Friday, June 05, 2020

Encouraging decarceration news from New England has me thinking about tipping points

I was quite pleased and intrigued to see this morning two notable lengthy recent stories about reduced prison populations in two northeastern states. Both pieces merit reading in full, and here are headlines, links and excerpts, with some broader comments to follow:

"Justice Served?  Vermont Considers Corrections Reform to Shrink Its Prison Population

When lawmakers returned to Montpelier in January, one of their top priorities was to reduce the number of people imprisoned by the State of Vermont. They succeeded — but not the way they expected.

The coronavirus pandemic has prompted prosecutors to avoid locking up all but the most serious suspected offenders, and it's led the Department of Corrections to release some inmates who have served their minimum sentences and been deemed low-risk to the community.  As a result, Vermont's prison population has dropped nearly 17 percent since January, from 1,678 to 1,401.

Now, lawmakers are hoping to lock in that progress by returning to the criminal justice reforms they began contemplating in January. "Our numbers are down, so let's really put in the effort to keep those numbers down," said Rep. Alice Emmons (D-Springfield), who chairs the House Corrections and Institutions Committee.

"As CT prison population nears 30-year low, fewer intakes drive declines"

The state’s incarcerated population is on track to drop below 10,000 this month for the first time in nearly 30 years, a milestone accelerated by the global coronavirus pandemic.  Still, the drop in overall prison population — more than 2,000 people, or 16 percent since March 1 — is overwhelmingly the result of fewer prisoners entering the system rather than a sharp rise in releases, a Hearst Connecticut Media analysis shows.

The population of white prisoners declined by 19 percent, while the population of black and Hispanic incarcerated people has fallen by 14 percent, the analysis shows. It’s not clear why that discrepancy happened. Racial and ethnic minorities make up a majority of the overall prison population.

The state Department of Correction has come under pressure to release more inmates nearing the end of their sentences, especially those who are older or medically vulnerable to coronavirus.  And the department has called attention to the declining prison population.

A press release Tuesday claimed significant increases in discretionary releases, and devoted six paragraphs to the release program, including comments from Commissioner Rollin Cook, who said, “The impressive and substantial decrease in our population speaks volumes about the caliber and hard work of our staff, as well as that of our partners in the criminal justice community.”  The department cited a national report showing Connecticut ranked No. 6 among states reducing their prison populations between the end of December, 2019, and early May of this year.

There are remarkable stories and sub-stories in both of these lengthy articles, but the parts I have quoted might provide a sense of why I am thinking about tipping points. I find it remarkable and heartening that a lawmaker in Vermont is quoted as urging the state to keep its (already relatively low) prison population down after the COVID decline.  And it is even more remarkable and heartening that a press release from the Connecticut Department of Correction is bragging about reducing its population more than most other states in the COIVD era.  I sense we have really gotten to the point, at least in some significant quarters, that a rising prison population is viewed as a failure and a reduced population is deemed a success.

A sea-change in attitudes toward imprisonment and prison populations is one part of achieving a tipping point, but so too will be more fundamental structural change.  Part of that structural change may now be happening economically as states are sure to be eager in these new lean budget times to limit expenditures on corrections.  And if serious reforms in policing and punitiveness follows from all the latest calls for racial justice, I really might be ready to start to envision a true new dawn of smarter justice.

June 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Bernie Madoff denied federal sentence reduction, but many others receive relief under § 3582(c)(1)(A) on same day

As reported in this Courthouse News Service report, a high-profile federal white-collar prisoners was denied compassionate release yesterday afternoon.  Here are the basics (and a link to the opinion):

Bernie Madoff’s terminal illness will not alter a federal judge’s ruling from just more than a decade ago: The man behind an “extraordinarily evil” Ponzi scheme will die in prison.

“When I sentenced Mr. Madoff in 2009, it was fully my intent that he live out the rest of his life in prison,” Judge Denny Chin, who dealt Madoff’s 150-year sentence before being appointed to the Second Circuit, wrote on Thursday. “His lawyers asked then for a sentence of 12 to 15 to 20 years, specifically with the hope that Mr. Madoff would live to see ‘the light of day.’ I was not persuaded; I did not believe that Mr. Madoff was deserving of that hope. Nothing has happened in the 11 years since to change my thinking."... 

Madoff’s attorney Brandon Sample said his client suffers from end-stage renal disease and other conditions that give him less than 18 months to live.  “Judge Chin recognized today that Madoff’s health is in serious decline and that he is, in fact, terminally ill,” Sample wrote. “Nonetheless, Judge Chin essentially found that because of the nature of Madoff’s crimes — Madoff is beyond redemption. We are disappointed with Judge Chin’s refusal to grant Madoff any compassion.”

The financial criminal will seek clemency from President Donald Trump. “We implore the president to personally consider Madoff’s rapidly declining health,” Sample added....

Letters opposing Madoff’s release showed that [negative victim] sentiment has not ebbed. Prosecutors said that more than 500 victims opposed his release, and only 20 wrote in support.  “I also agree that at age 81, with his declining physical condition, Mr. Madoff probably does not pose a danger to any person or the community,” Chin wrote. “But as the recent victim letters show, many people are still suffering from Mr. Madoff’s actions. I also believe that Mr. Madoff was never truly remorseful, and that he was only sorry that his life as he knew it was collapsing around him. Even at the end, he was trying to send more millions of his ill-gotten gains to family members, friends, and certain employees.”

Madoff is confined to the Federal Medical Center in Butner, North Carolina, which — like many prisons throughout the country — is grappling with the coronavirus.  Neither Madoff’s request nor the ruling mentions the pandemic.

While this 16-page opinion from Judge Chin does not mention COVID, a whole lot of other compassionate release rulings handed down yesterday did.  I figured here it might be useful to highlight a number of the positive rulings from just the same day as this Madoff denial that already appear on Westlaw (and this weekend I will try to compile the more extended list of  positive § 3582(c)(1)(A) rulings from other days):

United States v. McKinney, No. 18-CR-6035L, 2020 WL 2958228 (WDNY June 4, 2020)

United States v. McCall, No. 2:18cr95-MHT, 2020 WL 2992197 (MD Ala. June 4, 2020)

United States v. Burke, No. 4:17-CR-3089, 2020 WL 3000330 (D Neb. June 4, 2020)

United States v. Green, No. TDC-10-0761, 2020 WL 2992855 (D Md. June 4, 2020)

United States v. Rivera-Amaro, No. 1:18-CR-00183 EAW, 2020 WL 3000392 (WDNY June 4, 2020)

I am pretty confident that this list of grants are not all of those that will show up on Westlaw eventually, and I am even more certain that there were a number of federal sentence reductions granted under § 3582(c)(1)(A) yesterday that will not ever show up on Westlaw.  In other words, while high-profile cases like Bernie Madoff will garner headlines, an ever-growing number of federal defendants are garnering sentence reductions thanks to the FIRST STEP Act.

