medically vulnerable inmates out of the prison — for example, by compassionate release or parole or by moving them to another federal facility.

Yesterday, after the district court was unsatisfied with the BOP’s efforts to comply with its original order, it ordered the BOP to revise the criteria for deciding whether an inmate is eligible for home confinement and to quickly reevaluate whether inmates might be eligible under the new criteria.  It also instructed the BOP to explain, within seven days, why ineligible inmates could not be moved to another prison “where social distancing is possible.”

The federal government asked the justices to put these rulings on hold while it appeals to the U.S. Court of Appeals for the 6th Circuit and, if necessary, the Supreme Court.  The government emphasized that, “even in normal times, an order requiring the transfer or release of ‘prisoners in large numbers * * * is a matter of undoubted, grave concern’” that runs the risk not only of “jeopardizing public safety” but also interfering in the management of prisons.  Moreover, the government added, the inmates are unlikely to prevail on the merits of their claim: Although “COVID-19 presents significant health risks,” the BOP has worked hard to reduce the risk of the virus in the prison, and the number of inmates in the hospital is on the decline.

The government’s request went to Justice Sonia Sotomayor, who fields emergency appeals from the 6th Circuit.  She ordered the inmates to respond to the government’s request by Friday, May 22, at 10 a.m. EDT.

I am inclined to predict that there is at least one Justice inclined to vote against a stay and at least one Justice inclined to vote for a stay (readers can probably guess which ones). It will be quite interesting to see how the Chief Justice steers the Court forward on this matter.

Prior related posts:

May 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

After extended resistance (and likely lots of legal fees), Lori Loughlin and her husband agree to plead guilty in college admission scandal with fixed short prison sentence

As reported in this CNN piece, headlined "Lori Loughlin and Mossimo Giannulli agree to plead guilty in college admissions scam," perhaps the highest profile remaining defendants in the college admissions scandal have now finally capitulated the prosecutorial pressure and decided to plead guilty. Here are the details:

Actress Lori Loughlin and her husband, fashion designer Mossimo Giannulli, have agreed to plead guilty to conspiracy charges in connection to their role in the college admissions scam, the US Attorney's Office in the District of Massachusetts said.

Loughlin, 55, and Giannulli, 56, had been accused of paying $500,000 to get their two daughters into the University of Southern California as fake crew team recruits. They had pleaded not guilty for more than a year and moved to dismiss charges as recently as two weeks ago.

As part of the plea agreement, Loughlin will be sentenced to two months in prison and Giannulli will be sentenced to five months in prison, subject to the court's approval, according to authorities. In addition, Loughlin faces a $150,000 fine, two years of supervised release and 100 hours of community service, and Giannulli faces a $250,000 fine, two years of supervised release and 250 hours of community service.

They are scheduled to plead guilty on Friday at 11:30 a.m., prosecutors said. Loughlin's publicist said she had no comment.

Loughlin will plead guilty to conspiracy to commit wire and mail fraud, and Giannulli will plead guilty to conspiracy to commit wire and mail fraud and honest services wire and mail fraud. The actress, best known for her role as Aunt Becky on the sitcom "Full House," and her husband had previously been charged with three counts of conspiracy.

"Under the plea agreements filed today, these defendants will serve prison terms reflecting their respective roles in a conspiracy to corrupt the college admissions process and which are consistent with prior sentences in this case," said US Attorney Andrew E. Lelling. "We will continue to pursue accountability for undermining the integrity of college admissions."

Loughlin and Giannulli were some of the most famous names wrapped up in the brazen scheme to cheat, bribe and lie in the hyper-competitive college admissions process.  They allegedly paid $500,000 as part of a scheme with Rick Singer, the scam's mastermind, and a USC athletics official to get their two daughters into the university as members of the crew team, even though they did not participate in crew....

If Loughlin and Giannulli had gone to trial and been convicted, they could have faced up to 20 years in prison for the conspiracy charge. "The stakes at trial were really high for these two," CNN legal analyst Elie Honig said. "Had they gone to trial and lost, they were looking at several years each.  So they really cut their losses here by cutting these pleas."

They are the 23rd and 24th parents to plead guilty in the case. Actress Felicity Huffman pleaded guilty to conspiracy last year for paying $15,000 to the scam's mastermind as part of a scheme to cheat on the SATs and boost her daughter's test scores, and she ultimately served 11 days in prison. 

The way that this plea is described in this press release form the US Attorney leads me to suspect that this is a Rule 11(c)(1)(C) plea in which the agreement states "a specific sentence ... is the appropriate disposition of the case [which] ... binds the court once the court accepts the plea agreement."  Sure enough, the Loughlin plea agreement makes clear that it is a (c)(1)(C) plea.  I do not recall many of the other defendants in the college admissions scandal who entered plea agreements having a fixed sentence built into the agreement, though that may well have been because, earlier, neither defendants nor prosecutors were inclined to lock in a particular sentence when it was unclear just what "sentencing price" judges were inclined to attached to this conduct.  Now that a few months seems to be the "norm," these latest defendants and the prosecutors now may have been content to lock in the sentence via the plea deal.

As for the "sentencing price" set here by the parties, Lori Loughlin seemingly got a pretty good deal given how much money was spent seeking to get two kids into college.  On the surface, her case seems somewhat similar to Toby MacFarlane's case; as noted here, he spent $450,000 to get his two kids into USC as fake athletic recruits and received a sentence of six month back in November.  But, were anyone concerned about a possible "celebrity discount," it is important to realize that the "Loughlin family" is getting a total of seven month and federal prosecutors may have had many reasons to believe that Loughlin's culpability was reduced compared to her husband and MacFarlane.

A few prior posts focused on these defendants:

A few of many prior posts on other defendants in college admissions scandal:

May 21, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

May 20, 2020

Michael Cohen reportedly really getting released to home confinement now

According to this new AP piece, "President Donald Trump’s longtime personal lawyer and fixer Michael Cohen will be released from federal prison Thursday and is expected to serve the remainder of his sentence at home, a person familiar with the matter told The Associated Press."  Here is more:

Cohen has been serving a federal prison sentence at FCI Otisville in New York after pleading guilty to numerous charges, including campaign finance fraud and lying to Congress.

He will be released on furlough with the expectation that he will transition to home confinement to serve the remainder of his sentence at home, the person said.  Cohen, 53, began serving his sentence last May and was scheduled to be released from prison in November 2021....

Attorney General William Barr ordered the Bureau of Prisons in March and April to increase the use of home confinement and expedite the release of eligible high-risk inmates, beginning at three prisons identified as coronavirus hot spots. Otisville is not one of those facilities.

Cohen was told last month he would be released to serve the rest of his three-year sentence at home in response to concerns about coronavirus. He had told associates he was expecting to be released earlier this month.

The Bureau of Prisons has placed him on furlough as it continues to process a move to home confinement, the person familiar with the matter said.  The agency has the authority to release inmates on furlough for up to 30 days and has been doing so to make sure suitable inmates, who are expected to transition to home confinement, can be moved out of correctional facilities sooner, the person said.

Prior Michael Cohen posts:

May 20, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, White-collar sentencing | Permalink | Comments (0)

TRAC data report provides snapshot into impact of COVID-19 on referrals for federal criminal prosecution

The Transactional Records Access Clearinghouse (TRAC) has this great new online report under the title "How Is Covid-19 Impacting Federal Criminal Enforcement?". The figures in the report are worth checking out by clicking through, but this introductory text highlights the main story:

Law enforcement agencies across the country have been referring fewer criminal cases to federal prosecutors since the coronavirus pandemic began.  While weekly referrals for federal prosecution during February and the first half of March averaged around 4,500 per week, referrals fell to only 1,800 during the last week of March.  The Trump administration issued new guidance on Sunday evening, March 15, allowing some federal employees to work from home.  Previously, only those at high risk of health problems could telework.

Figure 1 plots the number of referrals recorded as received by these federal prosecutors day-by-day during the first six months of FY 2020 (October 2019 - March 2020). Starting in mid-March the numbers decline sharply. (As the plot shows, normally few referrals are recorded during Saturday or Sunday producing a predicable weekly cycle in the plot. A decline during the holidays over Christmas is also evident.)

Each weekday, U.S. Attorney offices from around the country typically receive hundreds of referrals.  Most of these came from federal investigative agencies.  Some originate from local and state law enforcement.  Each referral is typically assigned to an assistant U.S. attorney who determines whether or not to charge the suspect with committing one or more federal crimes.

I am inclined to guess that this 60% decline in federal prosecutions persisted through April, and that into May there might have started to be a rebound. Whatever the particulars, these TRAC data provide one accounting of how the cornoavirus and lockdowns have dramatically impacts the usual flow of cases into the federal criminal justice system.  Lockdown realities have surely disrupted this flow at other junctures (e.g., indictments, trials/pleas, sentencings), and I suspect it will be many months (maybe even years) before we can take full stock of COVID shock.

May 20, 2020 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"The Shadow Bargainers"

The title of this post is the title of this notable new article authored by Ronald Wright, Jenny Roberts and Betina Wilkinson.  Here is its abstract:

Plea bargaining happens in almost every criminal case, yet there is little empirical study about what actually happens when prosecutors and defense lawyers negotiate.  This article looks into the bargaining part of plea bargaining.  It reports on the responses of over 500 public defenders who participated in our nationwide survey about their objectives and practices during plea negotiations.

The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the “shadow of the trial.”  This is a theory that some defenders embrace and others reject.  Describing the factors they believe to be important in plea negotiations, some public defenders — those who emphasize the importance of collateral consequences or the pre-trial custody of their clients — do not stress the likely outcome at trial.  Instead, these attorneys focus on the wants and needs of clients, hoping to persuade the prosecutor to operate outside a trial-prediction framework.  These defense attorneys might ask the prosecutor to dismiss charges, to divert the defendant out of the system, or to recommend a sentence far below the expected outcome.  Such dispositions based on equitable factors, many of them related to the larger life circumstances of the defendant, point the prosecutor towards an outcome that is independent of any likely trial result or post-trial sentence.  These defense attorneys, we argue, bargain in the “shadow of the client” rather than the shadow of the trial.  Multivariate analysis of the survey answers allows us to identify which background factors identify the attorneys that embrace each of the distinct theories of negotiation.

After asking public defenders about their plea bargaining aspirations, our survey turns to actual negotiation practices.  Here, defenders’ self-reported bargaining methods do not measure up to their declared aspirations.  Their own descriptions of the fact investigations and legal research they typically perform ignore some viable outcomes that their clients might prefer.  Particularly for attorneys who aim to negotiate in the shadow of the client, there is a wide gap between theory and practice.

May 20, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Federal judge finds BOP has "made poor progress in transferring" vulnerable inmates out of federal prison COVID hotspot

Last month, as detailed here, US District Judge Judge James Gwin granted a preliminary injunction ordering federal officials to identify, and then start moving out, medically vulnerable prisoners from the Elkton federal prison.  Federal officials appealed this order, but a Sixth Circuit panel two weeks ago refused to disturb it.  But, as detailed by this new press report concerning this new order from Judge Gwin handed down late yesterday, it appears that BOP is just largely refusing to do what the Judge ordered.  Here are the details from the press report:

A judge said Tuesday that officials have not complied with his directive from last month to clear out the sole federal prison in Ohio to address the spread of coronavirus, which has left nine inmates dead and more than 100 others infected.  U.S. District Judge James Gwin of Cleveland wrote in a new order that the Federal Bureau of Prisons has made “limited efforts” to protect vulnerable inmates at Federal Correctional Center Elkton. He wrote that the bureau must do more to identify, release and transfer the vulnerable inmates.