June 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Thursday, June 04, 2020

Justice Sotomayor stays federal judicial orders to transfer vulnerable Elkton prisoners pending Sixth Circuit appeal

As noted in this post, last week the full Supreme Court denied, by a 6-3 vote, a request by the federal government to stay a federal district court order to release or transfer vulnerable inmates from the Elkton federal prison.  But this ruling was, in essence, based on a technicality, and today Justice Sotomayor via this order granted the stay the feds were seeking:

IT IS ORDERED that the District Court’s April 22 and May 19 orders are hereby stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Sixth Circuit and further order of the undersigned or of the Court.

I believe the Sixth Circuit panel is due to hear argument tomorrow on this matter, but this stay enables federal officials to keep moving slowly on moving vulnerable prisoners out of a prison that has had hundreds of COVID cases and a handful of deaths.

Prior related posts:

UPDATE: Amy Howe has this lengthy and effective posting at SCOTUSblog about the Elkton litigation and the stay granted by Justice Sotomayor.

June 4, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Criminal Court Reopening and Public Health in the COVID-19 Era: NACDL Statement of Principles and Report"

The title of this post is the title of this notable new report coming from the National Association of Criminal Defense Lawyers.  This press release summarizes some highlights: 

The National Association of Criminal Defense Lawyers (NACDL), with support from the NACDL Foundation for Criminal Justice (NFCJ), today released a comprehensive set of principles and report — Criminal Court Reopening and Public Health in the COVID-19 Era. As explained in detail in the report, “[g]iven the nature of the disease and the manner of transmission, court proceedings, especially jury trials, present a grave risk to all participants, including the public which has a fundamental right to attend.”

“We know from the science that across the nation the characteristics of courtrooms, courthouses, and the proceedings that occur inside them, present precisely the type of settings in which the virus spreads most efficiently — enclosed spaces requiring close proximity for an extended period of time,” said NACDL President and Task Force on Criminal Court Reopening Member Nina J. Ginsberg.  “While NACDL recognizes the inherent tension between the protection of an accused person’s fundamental right to a speedy trial, for example, and the delay necessary to protect the health and safety of everyone involved in jury trials, this statement of principles and report provide a roadmap to minimizing that constitutional burden while protecting the health and safety of all individuals involved in the conduct of a constitutional criminal proceedings in the United States.”

Virtual or remote proceedings are inherently inconsistent with fundamental constitutional rights.  Accordingly, among the recommendations included in the report are that the use of virtual proceedings be limited to the maximum extent possible, both in scope and duration, and only used with the knowing and informed consent of the accused. The report calls for far greater use of pre-trial release and other mechanisms, such as providing the accused with the unilateral right to elect a bench trial where that right does not already exist.

“There are also significant and unacceptable constitutional burdens on the accused that accompany criminal proceedings, live or virtual, in the midst of this uncontrolled pandemic, including on the right to counsel, the right to confront witnesses, the right to due process, and the right to a public trial by a jury representing a fair cross section of the community,” Ginsberg added.

As provided in the report, because of numerous constitutional concerns, the absence of a vaccine or rapid testing, and highly-infectious asymptomatic transmission, the fact is “that resuming criminal jury trials — particularly in areas of significant community-based transmission — would not only be reckless and irresponsible, but would also undermine the truth-seeking purpose of trials given the well-documented and understandable fear, panic, and uncertainty on the part of jurors, witnesses, court staff, deputies, judges, prosecutors, and defense counsel.”

UPDATE: Here are just a few recent press pieces providing some additional perspectives on this topic:

"Judges Worried About Virus' Impact On Upcoming Trials"

"Your right to a jury trial is on hold. Here’s how coronavirus is changing the justice system"

"Judges try to balance legal rights and courtroom health"

June 4, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

"Total Federal Inmates," as reported by BOP, drops below 165,000

Another Thursday brings another new check on the federal Bureau of Prisons' updated "Total Federal Inmates" 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.  As we now move from May into June, the new numbers at this webpage are continuing to show weekly declines checking in around 1,100 on average: the BOP reported population dropped from 167,803 (as of May 14, 2020) to 166,647 (as of May 21, 2020) to 165,575 (as of May 28, 2020) to now a BOP reported total of 164,438.

I have repeatedly suggested that a reduced inflow of federal inmates — due to many sentencings and reportings to prisons being delayed — has likely been playing a big role in the significant reported population declines in recent months.  But, in this post noting a BOP press release about coming inmate transfers, I wondered if the historic COVID-era decline in the BOP numbers might be mostly an artifice of 6,800 federal prisoners not being officially "counted" while being held in local detention facilities during the COVID shutdown.  But this week shows reported  declines continuing at a steady pace, and so I am left to continue muttering about not "really" knowing just what is represented by the reported federal prison population or about how best to accurately gauge COVID's impact. 

A few of many prior related posts:

June 4, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, June 02, 2020

Sixth Circuit panel rules so-called "exhaustion" procedural requirement for sentence-reduction motions under § 3582(c)(1)(A) to be "mandatory claim-processing rule"

A few months ago, I discussed in this post some sloppy Third Circuit panel dicta in Raia on the so-called "exhaustion" procedural requirement for sentence-reduction motions under § 3582(c)(1)(A).  Among my complaints about the ruling in Raia was that the issue had not be directly brought or fully briefed before the Third Circuit in that case.  But today the Sixth Circuit addressed this issue squarely in US v. Alam, No. 20-1298 (6th Cir. June 2, 2020) (available here).  Here is how the opinion begins:

Like many Americans in poor health, 64-year-old Waseem Alam has legitimate fears about the health risks created by the COVID-19 pandemic.  And like many inmates, he has ample reason to fear that a prison exacerbates those risks.  But when Alam moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A), he failed to invoke all of the options for obtaining relief from the prison.  Alam asks us to overlook that reality by finding the requirement non-mandatory or by fashioning an exception of our own.  But because this exhaustion requirement serves valuable purposes (there is no other way to ensure an orderly processing of applications for early release) and because it is mandatory (there is no exception for some compassionate-release requests over others), we must enforce it.  We affirm the district court’s dismissal of Alam’s request without prejudice to filing a new one.

The panel decides (rightly in my view) that the so-called "exhaustion" procedural requirement for sentence-reduction motions is a "claim-processing rule" (and thus not jurisdictional).  But the panel also decides (wrongly in my view) that no "exceptions to mandatory claim-processing rules — waiver or forfeiture — apply here."  The panel in reaching this conclusion makes some reasonable policy arguments:

Even if federal courts possessed a general power to create equitable carveouts to statutory exhaustion requirements, Alam does not show why an exception would make sense in the context of this statute.  Remember that Congress made compassionate release available only to elderly prisoners and those with “extraordinary and compelling” reasons for release. 18 U.S.C. § 3582(c)(1)(A).  For such prisoners, time usually will be of the essence.  That would make nearly every prisoner eligible to invoke “irreparable harm” and eligible to jump the line of applications — making the process less fair, not more fair.

Appending a futility requirement does not improve things.  How could we divine whether the Bureau of Prisons may wish to act on any given petition?  And, in any event, why must we assume that the Bureau of Prisons’ failure to act would render the act of waiting “futile”?  Speed matters, yes.  But accuracy matters too.  Preventing prisoners from charging straight to federal court serves important purposes.  It ensures that the prison administrators can prioritize the most urgent claims.  And it ensures that they can investigate the gravity of the conditions supporting compassionate release and the likelihood that the conditions will persist.  These are not interests we should lightly dismiss or re-prioritize.

These policy arguments, though sound in the abstract, fail to give effect and suggest a lack of understanding for why and how Congress changed the process for compassionate release motions in the FIRST STEP Act.  As I stressed in this prior post what this panel decision ignores, namely all the reasons Congress sought to now enabled district judges to consider the merits of a sentence reduction under § 3582(c)(1)(A) without awaiting even full consideration of a request by prison administrators.  For years, BOP failed to use its authority to seek reductions even in the most compelling of cases, and so Congress decided to district courts could and should assess sentence-reduction requests without BOP serving as any kind of gatekeeper precisely because Congress concluded BOP could and should no longer be trusted to "prioritize the most urgent claims" or to adequately "investigate the gravity of the conditions" supporting a claim

Critically, with the FIRST STEP Act revision, Congress did not even actually require defendants to exhaust the BOP motion-request process before turning to the courts — which is what would have made sense if Congress still trusted the BOP process to some extent.  Rather Congress provided that a sentence-reduction motion could be considered by courts after "the lapse of 30 days from the receipt of such a request."   Put another way, this statute actually does have an express "carveout to statutory exhaustion requirements" in the form of the "lapse of 30 day" provision.  But, so the argument might go, even though Congress did create an exception to BOP exhaustion in the form of a "30 day" lapse requirement, why should courts even consider short-circuiting that express timeline?  Well, in the midst of a pandemic, a timeline intended by Congress to give a prisoner quick access to the court sensibly can and should be sped up consistent with the overall goals of § 3582(c)(1)(A).  But, disappointingly, rather than give full effect to the fundamental interest of Congress in giving ailing prisoners a chance to have speedy access to the courts based on the equities of the case, this panel decision determines that it is good policy to be respectful of BOP interests that Congress itself was eager to de-prioritize.

Prior related posts:

June 2, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

Timely reminders that racial disparities may persist and grow even as the carceral state begins to shrink

The Marshall Project has this notable new piece about arrest rates during the COVID era under the full headline "Police Arrested Fewer People During Coronavirus Shutdowns — Even Fewer Were White: Racial disparities grew in five cities as arrests fell, according to our new data analysis."  Here are excerpts:

As protesters clash with police across the country, they are venting not only their rage about the death of George Floyd at the hands of Minneapolis police, but more broadly their frustration with decades of racial inequality in the American criminal justice system.

These inequalities persisted during the coronavirus outbreak, a new Marshall Project analysis of arrest data found. Even as crime rates fell while much of the country was ordered to shelter in place, arrest data from five U.S. cities suggests racial disparities worsened in March and April.  Across these cities, arrests of white people dropped 17 percent more than arrests of black people and 21 percent more than Hispanic people.

In March, the New York City Police Department made about 13,000 arrests, a 30-percent drop from the same month a year before. While most people in the city were confined to their homes, the changes in arrest practices did not affect residents of all races equally.  White people experienced the largest decreases in arrests, whereas arrests of black and Hispanic people dropped at a much slower rate.

New York is not an outlier. The Marshall Project’s analysis found that arrests in Los Angeles, Baltimore, Pittsburgh and Tucson, Arizona, reflected similar patterns.  As the total number of arrests plummeted through March and April, they didn't drop equally across the board. Arrests of white people decreased far more than the arrests of black and Hispanic people. Though they were much fewer to begin with, arrests of Asians, Native Americans and people of other backgrounds declined faster than arrests of white people.

These disparities in arrests took place during the same time period when some police departments came under fire for how they enforce social distancing orders. In New York City, more than 80 percent of people arrested for violating those orders were black. In major cities across Ohio, black residents were more than four times as likely to be charged with violating stay-at-home orders than their white peers. 

In Los Angeles, New York and Tucson, three cities that break down arrests by the severity of the alleged offense, The Marshall Project found that with each racial and ethnic group, misdemeanor arrests plummeted during the early weeks of the pandemic, while felony arrests, for the most severe crimes, declined slightly.  For example, from February to March, the Los Angeles Police Department made 1,000 fewer arrests for misdemeanor charges, such as driving under the influence or traffic violations. Meanwhile, arrests for felony charges, like aggravated assault and rape, dropped by 100.