“Concerningly, Respondents have made poor progress in transferring subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction Order,” Gwin wrote in the 11-page order.

His new order tells the bureau to take more drastic steps, including loosening requirements on who qualifies for placement on home confinement.  If an inmate isn’t eligible for release, officials must explain why in detail, he wrote. Gwin told officials to provide such explanations for at least one-third of the inmates identified at risk every two days until they have accounted for everybody, with the first explanations due to him by the end of business Thursday.

David Carey, an attorney for the American Civil Liberties Union of Ohio, said that “this order represents recognition by the court that the BOP has failed to meet its obligations. We are certainly hopeful they will do so this time around,” he said....

Elkton, located about 100 miles south of Cleveland in Columbiana County, experienced an outbreak of the virus in recent months. The low-security complex is currently home to more than 2,300 male inmates and includes a central institution and a satellite facility. As of Tuesday, 137 inmates and eight staff members tested positive for the virus. Nine inmates have died....

[T]he ACLU said the bureau had slow-walked its response [to Judge Gwin's April 22 order]. It said the bureau has not, to date, identified any inmates who released on furlough or home confinement. It also said the bureau, which identified 837 inmates as susceptible, left some inmates off its list by not including certain medical conditions and those who are age 65.

The judge agreed. “By thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates,” Gwin wrote.

He directed the prisons bureau to eliminate certain criteria that inmates must meet to qualify confinement.  Those include eliminating requirements about length of time an inmate has served and disregarding whether they committed certain low or moderate offenses while in prison.  Per his order, an inmate is serving time for a violent crime might may also be eligible for home confinement if it happened more than five years ago. If an inmate cannot be given compassionate release, furloughed or moved to another facility, the prisons bureau must also explain why.

Prior related posts:

May 20, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

May 19, 2020

Great coverage and perspectives on incarceration nation thanks to a global pandemic

Though it is disappointing that it took a global pandemic to get some media folk to take a harder look at mass incarceration and prison practices, I am still inclined to celebrate that the COVID era has brought a lot of important and critical coverage of incarceration nation.  Here is a round-up of just some of the great pieces I have seen in just the last few days:

From CBS News, "Inmates share what life is like inside prison during the coronavirus pandemic"

From CNN,"Inside New York's notorious Rikers Island jails, 'the epicenter of the epicenter' of the coronavirus pandemic"

From The Intercept, "Detainees At A Federal Jail Said Their Coronavirus Symptoms Were Ignored. The Government Is Fighting To Keep The Records Secret."

From Newsweek, "We're Not Angry Paul Manafort Was Released. We're Angry Millions of Others Weren't"

From The New Yorker, "Will the Coronavirus Make Us Rethink Mass Incarceration?"

From Slate, "We Have No Idea How Many People in Prison Actually Have COVID-19"

May 19, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Missouri completes first US execution of COVID era ... with social distancing

As detailed in prior posts (linked below), Texas and a few other states have postponed more than a few executions as a result of the coronavirus pandemic.  But, as detailed in this local piece, headlined "State of Missouri executes Ozark, Mo. death row inmate for 1991 killing," the Show-Me State got its machinery of death up and running tonight.  Here are some of the details:

The state of Missouri executed an Ozark, Mo. death row inmate Tuesday night for fatally stabbing an 81-year-old woman nearly three decades ago, the first U.S. execution since the coronavirus pandemic took hold.  Walter Barton, 64, had long maintained he was innocent of killing Gladys Kuehler, and his case was tied up for years due to appeals, mistrials and two overturned convictions.  His fate was sealed when neither the courts nor Gov. Mike Parson intervened.

Barton breathed heavily five times after the lethal drug entered his body Tuesday evening, then suddenly stopped. In his final statement released prior to his execution, Barton said: "I, Walter "Arkie" Barton, am innocent and they are executing an innocent man!!" He died at 6:10 p.m.

Concerns related to the coronavirus caused several states to postpone or cancel executions over the past 2½ months. Until Tuesday, no one had been executed in the U.S. since Nathaniel Woods was put to death in Alabama on March 5. Ohio, Tennessee and Texas were among states calling off executions.  Texas delayed six executions due to the pandemic.

Barton's attorney, Fred Duchardt Jr., and attorneys for death row inmates in the other states argued that the pandemic prevented them from safely conducting thorough investigations for clemency petitions and last-minute appeals.  They said they were unable to secure records or conduct interviews due to closures.

Attorneys also expressed concerns about interacting with individuals and possibly being exposed to the virus, and they worried that the close proximity of witnesses and staff at executions could lead to spread of COVID-19, the disease caused by the coronavirus.

Barton was executed in Bonne Terre, Missouri, about 60 miles (97 kilometers) south of St. Louis, at a prison that has no confirmed cases of the virus.  Strict protocols were in place to protect workers and visitors from exposure to the coronavirus.

Everyone entering the prison had their temperatures checked.  Face coverings were required, and the prison provided masks for those who didn't have them. But several employees clocking in and out for the day, without masks, came into the same room used by media prior to and after the execution.  They remained more than six feet away from the lone reporter in the media room at the time.

Witnesses were divided into three rooms.  Those witnesses include an Associated Press reporter and other journalists and state witnesses, and people there to support Barton. No relatives or other supporters of the victim attended....

The last execution in Texas, the nation's busiest capital punishment state, was Feb. 6.  Seven executions that were scheduled since then have been delayed.  Six of the delays had some connection to the pandemic while the seventh was related to claims that a death row inmate is intellectually disabled.

The next execution in Texas is set for June 16.  Officials have instituted a process requiring witnesses to be be subject to the same screening required of prison employees before entering the facility, Texas Department of Criminal Justice spokesman Jeremy Desel said.  The screening involves questions based on potential exposure to the coronavirus and health inquiries.  Texas' death chamber is not a heavy traffic area and is isolated from all parts of the prison in Huntsville, and it is constantly cleaned, Desel said.

Some prior related capital COVID posts:

May 19, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice | Permalink | Comments (1)

"The Paradox of Recidivism"

The title of this post is the title of this interesting-looking new article authored by Christopher Lewis and just posted to SSRN.  Here is its abstract:

The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in U.S. states that use sentencing guidelines.  And three-strikes, habitual offender, and career criminal laws mandate extremely harsh penalties for repeat offending.  Most of the people we lock up in the U.S. — especially those who are Black or Latino, and poor — have at least one prior conviction. The “recidivist sentencing premium” is thus one of the main determinants of race- and class-based disparity in our prisons, and of the overall size of our incarcerated population.

This article shows, counterintuitively, that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions have moral reason to do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. Prior convictions should be treated as a presumptive mitigating factor, rather than an aggravating one.  This thesis goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millenia of social tradition.  But this article shows that it follows from a number of quite ordinary normative and empirical premises. The conclusion might be politically unpalatable, but it is morally unavoidable.

May 19, 2020 in Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Another window on the mixed realities of US crime in our new COVID era

The Washington Post has this new article reporting on new research on pandemic-era crime realities.  The full headline provide a summary: "Amid pandemic, crime dropped in many U.S. cities, but not all: Houston and Denver saw big increases in violent crime, while San Francisco, Los Angeles and New York City saw big decreases." Here are the particulars from the article:

With fewer people on the streets, and more in their homes, some big U.S. cities saw significant decreases in crime during the pandemic, according to statistics from 30 large and midsize cities and counties gathered by the Police Executive Research Forum.  Some saw spikes in violent crime and auto theft, however, and police said closed businesses were more frequently targeted for burglaries.

The Washington-based think tank compared crime statistics from March 16 to April 12, the outset of the coronavirus shutdown, with the same period in 2019.  Of the 30 jurisdictions, 18 saw decreases in violent crime — murder, rape, robbery and aggravated assault — as the pandemic hit the United States, which included a 33 percent drop in San Francisco, a 25 percent drop in New York and a nearly 25 percent decline in Los Angeles.

Washington and Baltimore both saw an 8 percent decrease in violent crime. Prince George’s County, Md., the only suburban Washington jurisdiction in the study, experienced a 24 percent drop in violent crime in the month after the coronavirus crisis struck.  But 12 cities saw increases, which included a 21 percent jump in Denver and a nearly 12 percent increase in Houston. Austin and Nashville were among the cities that saw smaller rises in violent crime.

Homicide numbers were mixed — deaths increased in nine cities, decreased in nine cities, and 12 reported no change.  Slayings in Los Angeles dropped from 31 during that period in 2019 to 16 in 2020, but homicides in Nashville during that period rose from four to 14.  Homicides in Baltimore rose from 20 in those weeks last year to 23 this year. In Washington, they went down, from 11 to 10.

Chuck Wexler, the executive director of the research forum, said he and a number of police chiefs he had spoken to think “the pandemic has not dramatically altered traditional patterns of gang warfare, drug-related violence, and individuals using guns to settle personal disputes.  These serious, deeply entrenched problems continue to drive much of the violence in our communities.”...

As always with crime statistics, it is worth noting that these are only one month’s worth of numbers, and the number of crimes, particularly homicides, can randomly fluctuate and are best assessed over longer periods to detect true trends. But the first month of the pandemic created unprecedented changes in American society, and it will be interesting to see whether some of the dramatic crime shifts in that month continue during the stay-at-home period and beyond.

Property crimes, for example — burglary, larceny and auto theft — declined dramatically, with 25 of the 30 jurisdictions reporting drops in the March-April period this year. Baltimore saw a 43 percent decrease, Washington a 36 percent decrease and San Francisco a 46 percent decrease. Larcenies dropped in 28 of the 30 jurisdictions, the forum’s data show.

It figured residential burglaries would plummet, as more people were staying home during the day.  But Wexler said police chiefs report business burglaries are surging as thieves target shuttered establishments and fewer cleaning crews are working in office buildings at night.  He said commercial burglaries drove the overall burglary rate up nearly 44 percent in Seattle, 41 percent in Denver and 17.5 percent in New York. Total burglaries fell 23 percent in Washington and 36.5 percent in Baltimore.

Another side effect of the pandemic — people not driving their cars nearly as much — may have contributed to some spikes in auto theft. Auto thefts increased in 16 of the 30 jurisdictions, including a 59 percent rise in Austin and a nearly 26 percent rise in Salt Lake City. Auto thefts in Baltimore dropped nearly 35 percent, and the District saw a 2.5 percent drop.

Police have been less busy during the pandemic, the statistics show. Twenty-nine of the 30 jurisdictions reported declines in calls for service. Only Prince George’s County, with a 3.4 percent rise, showed an increase, and Chicago saw a 25 percent drop in calls. Washington and Baltimore saw approximately 20 percent fewer calls for service.