These COVID-era data remind me of the data we often now see on marijuana-related arrests in the wake of legalization or decriminalization, where the total number of arrests decline (often significantly) but with racial disparities persisting or even growing.  Here are just a few recent studies on this topic via my coverage at my Marijuana Law, Policy & Reform blog:

Also worth recalling in this context is the notable reality that a number of US states with relatively smaller prison populations often have the most racially disparate prison populations.  This 2016 Sentencing Project report on the topic detailed that the states with the largest disparities in their prison population between whites and blacks were Iowa, Minnesota, New Jersey, Vermont, and Wisconsin.  Notably, all of these states have well below the national average in per-capita prison population.

These numbers do not surprise me because I often notice, in both policies and practices, how disparities and discrimination can find express in the exercise of leniency or mercy.  I see this especially in death penalty administration, when so many different actors in the system (prosecutors, judges, jurors) have formal and/or informal authority to prevent a murderer from being subject to the death penalty.  Disparities can and will result merely not from legal actors being distinctly punitive toward certain defendants, but also from these actors being distinctly willing to act leniently or mercifully toward only certain other defendants.  Other sentencing systems, where prosecutorial charging and bargaining discretion in turn shape judicial sentencing discretion, also surely reflect differential expressions of leniency as well as differential expressions of punitiveness.

I bring all this up not too create cynicism or fatalism about what legal and social change might achieve, but rather to highlight how much work there is to do even as we make progress in reducing the scope and impact of mass criminalization, mass punishment and mass incarceration.  In recent years, I have grown ever more hopeful about the potential, politically and practically, to shrink the carceral state in America.  But the events of this past week provide a critical reminder of our need to keep our eyes on all the prizes that we are aspiring to achieving in this critically important work.

June 2, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Senate Judiciary Committee about to start "Examining Best Practices for Incarceration and Detention During COVID-19"

At 10:00 am this morning, June 2, 2020, the Senate Judiciary Committee has scheduled this full committee meeting on "Examining Best Practices for Incarceration and Detention During COVID-19."  Here are the scheduled witnesses:

Panel I
Mr. Michael Carvajal
Director
Federal Bureau of Prisons
Washington , DC
 
Dr. Jeffry D. Allen, MD
Medical Director
Federal Bureau of Prisons
Washington , DC

Disappointingly, as of this writing, there is no written testimony linked from the Senate website from any of these witnesses. If any becomes available later, I will be sure to post it.

UPDATE: I am pleased to see that there is now linked written testimony for all the witnesses listed above.  Here is the written testimony for both BOP witnesses, and here are excerpts on "Current Status" and "Home Confinement":

The Bureau manages the health and treatment of approximately 149,000 inmates in BOP facilities and RRCs.  Over half of our institutions have no COVID-19 positive cases among inmates or staff.  Indeed, two-thirds of our positive cases are in just 7 of our 122 institutions nationwide.  As of June 1, 2020, across all facilities, there are 1,650 federal inmates who are currently COVID-19 positive based on test results.  There are also currently 171 Bureau staff who have confirmed positive test results for COVID-19 nationwide, with 445 staff recovered and returning to work.

In total, from March 1, 2020, the date of the beginning of the national emergency proclaimed by President Trump, until today, 5,323 inmates total have tested positive for COVID19 and to-date, 3,784 have recovered.  More than 80 percent of infected individuals have not become significantly ill.  The number of hospitalized inmates — those who became significantly ill — is currently only 83 in total.  And in fact, the number hospitalized is on a significant downward trajectory (see attached), suggesting that our attempts to mitigate the transmission of the virus is effective.  Regrettably, there have been 68 federal inmate deaths from COVID-19.

To-date, the Bureau’s overall infection rate is approximately 4%, including clinically-probable and suspect cases, and based on the total number of inmates in custody.  The BOP's death rate of those infected is approximately 1.1% and is slightly lower than the US rate of 1.3%.  The BOP's rate of hospitalization has continued to decline over time with only 83 inmates currently hospitalized and only 22 of those on ventilators....

As the pandemic grew more widespread, the Bureau began aggressively screening the inmate population for inmates who were appropriate for transfer to RRC or Home Confinement for service of the remainder of their sentences.  On March 26, 2020 and April 3, 2020, Attorney General Barr issued memoranda to the Bureau directing us to increase the use of Home Confinement, particularly at institutions that were markedly affected by COVID-19, for vulnerable inmates.  The CARES Act, signed by President Trump on March 27, 2020, further expanded our ability to place inmates on Home Confinement by lifting the statutory limitations contained in Title 18 U.S.C. § 3624(c)(2) during the course of the pandemic.  I am pleased to note that we currently have 6,120 inmates in RRC and 6,398 on Home Confinement.  This is an 124% increase in HC from March 26, 2020. There are an additional 985 who are scheduled to transfer to Home Confinement in the coming weeks.  While we continue to make robust strides in these placements to reduce risk of spread to the inmate population and staff, public health and safety must remain our highest priority.  The Attorney General has issued guidance as to which inmates should be considered for home confinement.  Staff are conducting individualized assessments to ensure inmates are appropriate for community placement both from a public safety perspective and given their own specific needs and circumstances.  Additionally, we must ensure inmates who release to Home Confinement have a viable residence in which to reside.

It should go without saying that while we are dedicated to the protection of our inmates’ health and safety, we also have to consider — as the Attorney General’s guidance emphasized — that inmates who presented a risk of public safety because of their criminal acts or other factors cannot be released.  Neither can we release inmates who would be worse off outside Bureau facilities than inside, such as those whose medical conditions could not be adequately cared for by health systems that are themselves overwhelmed by the response to COVID infections in the general community.  Nor can we release inmates who do not have safe housing for themselves or housing that is not subject to appropriate safeguards for home confinement, which is still, after all, a form of incarceration for persons convicted of crimes whereby such persons are still serving a federal sentence.

June 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, June 01, 2020

Senator Harris and Representative Jeffries write to AG Barr to express "concern about the process for transferring incarcerated individuals to home confinement"

As reported in this AP piece, "Democratic lawmakers are raising questions about the federal Bureau of Prisons’ release of high-profile inmates and are calling for widespread testing of federal inmates as the number of coronavirus cases has exploded in the federal prison system."  Here is more from the press piece:

Sen. Kamala Harris and Rep. Hakeem Jeffries sent a letter Monday to Attorney General William Barr and Bureau of Prisons Director Michael Carvajal over the home confinement policies. They expressed concern that a number of high-profile inmates, including former Trump campaign chairman Paul Manafort and former Trump lawyer and fixer Michael Cohen, had been released despite not meeting all the criteria that the agency has set for inmates prioritized for home confinement.  “As President Trump’s associates are cleared for transfer, tens of thousands of low-risk, vulnerable individuals are serving their time in highly infected prisons,” the lawmakers wrote.

They pointed to the case of Andrea Circle Bear, a 30-year-old pregnant inmate whose baby was delivered by cesarean section while she was on a ventilator after being hospitalized with coronavirus symptoms and who died in federal custody in late April.  They also pointed to the case of a 67-year-old man serving a sentence at FCI La Tuna, a low-security prison in Texas, who has advanced coronary disease and who was initially told he would be released to home confinement but later was told it was rescinded because he hadn’t served at least half of his sentence.

Prison advocates and congressional leaders have been pressing the Justice Department for weeks to release at-risk inmates ahead of a potential outbreak, arguing that the public health guidance to stay 6 feet (1.8 meters) away from other people is nearly impossible behind bars. And they’ve raised alarm about what they’ve described as mixed messages from the prison agency about the criteria for who can be released....

The Bureau of Prisons has disputed that it is giving any preferential treatment to high-profile inmates and has said it has placed 3,544 inmates on home confinement since Barr first issued a memo ordering an increase in the use of home confinement in late March. The response from the Bureau of Prisons on the coronavirus has raised alarm among advocates and lawmakers about whether the agency is doing enough to ensure the safety of the about 137,000 inmates serving time in federal facilities.

As of Monday, 5,234 inmates had tested positive for COVID-19 since late March; the Bureau of Prisons said 3,605 had recovered. At least 64 inmates have died. And even though officials have stressed infection and death rates inside prisons are lower compared with outside, a high number of inmates tested come back positive — signs that COVID-19 cases are left uncovered.

Separately, Sens. Elizabeth Warren and Cory Booker asked the Bureau of Prisons to immediately begin conducting “universal diagnostic testing” for all federal inmates and staff members, including those held at privately run facilities, and to publicly release daily data on the number of inmates and staff members who have been tested. “Widespread and continued diagnostic testing is crucial to controlling the COVID-19 pandemic,” they wrote. The lawmakers said the Bureau of Prisons has “not been forthcoming with specific testing protocols” and is not providing specific information about the testing capacity at federal prisons across the U.S.

The full three-page letter referenced in this article is available at this link, and it concludes with a number of questions that would be nice to see answered (e.g., "How many individuals has BOP recommended for transfer to home confinement since March 26, 2020?... Please provide a breakdown of those recommendations by age, gender, race, and crime of conviction.").

June 1, 2020 in Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, May 31, 2020

"Proposed Public Health and Public Safety Pathways for Criminal Justice System Responses to Covid-19"

The title of this post is the title of this effective short document produced by a number of organizations involved in both criminal justice administration and public health.  Here is how it gets started:

A wide array of criminal justice stakeholders have come together to call for a public health-oriented approach to the COVID-19 crisis. The key recommendations are as follows:

 1.  Release of people who are incarcerated, based on clear public health recommendations and release criteria, is a critical intervention to limit the spread of disease.

 2.  Limiting new admissions to closed correctional settings is an equally critical component of reducing disease transmission for the protection of our communities.

 3.  Violations of COVID-19-related directives and orders should be addressed with a public health approach, rather than with criminalization and law enforcement surveillance.

 4.  Innovations that promote integration of public health priorities into the justice system already exist and may help local jurisdictions in their responses, including specialty courts, evidence-based models of correctional health care, and dedicated re-entry services.

 5.  Connections among public health organizations, researchers, and criminal justice stakeholders are necessary to manage health crises in custodial settings and should endure beyond the COVID-19 pandemic.

May 31, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Despite a short work week, still another long list of new COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

Another (too) busy work week for me meant that I needed this weekend to catch up on last week's  COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).  As readers may recall, my last post with a list of recent grants (covering grants mostly from May 16 to 21) was quite lengthy.  Perhaps due in part of a shorter work-week, this listing is not quite as long, but it still represents lots of uplifting news for certain defendants and their loved ones during a time when I think we can all benefit from some positivity.  So:

United States v. Somerville, No. 2:12-CR-225-NR, 2020 WL 2781585 (WD Pa. May 29, 2020)

United States v. Chester, No. 6:17-CR-06151 EAW, 2020 WL 2771077 (WDNY May 29, 2020)

United States v. Acoff, No. 3:15cr157 (MPS), 2020 WL 2781798 (D Conn. May 29, 2020)

Harrell v. United States, No. 13-20198, 2020 WL 2768883 (ED Mich. May 28, 2020)

United States v. Gonzalez, No. 12-CR-326 (JMF), 2020 WL 2766048 (SDNY May 28, 2020)

United States v. Feucht, No. 11-CR-60025-MIDDLEBROOKS, 2020 WL 2781600 (SD Fla. May 28, 2020)

United States v. Silkeutsabay, No. 2:13-CR-0140-TOR-3, 2020 WL 2747401 (ED Wash. May 27, 2020)

United States v. Whyte, No.  4:12cr00021-002, 2020 WL 2754761 (WD Va. May 27, 2020) 

United States v. Body, No. 18 CR 503-1, 2020 WL 2745972 (ND Ill. May 27, 2020)

United States v. Jackson, No. 5:02-cr-30020, 2020 WL 2735724 (WD Va. May 26, 2020)

United States v. Morris, No. 12-154 (BAH), 2020 WL 2735651 (DDC May 24, 2020)

Nearly a dozen grants in a short week is still remarkable, and this group can be rounded up to an even dozen with McCoy v. United States, No. 2:03-cr-197, 2020 WL 2738225 (ED Va. May 26, 2020).  McCoy grants a sentence reduction, without any mention of COVID, to redress an old excessive sentence imposed on a young offender and inflated by stacking mandatory 924(c) counts.  Here is the closing section from McCoy court: "Petitioner was sentenced at just 20 years old to a mandatory 421 month term for crimes that he would face an advisory guidelines range of 205–214 months if sentenced today.... Petitioner's relative youth at the time of the sentence, the overall length of the sentence, the disparity between his sentence and those sentenced for similar crimes after the FIRST STEP Act, and his rehabilitative efforts form an extraordinary and compelling basis for relief.  Accordingly, .... Petitioner's total sentence is reduced to a cumulative term of 205 months."