Arrests plummeted, too, as police joined the effort to incarcerate fewer people during the outbreak. Only 22 jurisdictions provided arrest data for the month, but 18 were down for Part I crime; for lesser Part II crimes, arrests were down in all reporting jurisdictions. Boston police arrested 66 percent fewer people for serious crimes, while authorities in Miami and Chicago arrested 61 percent fewer people and 53 percent fewer people, respectively. Washington saw 44 percent fewer Part I arrests, and Baltimore had 36.5 percent fewer Part I arrests.

Wexler said police officials wonder whether the drop in arrests, as well as a pullback on community policing because of social distancing, will eventually lead to more crime. Traffic enforcement has been scaled back dramatically, Wexler said. In New York City and the state of California, police have expressed frustration about repeat offenders being released back to their communities, where they could possibly swiftly reoffend.

Police are also on alert for increases in crimes related to the pandemic’s effect on unemployment, family financial troubles and domestic violence. “That doesn’t mean that the factory workers or retail clerks who lose their jobs today will become the burglars or bank robbers of tomorrow,” Wexler said. “But the desperation that comes with this level of economic hardship could impact domestic violence, child abuse and other types of crime.”

Prior related posts:

May 19, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

"U.S. Prison Decline: Insufficient to Undo Mass Incarceration"

The title of this post is the title of this notable new short report from The Sentencing Project authored by Nazgol Ghandnoosh. The charts and graphs alone make this piece a must-read, and here is some of its text:

By yearend 2018, the U.S. prison population reached 1.4 million people, declining by 9% since reaching its peak level in 2009.  This follows a nearly 700% growth in the prison population between 1972 and 2009.  This research brief reveals significant variation across states in decarceration and highlights the overall modest pace of reforms relative to the massive imprisonment buildup.

This analysis is based on the most recent data from the Bureau of Justice Statistics on people serving sentences greater than one year.  Since the coronavirus pandemic in 2020, a number of states and the federal system have made additional, albeit modest, reductions in their prison populations. This analysis underscores the need to address excessively high levels of imprisonment amidst a public health crisis.

All but six states have reduced their prison populations since reaching their peak levels.  For twenty-five states, the reduction in imprisonment levels was less than 10%.  The federal prison population was downsized by 17% relative to its peak level in 2011.  Seven states lead the nation, having decarcerated by over 30% since reaching their peak imprisonment levels: New Jersey, Alaska, Connecticut, New York, Alabama, Rhode Island, and Vermont.  These prison population reductions are the result of a mix of changes in policy and practice designed to reduce prison admissions and lengths of stay.  But six states had their highest ever prison populations in 2018: Wyoming, Nebraska, Iowa, Wisconsin, Kansas, and Oregon.

Although 44 states and the federal system have reduced their prison populations since reaching peak levels, the pace of reform has been slow to reverse nearly four decades of aggressive annual imprisonment growth.  At the pace of decarceration since 2009, averaging 1% annually, it will take 65 years — until 2085 — to cut the U.S. prison population in half.  Clearly, waiting over six decades to substantively alter a system that is out of step with the world and is racially biased is unacceptable.

A few recent related posts:

May 19, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

May 18, 2020

Notable up-to-date accounting of federal inmate deaths as reported by BOP

I am grateful to have received an email Lucas Anderson noting this new posting at Law & Policy Journal where he report on all the federal inmate death that the Bureau of Prisons has reported through today.  The post is titled "Data from BOP press releases reveal that federal inmate deaths from COVID-19 may be accelerating; about half of those dead so far were younger than 60."  Here is its text (which accompanies detailed tables based on BOP statements):

The Bureau of Prisons is currently reporting that 57 federal inmates have died from COVID-19. While the BOP provides very little in the way of meaningful data, they have issued brief press releases relating to 55 of those deaths.  The information contained in the tables below is derived from those press releases.  The first table shows that about half of the federal inmates who have succumbed to COVID-19 were younger than 60 years old.  The second table, in which the same data is sorted by month, shows that inmate deaths in federal prisons are not slowing down.  To the contrary, with 21 deaths reported so far in May (as compared to 33 inmate deaths in April), they may be accelerating.

May 18, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

An overview of federal compassionate release issues during this pandemic

As regular readers know, in lots of posts since enactment of the FIRST STEP Act, and especially since federal prisons started dealing with the current urgency of a global pandemic, I have made much of a key provision allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  Unsurprisingly, as the number of motions and rulings around this provision increase, others are taking notice of how courts are taking stock.  This new Bloomberg Law piece, headlined "Virus Forces Judges Into Life-or-Death Calls on Inmate Releases," provides a timely overview of this developing jurisprudence.  Here are excerpts:

Judges are interpreting the law on the fly as they face an unprecedented spike in requests for “compassionate release” from prison, coming to different conclusions about what can be done in the context of a pandemic.  The swell of requests for what’s known as compassionate release come after the passage of a law, written before the Covid-19 outbreak, that made it easier for those requests to be filed with the courts.

Federal judges ruled on more than 400 petitions for compassionate release in March and April, compared with only 16 in the same months last year, according to a Bloomberg Law analysis of trial court-level filings.  “I had never seen a compassionate release motion before the pandemic, and now I’ve seen more than 10,” U.S. District Judge Jed S. Rakoff, a senior judge in the Southern District of New York, said in an interview.

Under the law passed in 2018, judges can make a determination about compassionate release after the U.S. Bureau of Prisons has said “no” or doesn’t respond to the inmate’s request in 30 days.  Those determinations are highly individualized and outcomes can vary widely from judge to judge, all of whom are now weighing requests without updated guidance.

The influx is touching every corner of the legal system. Lawyers and advocates are frustrated releases aren’t being granted more often, while probation officers are working with limited resources to respond to an influx of them, and inmates in close quarters fear for their lives....

“A system that normally takes years to resolve disputes suddenly has to resolve a mountain of life-or-death disputes in days. All that judges can do is their level best,” said Matthew Stiegler, an attorney who focuses on federal appeals in the Third Circuit, told Bloomberg Law....

The decision to grant a compassionate release largely hinges on whether that inmate has what the statute calls “extraordinary and compelling” circumstances. That includes failing health in old age, a terminal illness, or caring for a partner or child if they are incapacitated.

In the past, those requests only made their way into court after the Bureau of Prisons agreed the request should be granted.  That system was criticized for being slow and inefficient.  The First Step Act, a bipartisan bill that became law in 2018, addressed those concerns, in part, by giving inmates the route to take their requests to court.

“When Congress passed the law and that language was in there it made sense, but no one expected a pandemic,” Ricardo S. Martinez, chief judge of the Seattle-based U.S. District Court for the District of Western Washington, said in an interview.  “After the First Step Act came into place we immediately saw a jump in those petitions,” said Martinez, who is chair of the Criminal Law Committee of the Judicial Conference, the federal judiciary’s policy-making body. That’s been exacerbated by the virus, but even after the pandemic subsides, Martinez said he foresees a continuing high number of petitions each year....

The influx of cases may bring more clarity to the statute those determinations rely on.  “The best that could come out of this is that through this process we really see where the statute could have areas for improvement and definition and those things happen as a result of these decisions being made,” [Sarah] Johnson, the supervising U.S. probation officer, said in an interview.

Judges are making a point to say that their decisions are being made in the special context of the virus, but that doesn’t mean they will adhere to that when the pandemic is over, Rakoff said.  “Many of us, including myself, are taking a much deeper look at this statute than we’ve ever had reason to do before and some of what we’re deciding may shape the law for a long time to come,” he said. 

May 18, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Missouri seemingly on track to conduct first execution of COVID era

As detailed in prior posts (linked below), Texas and a few other states have postponed more than a few executions as a result of the coronavirus pandemic.  But, providing more evidence that many are quite eager to get back to business as usual, it seems Missouri is ready to get back to executions tomorrow.  This CBS news report, headlined "Appeals court clears way for Missouri execution despite new questions over evidence," provides these details on a case that is notable for more reasons than just the timing of the scheduled execution:

A federal appeals court has cleared the way for a Missouri death row inmate to be executed on Tuesday, despite questions raised about evidence used to convict him.  The Sunday decision by the 8th U.S. Circuit Court of Appeals vacated a 30-day stay of execution granted Friday to Walter Barton by a federal judge. 

Barton, 64, is now set to die by lethal injection for the 1991 killing of 81-year-old trailer park operator Gladys Kuehler. Kuehler was beaten, sexually assaulted and stabbed more than 50 times in Ozark, near Springfield.

The federal judge on Friday had decided the court needed more time to consider issues raised by Barton's attorneys, including new concerns about blood spatter evidence used to convict him.  Prosecutors appealed the judge's stay, and the 8th Circuit said it saw "no possibility of success" on Barton's claims, which it said presented no new evidence....

Barton's case has been tied up in court for years due to mistrials, appeals and two overturned convictions.  He was prosecuted five times between 1993 and 2006, and has always maintained his innocence.  The Missouri Supreme Court narrowly upheld his conviction in 2007, with multiple judges dissenting. One dissenting judge, Michael Wolff, wrote: "How could Barton have perpetrated the kind of violent, forceful attack that killed Ms. Kuehler and walked away quite unstained by the effort?"...

The American Bar Association has called on Republican Governor Mike Parson to issue an execution reprieve, citing the case's "troubling history" and "lingering doubts around guilt," and to commission an inquiry board to review Barton's conviction and sentence.  The ABA cited "unprecedented limitations on effective representation" due to the coronavirus pandemic.  In Barton's case, coronavirus restrictions have made it difficult for his attorneys to investigate the new evidence, the group wrote....

In a letter to Parson on Friday, The Innocence Project, the Midwest Innocence Project and the MacArthur Justice Center echoed the call for an independent inquiry board to review the case.  It said Barton's conviction "rests entirely upon evidence now known to be two of the leading causes of wrongful conviction: incentivized jailhouse informant testimony and blood spatter evidence, an infamously unreliable forensic 'science.'"...

The execution would be the first in the U.S. since March 5 and is scheduled despite concerns about the coronavirus that prompted other states to postpone lethal injections.

Some prior related capital COVID posts:

May 18, 2020 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0)

"Special Report: 'Death Sentence' — the hidden coronavirus toll in U.S. jails and prisons"

The title of this report is the headline of this lengthy new Reuters article that I recommend in full.  Here are just a few excerpts:

COVID-19 has spread rapidly behind bars in Detroit and across the nation, according to an analysis of data gathered by Reuters from 20 county jail systems, 10 state prison systems and the U.S. Bureau of Prisons, which runs federal penitentiaries.

But scant testing and inconsistent reporting from state and local authorities have frustrated efforts to track or contain its spread, particularly in local jails.  And figures compiled by the U.S. government appear to undercount the number of infections dramatically in correctional settings, Reuters found.

In a May 6 report, the U.S. Centers for Disease Control and Prevention surveyed 54 state and territorial health departments for data on confirmed COVID-19 infections in all correctional facilities — local jails, state prisons and federal prisons and detention centers.  Thirty-seven of those agencies provided data between April 22-28, reporting just under 5,000 inmate cases.