As I have mentioned before, a lot of late week rulings do not appear on Westlaw right away, so there might still be some additional late May grants that could show up on the service later this week.  Moreover, as I have mentioned in a number of prior posts, I am quite certain that these Westlaw listings do not represent all sentence reductions being granted by federal courts these days.  The data in the Marshall Project article flagged here have led me to believe that Westlaw is picking up only about half or even less of all federal sentence reduction grants.

Prior recent related posts since lockdowns:

May 31, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, May 29, 2020

Terrific Prison Policy Initiative coverage of the limits of compassionate release and related pandemic problems

Pyle_compassionate_releasePrison Policy Initiative is a regular must-read for so many reasons in normal circumstance, and PPI has been especially effective with various "briefings" related to prison populations and other matters amidst this pandemic.  I have been remiss by failing to flag all of these on-point postings from the last few weeks

The last of these briefings, which is on the topic of compassionate release and was posted just today, includes a terrific visual from artist Kevin Pyle to help highlight why so very of those who apply for compassionate release get any relief.  Here is part of the text of the posting:

Applying for compassionate release is a lengthy and cumbersome process. Given that those who apply are almost always terminally ill or profoundly incapacitated, the arbitrary nature of this process means many die before their cases are resolved.

The compassionate release process varies tremendously between states (some states even give it a different name, like “medical parole,” “geriatric parole”, etc.), but the basic framework is the same: An incarcerated person is recommended for release on compassionate grounds to prison administrators, who then solicit a medical recommendation, and then administrators or members of the parole board approve or deny compassionate release. Some states allow only family and attorneys to recommend that someone be released on these grounds; others allow incarcerated individuals to apply on their own behalf, or allow prison personnel to do so.

Compassionate release programs are plagued by many shortcomings, including:

  • Requirements that a person be extremely close to death, or so incapacitated that they do not understand why they are being punished.
  • Requiring medical professionals to attest that someone is within six months, or nine months, of death. Health professionals are reluctant to give such exact prognoses, which means prison officials will default to saying “it’s safer just to not let this person go.”
  • Allowing the ultimate decision-makers to overrule recommendations from medical professionals and prison staff (e.g. by refuting or ignoring a medical prognosis).

The compassionate release process is frustratingly obscure not only for applicants, but for reporters, advocates, and others trying to understand the system. In their national survey, FAMM found that only three states are required to publish data on compassionate release grants, and eight other states publish some publicly available data, leaving most Americans in the dark about how often compassionate release is actually used. And despite that fact that FAMM has helpful memos for all fifty states and the District of Columbia detailing eligibility requirements for compassionate release, the application and referral process, the necessary documentation and assessments, and the decision-making criteria, the application process remains an arduous one....

But even when a compassionate release system operates efficiently and fairly, the majority of people in prison are still not eligible for it. As currently constituted, these programs exclude too many people and these systems were never designed for quick responses during a global pandemic. States need to look beyond compassionate release — including expedited parole, and mass commutations — to slow the spread of the pandemic and prevent a needless tragedy behind bars.

May 29, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Thursday, May 28, 2020

Federal inmate population, as reported by BOP, continues steady decline (which continues my wondering about data)

Another Thursday brings another new check on the federal Bureau of Prisons' updated "Total Federal Inmates" 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.  As we now approach the end of May, 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 166,647 (as of May 21, 2020) to now a BOP reported total of 165,575.

I have repeatedly suggestions that a reduced inflow of federal inmates — due to many sentencings and reportings to prisons being delayed — has likely been playing a big role in the significant reported population declines in recent months.  But, in this recent post noting a BOP press release about coming inmate transfers, I wondered if the historic COVID-era decline in the BOP  numbers has been mostly an artifice of 6,800 federal prisoners not being officially "counted" while being held in local detention facilities during the COVID shutdown.  Because this week we have not yet seen a spike in BOP reported inmates, and in fact declines are continuing at a steady pace, I am left to continue wondering just what the heck is going on and what these number now "really" represent about the federal prison population and COVID's impact. 

A few of many prior related posts:

May 28, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, May 27, 2020

Reviewing a handful of the latest ugly prison pandemic headlines

I have not done a round-up of stories on the spread of COVID-19 through state and federal prison populations lately, in part because this sad tale has already become just standard bad news.  But some recent headlines and stories from this arena seemed especially worth flagging.  So:

May 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

The new death penalty: COVID has now killed more than 500 US prisoners and prison staff according to UCLA Law data

In this post a few weeks ago, I noted what might be called a new kind of death penalty for prison and jail inmates in the United States: by killing many hundreds of incarcerated persons, COVID-19 has turned all sorts of other sentences into functional death sentences.  In that prior posting, I flagged that the UCLA Covid-19 Behind Bars Data Project, as of May 11, had tabulated 341 "Confirmed Deaths (Residents)," and I highlighted that this meant COVID in a few months had produced more prisoner deaths than had been produced by carrying out formal death sentences in the United States for the entire period from 2010 to 2020. 

As I put together my prior post, I was thinking about the inaptness of the COVID/capital punishment comparison because the death penalty is not lethal for prison staff.  But sadly, dozens of prison staff have now also been killed as a result of the toxic combination of the coronavirus and modern mass incarceration.  With these additional victims in mind, especially just after Memorial Day, I thought it important to note that, according to this UCLA Law data spreadsheet, we have now passed a notable grim milestone for combined deaths of prison staff and prisoners.  Specifically, as of May 27, the folks at UCLA are reporting a total of 42 "Confirmed Deaths (Staff)" and 459 "Confirmed Deaths (Residents)."

Of course, 500 is just a round number and every single one of these deaths is individually sad and disconcerting.  I sincerely hope that, somehow, we might be getting past the worst of this pandemic that has (predictably) already been quite lethal for persons in and around prisons and jails.  I also hope I won't have another major lethal milestone to document anytime soon, but it is probably foolish to ever been too hopeful about developments in incarceration nation.

A few prior recent related posts:

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

Tuesday, May 26, 2020

"Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out"

The title of this post is the headline of this significant new ProPublica piece discussing yet another ugly example of how the Department of Justice acts more like a Department of Incarceration.  I recommend the piece in full, and here are excerpts:

Even as the Justice Department announced that federal prisons would release vulnerable, nonviolent inmates to home confinement to avoid the spread of COVID-19, the agency was quietly adopting a policy that makes it harder for inmates to qualify for release, not easier. The result has been that more than 98% of inmates remain in federal custody, while a handful of celebrity inmates, like former Trump campaign chair Paul Manafort, have been released to home detention.

In two memos, one in late March and a second in early April, Attorney General William Barr directed the Federal Bureau of Prisons, which is part of the Justice Department, to begin identifying inmates who could safely be released to home confinement — essentially house arrest. They instructed prison officials to grant “priority treatment” to inmates deemed to present minimal risk to the public.

Separately, however, the Bureau of Prisons had drafted a 20-page policy document this year that altered a standard adopted only a year ago and made it harder for an inmate to qualify as minimum risk.

ProPublica obtained a copy of the document, which does not appear to have been finalized, and its existence surprised and baffled lawyers, prison reform advocates and inmates interviewed for this article....

The Bureau of Prisons’ reliance on the unpublished policy document has exacerbated widespread puzzlement about how the agency is implementing Barr’s home-confinement order. “There’s been nothing but confusion,” David Patton, the chief federal public defender for the New York City area, said. “We’ve received a steady stream of questions from clients about their scores, and we have no answers, because BOP doesn’t give us any.”

Fewer prisoners have been released than was expected when the attorney general made his announcement, lawyers say. About 3,050 inmates have been moved to home confinement as of May 21, Bureau of Prisons records show. That’s around 1.8% of the people under the bureau’s supervision. That figure is significantly smaller than the roughly 20% of inmates who fall into the minimum risk category (though it’s not automatic that all of them would qualify for release) under the 2019 rules.

The slow pace of prisoner releases has begun to attract attention. On May 19, a federal judge accused officials at the Elkton Federal Correctional Institution in Ohio — the site of a deadly coronavirus outbreak cited by Barr in his order — of moving too slowly to release inmates and “thumbing their noses” at Barr’s directive. He instructed them to expand the class of inmates eligible for home confinement by including inmates not only with minimum-risk scores, but also those said to have a low risk. The Justice Department has asked the Supreme Court to halt the order.

At the urging of Sens. Dick Durbin, D-Illinois, and Chuck Grassley, R-Iowa, who co-authored the First Step Act, the Justice Department’s inspector general has agreed to examine the scope of Barr’s directive as well as the Bureau of Prisons’ compliance with it and the agency’s overall response to the pandemic.

May 26, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Noticing COVID impacts through drug supply chains and enforcement

I doubt there is a single area of life not impacted by the global pandemic, and thus these recent next stories about impacts on the drug trade and enforcement are not shocking though still interesting:

The NPR story summarizes some of the findings in this big new "Research Brief" coming from the United Nations titled "COVID-19 and the drug supply chain: from production and trafficking to use."

May 26, 2020 in Drug Offense Sentencing, Impact of the coronavirus on criminal justice | Permalink | Comments (1)

SCOTUS, by 6-3 vote, refuses to stay original federal judicial order to transfer vulnerable prisoners "out of Elkton through any means"

As reported here by Amy Howe at SCOTUSblog, this afternoon "the Supreme Court denied a request by the federal government to put a temporary hold on an order by a federal government that could lead to the release or transfer of over 800 inmates from a federal prison where nine inmates have died from COVID-19."  But, as she further explains:

The inmates’ victory, however, appeared to be mostly procedural and likely fleeting: The court explained that the government had not asked them to block the district court’s most recent order, and it indicated that the government could return to the Supreme Court to 'seek a new stay if circumstances warrant'.” Moreover, three justices – Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated that they would have granted the government’s request.

Today’s order came in a case filed last month by inmates at a low-security federal prison in Elkton, Ohio. The inmates argued that they face a disproportionately high risk of contracting COVID-19 because they are in such close proximity to other inmates and correctional staff that social distancing is virtually impossible. In an order issued on April 22, the district court instructed officials at the Bureau of Prisons to evaluate elderly and high-risk prisoners for transfer out of the Elkton facility, either through some form of early release (such as home confinement, compassionate release, parole or community supervision) or by moving them to another facility.

The inmates returned to the district court this month to enforce the April 22 order. They stressed that although the BOP had identified 837 inmates as elderly or high-risk, none of them had been released or moved yet: five were waiting for home confinement, while six others had been designated as potentially qualifying for home confinement. On May 19, finding that the BOP had been “thumbing their nose at their authority to authorize home confinement,” the district court ordered the government to “make full use of the home confinement authority,” and to reconsider inmates’ eligibility without using certain criteria – such as the amount of time remaining on an inmate’s sentence – as a categorical bar. The district court also ordered the government to act quickly on applications for compassionate release, and to explain by May 26 why any prisoners who are not eligible for release could not be transferred to another facility “where social distancing is possible.”

The government came to the Supreme Court last Wednesday, asking the justices to put the district court’s April 22 order on hold while it appeals to the U.S. Court of Appeals for the 6th Circuit and, if needed, the Supreme Court. In a filing by U.S. Solicitor General Noel Francisco, the government argued that allowing an order that would require the release or transfer of over 800 prisoners could both jeopardize public safety and interfere in the management of federal prisons.

In their brief opposing the stay of the district court’s order, the inmates emphasized that as of May 19, there were 135 active COVID-19 cases among the inmates at the Elkton prison, plus eight active cases among staff members. The only way to lower the risk of infection for inmates and staff is to transfer inmates out of the facility, as the attorney general himself has recognized, they argued....

In the one-page order today, the court explained that the government was “seeking a stay only of the District Court’s April 22 preliminary injunction,” even though the district court had “issued a new order enforcing the preliminary injunction and imposing additional measures” on May 19. “Particularly” because the government had neither appealed the May 19 order nor asked the 6th Circuit to put it on hold, the court continued, the Supreme Court would not now block the April 22 injunction, but the government could return to seek a new stay “if circumstances warrant.”

The full SCOTUS order is available at this link.

Prior related posts:

May 26, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

With reopenings, might coming months bring big crime spike (and will modest jail and prison releases be blamed)?

The question in the title of this post is my pessimistic first thought in response to this optimistic New York Times article headlined "A Pandemic Bright Spot: In Many Places, Less Crime." Here are excerpts from the lengthy piece:

The absence of people during the coronavirus pandemic has produced a rare payoff in Fargo and most American cities — a steep drop in major crimes.  “The dynamics of street crimes, of street encounters, of human behavior are changing because people are staying home,” said Philip M. Stinson, a former police officer turned criminal justice professor at Bowling Green State University.