Reuters documented well over three times the CDC’s tally of COVID-19 infections — about 17,300 — in its far more modest survey of local, state and federal corrections facilities conducted about two weeks later.  The Reuters survey encompassed jails and prisons holding only 13% of the more than 2 million people behind bars nationwide.  Among state prisons doing mass testing of all inmates, Reuters found, some are seeing infection rates up to 65%.

The CDC tally “is dramatically low,” said Aaron Littman, a teaching fellow specializing in prison law and policy at the law school of the University of California, Los Angeles. “We don’t have a particularly good handle” on COVID-19 infections in many correctional and detention facilities, “and in some places we have no handle at all.”...

In many jails and prisons, the toll of COVID-19 on corrections officers and other staff approaches that of inmates — and here, too, the numbers reported to the CDC by state and local authorities appear to be a vast undercount.

The CDC report documented nearly 2,800 COVID-19 cases among staff across all U.S. correctional facilities.  But Reuters found more than 80% of that number — upwards of 2,300 infected jail and prison workers — in its far less comprehensive survey of just the federal prison system, a few dozen state prisons and the 20 counties with the biggest local jails.

May 18, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

Reviewing the emerging jurisprudence around FIRST STEP Act resentencings

Writing al Law360, Emma Cueto has this notable new piece headlined "With First Step, Courts Diverge In Filling In The Law's Gaps."  Here are excerpts:

More than a year after the passage of the First Step Act — which, among other things, made certain sentencing reforms retroactive — courts have continued to work out the procedural questions surrounding how the act should be applied and what judges must consider when resentencing federal offenders.  And some courts have come to very different conclusions, putting defendants on disparate footing depending on where they are based.

In the most recent case examining a First Step Act resentencing, the Sixth Circuit ruled on May 7 that defendants are entitled to appeal a judge's resentencing decisions based on reasonableness, though the courts reiterated a previous decision that trial courts are not required to give defendants a holistic, or what's known as a plenary, review.  The result was that the appellate court upheld the resentencing decision of Benjamin Foreman, who had been convicted of several drug-related crimes, even though it affirmed his right to appeal the sentence....

In the initial wake of the First Step Act, courts spent some time hashing out questions of who, precisely, was eligible to have their sentences recalculated.  With those questions largely resolved, courts have turned now to pinning down the details of what approach judges should take to resentencing under the new law, with different federal appellate courts coming to different conclusions.

The Fourth Circuit, in a case decided in April, issued a more defendant-friendly decision in USA v. Chambers, in which it concluded in a split decision that the trial court should have taken a broader view and could consider a wider-ranging set of factors, including the conduct of Brooks Chambers, who had been convicted of a drug offense, while incarcerated.

The court stopped short of requiring a plenary resentencing, which would give defendants additional rights, such as the right to an in-person hearing, and which Chambers did not explicitly request in the appeal. However, the decision did send a message that judges should consider a wide variety of factors in First Step Act cases, rather than focusing solely on a few select criteria....

At the other end of the spectrum, the Fifth Circuit ruled in 2019 that the First Step Act does not allow for a plenary resentencing. In that case, USA v. Hegwood, Michael Hegwood also objected to his designation as a career offender during resentencing, arguing that since his conviction in 2008, there had been changes to the law that meant he would not be a career offender if sentenced today.... The Fifth Circuit, however, disagreed, saying that when the court recalculates a sentence it should only make the changes specifically triggered by the First Step Act, and should not consider other changes to the law since the original sentence was imposed....

The difference in opinions between the circuit courts may eventually wind up before the U.S. Supreme Court, which is the final authority in deciding circuit splits.  In the meantime, however, defendants and their attorneys find themselves trying to make the most of the existing frameworks.

"To me, a lot of these doctrines don't matter so much as who your judge is," said Michael Holley, a federal public defender in Tennessee, which is part of the Sixth Circuit.... Some judges choose to consider a wide range of factors when recalculating a sentence, including post-sentencing behavior or changes in the law since the sentence was first imposed, which can result in larger reductions. Others choose to take a more narrow approach, keeping sentences from coming down as much.

May 18, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

May 17, 2020

Still more grants, so why not yet another listing of 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 here more linked below, I have highlighted a number of the many, many COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).   I keep receiving positive feedback concerning these prior posts from various quarters, and so I will keep reporting on these kinds of rulings every time I discover a dozen or more.   

I have noticed that new ruling from the prior week often appear on Monday and Tuesday, so this list is likely just a partial accounting of recent grants of sentence reductions to show up on Westlaw this morning.  Still, I like to do a round up before the latest list of new grants of sentence reductions gets too long, and so here is a list based on rulings since my last posting from just last Wednesday: 

United States v. Brooks, No. 07-cr-20047-JES-DGB, 2020 WL 2509107 (CD Ill. May 15, 2020)

United States v. Gonzalez, No. 3:17-cr-00062 (JAM), 2020 WL 2511427 (D Conn. May 15, 2020)

United States v. Lopez, No. 18-CR-2846 MV, 2020 WL 2489746 (D N.M. May 14, 2020)

United States v. Mattingley, No. 6:15-cr-00005, 2020 WL 2499707 (WD Va. May 14, 2020)

United States v. Williams, No. 06 CR 451-10, 2020 WL 2494645 (ND Ill. May 14, 2020)

United States v. Ginsberg, No. 14 CR 462, 2020 WL 2494643 (ND Ill. May 14, 2020)

United States v. Handy, No. 3:10-cr-128-8 (RNC), 2020 WL 2487371 (D Conn. May 14, 2020)

United States v. Arey, No. 5:05-cr-00029, 2020 WL 2464796 (WD Va. May 13, 2020)

United States v. Kubinski, No. 3:93-CR-28-1H, 2020 WL 2475859 (ED N.C May 13, 2020)

United States v. Sedge, No. 16-cr-537(KAM), 2020 WL 2475071 (EDNY May 13, 2020)

United States v. Gutman, No. RDB-19-0069, 2020 WL 2467435 (D Md. May 13, 2020)

United States v. Cassidy, No. 17-CR-116S, 2020 WL 2465078 (WDNY May 13, 2020)

United States v. Scott, No. 95-202-CCB-2, 2020 WL 2467425 (D Md. May 13, 2020)

I have mentioned in a number of prior posts that I am confident that these Westlaw listings likely do not represent all sentence reductions being granted by federal courts these days. Proof of this reality comes via this new Law360 article headlined "Manafort's Release Helps Spring Ex-NFL Lineman From Prison." Here is the start of this article reporting on a ruling not (eyt?) on Westlaw:

Citing the compassionate release of former Donald Trump campaign chairman Paul Manafort, a federal judge said Friday that a former NFL lineman should be able to serve the rest of his prison sentence for a $2.5 million real estate fraud scheme in home confinement to protect him from COVID-19.

U.S. District Judge Mark L. Wolf's bench ruling puts Robert "Bubba" Pena in line to be released from Federal Medical Center, Devens, the central Massachusetts prison. Pena has argued his age, 70, and the fact he is black make him more likely to face serious complications if he contracted the virus.  Pena has pointed to research showing that black Americans are dying at a disproportionately high rate from the virus, likely due to underlying economic and health factors.

Prior recent related posts since lockdowns:

UPDATE: I mentioned above that new rulings from the prior week often seem to appear on Westlaw on Monday.  Sure enough, here are a few more grants I noticed as of Monday morning:

United States v. Pomante, No. 19-20316, 2020 WL 2513095 (ED Mich. May 15, 2020)

United States v. Sholler, No. 17-cr-00181-SI-1, 2020 WL 2512416 (ND Cal. May 15, 2020)

United States v. Young, No. 4:16-40036-TSH, 2020 WL 2514673 (D Mass. May 15, 2020)

United States v. Lee, No. 19-cr-00419-SI-1, 2020 WL 2512415 (ND Cal. May 15, 2020)

May 17, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

After DC Circuit denies en banc review, wondering what might be next for litigation over federal lethal injection plans

As reported in this Bloomberg News piece, headlined "D.C. Circuit Won’t Reconsider President Trump’s Execution Win," on Friday "President Donald Trump and Attorney General William Barr got one step closer in their quest to resume federal executions, as a full panel at the U.S. Court of Appeals in Washington has declined to reconsider last month’s three-judge panel ruling in the government’s favor."  The DC Circuit order, available here, was unanimous with only Judge Tatel adding this statement:

TATEL, Circuit Judge: Even though I believe this case is en banc worthy, I did not call for a vote because, given that the Supreme Court directed this court to proceed “with appropriate dispatch,” Barr v. Roane, 140 S. Ct. 353 (2019), I agree that “[our] review should be concluded without delay,” Opp’n to Pet. for Reh’g En Banc 15.

Normally, it might be a given that this development would prompt the federal capital defendants to seek review in the US Supreme Court. But, critically, I do not believe there are pending execution date from these capital defendants and the split nature of the DC Circuit's panel ruling, as discussed here and here, may make it hard for DOJ to move forward with any execution plans.  The Bloomberg article speaks to some of this enduring uncertainty:

But it’s not clear that the prisoners are in a hurry to get back before the high court. They might prefer to go back down to the district court, whose Nov. 21 preliminary injunction the three-judge panel upended, to further litigate the issues in this complex case.

“The federal death row prisoners’ challenge to the government’s flawed execution protocol will continue,” their lawyer, Cate Stetson, said on Friday after the full-panel denial.  “The Court of Appeals’ fractured decision leaves many questions about the legality of the government’s execution protocol unresolved,” she said. “We will be actively assessing all available avenues to ensure that no federal executions take place until the courts have had an opportunity to review all outstanding issues.”

Given that the federal capital defendants previously got a favorable ruling from the district judge presiding over these matters, and especially given that it seems that at least five SCOTUS Justices are not too keen on litigation over execution protocols, I would be inclined to predict that the defendants here might be content to continue fighting various battles in the low courts before risking a loss in any litigation war waged at SCOTUS.

Prior related posts:

May 17, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Prisoner Trade"

The title of this post is the title of this new article by Emma Kaufman recently posted to SSRN.  Here is its abstract:

It is tempting to assume that the United States has fifty distinct state prison systems.  For a time, that assumption was correct.  In the late twentieth century, however, states began to swap prisoners and to outsource punishment to their neighbors.  Today, prisoners have no right to be incarcerated in the state where they were convicted, and prison officials may trade prisoners — either for money or for other prisoners — across state lines.

Interstate prison transfers raise questions about the scope of states’ authority to punish, the purpose of criminal law, and the possibilities of prison reform.  Yet apart from prisoners and their families, few people know that prisoners can be shipped between states.  Because information on prisoners is so hard to obtain, scholars, lawyers, lawmakers, and even the judges who impose prison sentences often have no idea where prisoners are held.

Drawing on a wide range of primary sources, including data uncovered through open records requests to all fifty states, this Article offers the first comprehensive account of the prisoner trade.  It demonstrates that states have far more authority than one might expect to share and sell prisoners.  It reveals that certain states rely on transfers to offset the actual and political costs of their prosecution policies.  And it critiques the pathologies of interstate punishment, arguing that courts should require consent before a prisoner can be sent outside the polity whose laws he has transgressed.

May 17, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)