Crime, say those who study it and those who fight it day to day, requires three things — a perpetrator, a victim and an opportunity.  With tens of millions of Americans off the streets, would-be victims and opportunities for crimes have vanished, causing a drop in the number of perpetrators committing infractions.  The dip in crime is compounded by the fact that some police departments have been hampered by quarantines, or have made fewer arrests to limit interactions or to avoid filling the jails.

Arrests in Chicago, where the Cook County jail became one of the nation’s largest-known virus hot spots, were down more than 73 percent during roughly the initial month of the lockdown, said Deputy Chief Thomas Lemmer of the Chicago Police Department.

Crime did not entirely disappear, of course, and some of the worst offenders remained undeterred.  Homicides in numerous cities remained flat or even rose. Burglaries of commercial properties and auto thefts have often multiplied, as criminals exploited shuttered stores and unattended cars.

Young men, considered the most violent demographic, have adopted a certain swagger in many places, police officers and criminologists said. With fewer witnesses around and with the police less likely to stop them, they feel less vulnerable to being caught. The men also find it easier to track down rival drug lords or gang leaders, who are mostly sheltering at home like everyone else.

In Las Vegas, where police said crime fell more than 22 percent during the initial two months of the lockdown, the Strip area, with its crowded nightclubs and bars, had traditionally had its problems with crime. Since it was largely devoid of tourists for weeks, crime migrated to some residential streets....

History indicates that hard times often reduce crime.  Chicago showed a marked drop in murders in 1918, when America faced the devastating Spanish flu, according to records analyzed by Leigh Bienen, a law professor at Northwestern University. After 293 killings in the city in 1917, the number fell to 260 in 1918 before rising to 345 the following year. The flu might not have been the only factor, she said.  Yet other municipalities also reported a decrease.

Crime rates similarly fell during the Great Depression that started in 1929, as well as during the 2008-9 recession, said Richard Rosenfeld, a criminologist at the University of Missouri-St. Louis. “That runs contrary to common perception that as misery spreads, crime rates should go up,” Dr. Rosenfeld said. “When there are fewer potential victims on the streets, there will be few potential crimes, regardless of the increases of the level of economic distress or misery.”...

For the month ending on May 17, most major crimes in New York City were down 21 percent from the same period last year, according to department statistics, although murders were unchanged, burglaries were up, and car thefts jumped almost 68 percent.  There were no clear patterns across all cities, according to Christopher Herrmann, a professor of law and police science at the John Jay College of Criminal Justice. Murders this year were up 14 percent in Philadelphia and 85 percent in Nashville but fell 2 percent in Baltimore and 11 percent in Atlanta.  Nashville was a rare city with increased crime over all....

Besides crime, many police departments reported that they are dealing with a higher number of drug overdoses and suicidal callers.  Police officers in Kalamazoo, Mich., responded to one overdose in December, said David Boysen, assistant chief for public safety.  In April, there were 26, and two of those people died.

One drop in crime statistics may actually be worrisome: Some cities indicated a decrease in both domestic abuse and child abuse calls.  The police in those cities said they suspected that abuse was actually more prevalent, given that most people are stuck at home.  But with no teachers to spot bruises in the classroom, and nowhere for people to escape their abusers, such crimes were less visible, they said.

With the country gradually reopening, experts wonder whether crime will rebound to its previous levels, as perpetrators and victims interact again.  Large American cities last experienced a sustained slide in crime for some 13 years after 1992, said Wesley G. Skogan, a professor emeritus at Northwestern University who studies police programs, calling the reasons “one of the great mysteries of the end of the 20th century.”

Dr. Herrmann, of John Jay College, has a paper set to be published this fall detailing how crime fell near a Bronx subway station during its reconstruction.  It took about two weeks after the station reopened for the numbers to rebound to previous levels, he said, but the post-lockdown rise will likely be slower because people are still hesitant about going outside.

Still, police officers are bracing for what happens next. “I don’t know what the future holds,” said Chris Bailey, assistant chief at the Indianapolis Metropolitan Police Department. “It makes me a little nervous from the crime perspective.”

It is nice to hear that crime has mostly been down during the pandemic, and this reality is especially notable because pre-pandemic crime rates were already relatively low (historically speaking).  But, in addition to highlighting how mixed (and mysterious?) the latest crime numbers are, I wanted this post to flag the real possibility that a crime spike could be coming soon.

Around this time of year under normal circumstances, crime tends to spike because of warmer weather.  This Governing article, looking at lots of crime data from a few years ago, reports: "On average, monthly crime for seven major offense types increased nearly 10 percent between June and August from the rest of the year."  In 2020, the we will have the coming usual summer crime spike combining with more people emerging from lockdown combining with police forces and other crime-fighting infrastructure returning to more normal operations.  These realities lead me to worry about a big crime spike over the next three months, particularly if and when compared to the crime decline over the last three month.

A crime spike is inherently bad for everyone, particularly victims.  But a crime spike in summer 2020 may also create extra challenges for criminal justice reform advocates eager to see decarceration efforts continue to gain momentum.  As this recent post from Michael Rushford at Crime & Consequences highlights, opponents of criminal justice reforms will be quick to try to pin any and all uptick in crimes on any and all decarceration efforts.

Prior related posts:

May 26, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

Saturday, 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 (1)

Friday, 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)

Thursday, 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)

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)

Wednesday, 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)

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)

Tuesday, 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)

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)

Monday, 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)

"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)

Sunday, 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 (1)

Thursday, 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)

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)

Wednesday, 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)

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)

Tuesday, 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)

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)

Monday, 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)

Sunday, 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)

Friday, May 08, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts since lockdowns:

May 8, 2020 in Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

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

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

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

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

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

The next execution in Texas is scheduled for June 16.

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

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

Some prior related capital COVID posts:

May 8, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

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

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

Press Coverage:

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

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

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

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

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

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

Commentary:

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

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

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

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

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

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

May 8, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Thursday, May 07, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

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

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

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

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

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

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

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

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

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

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

May 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, May 06, 2020

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

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

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

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

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

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

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

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

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

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

May 6, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)