Tuesday, April 07, 2020

Pretty new BOP COVID-19 update page reports ugly new spike in COVID cases among federal inmates and staff

Sometime today, the federal Bureau of prisons updated its BOP's COVID-19 Update page.  The new page now has a map that now shows the "34 BOP facilities and 6 RRCs affected nationwide" by COVID_19 cases.  The page also report that as "04/07/2020, there are 241 federal inmates and 73 BOP staff who have tested positive for COVID-19 nationwide. There have been 8 federal inmate deaths and 0 BOP staff member deaths attributed to COVID-19 disease."  (Just two days ago, on April 5,  the page reported 138 federal inmates and 59 federal prison staffers had tested positive for the coronavirus).

This BOP page is now also reporting that "Since the release of the Attorney General's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 615 inmates on home confinement."

Meanwhile, the Daily Beast is reporting that "The Bureau of Prisons Just Bought a Ton of Hydroxychloroquine, Trump’s COVID-19 Miracle Drug"

April 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (10)

Reviewing action by (too few) Governors to reduce incarcerated populations in response to COVID crisis

I have been pleased to see a few Governors step up to deal with the COVID crisis created by crowded prisons and jails, but I continue to be disappointing that there are seemingly not that many chief executives being proactive in this space during these harrowing times.  I suspect and fear that I am here not providing a complete accounting of good gubernatorial actions, but I welcome comments or emails for supplementing this list:

Alabama: "Ivey order allows for release of some county jail inmates"

Colorado: "Colorado places a moratorium on new prison intakes during pandemic"

Kentucky: "Kentucky plans to release more than 900 prisoners because of the COVID-19 outbreak"

Illinois: "Pritzker signs executive order allowing medical furloughs for IDOC inmates vulnerable to coronavirus"

Ohio: "Coronavirus in Ohio: Gov. Mike DeWine plans to release some prison inmates due to COVID-19"

New Mexico: "Gov. orders early release of some inmates"

New York: "NY to release 1,100 parole violators as coronavirus spreads"

April 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

"We’ll see many more covid-19 deaths in prisons if Barr and Congress don’t act now"

The title of this post is the headline of this new Washington Post op-ed authored by three federal public defenders, Lisa Freeland, David Patton and Jon Sands. Here are excerpts:

The numbers of covid-19 cases in the Bureau of Prisons are rising exponentially, at a pace far surpassing the U.S. population at large....  And because testing has been grossly insufficient, these numbers are almost certainly an undercount. 

As federal public and community defenders, we represent the majority of those charged with federal crimes.  We are witnessing the public health crisis firsthand.  Many of our clients fall into the category of people the Centers for Disease Control and Prevention deemed particularly vulnerable to covid-19....  Most of them were convicted of nonviolent offenses.  They must be safely released under public health protocols, some even temporarily, to spare them a high risk of death.

It is too late for the crisis to be entirely averted, but the worst can be prevented if Congress and Attorney General William P. Barr act with urgency.  So far, however, Barr and federal prosecutors have opposed even modest efforts to reduce the prison population.  In courtrooms across the country, when lawyers seek bail or compassionate release for vulnerable people accused or convicted of nonviolent offenses, federal prosecutors have vigorously opposed the requests — even in cases where people’s sentences are near completion.  In nearly every case, prosecutors are making the same argument that Barr advanced in a recent statement: that inmates are safer in prison than they would be at home. It is an absurd claim, contradicted by science and fact....

The attorney general has the authority to rapidly transfer vulnerable people to home confinement; Congress expressly equipped Barr to use this authority broadly with passage of the Cares Act.  But for reasons we cannot fathom, he failed to immediately use this lifesaving authority.  On March 26, Barr issued a policy that purported to expand the use of home confinement but, rather than helping to release people, erected new hurdles to transferring our clients to safety.  On April 3, he issued a memorandum full of mixed messages.  Although he directed the Bureau of Prisons to act “with dispatch” to increase the use of home confinement, he named only three prisons and “others similarly affected” as deserving priority.  He still does not seem to get it: Every prison and jail requires immediate attention.  Altogether, Barr’s guidance has been muddled and arbitrary, bearing little connection to the enormity of the crisis or threat to public safety.

Because Barr is obstructing reasonable efforts to release vulnerable people, Congress must act. Three simple, temporary provisions that could be set to expire after the covid-19 emergency passes would do enormous good.  First, bail should be presumed for anyone awaiting trial or sentencing absent credible evidence that the person poses a specific threat of violence.  Second, for anyone already sentenced, judges should consider temporary release for the duration of the public health emergency.  Third, vulnerable people seeking court-ordered compassionate release should not be subject to Bureau of Prisons administrative hurdles. 

April 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, April 06, 2020

Latest BOP data has another big spike in COVID cases, and ugly press reports and lawsuits now part of story

Late yesterday, the BOP's COVID-19 Update page reported, as of April 5, 138 federal inmates and 59 federal prison staffers had tested positive for the coronavirus.  As of the early evening of April 6, that page now reports 196 inmates and 63 staffers positive for COVID-19.  Here is where these latest BOP numbers come from:

(Inmate) 04/06/2020 - USP Atlanta (10); FCI Bennettsville; MDC Brooklyn (2); FCI Butner Low (14); FMC Butner; FCI Butner Medium I (39); USP Canaan; FMC Carswell; FCI Cumberland; FCI Danbury (22); FCI Elkton (8); FCI Forrest City Low (9); FCI Forrest City Medium (2); USP Lompoc (23); FCI Milan (3); MCC New York (4); FCI Oakdale I (22); FCI Otisville; FCI Yazoo City Low (2); FCI Yazoo City Medium (6); USP Yazoo City (14); RRC Brooklyn, NY (4); RRC Chicago, IL; RRC New Orleans, LA; RRC Phoenix, AZ; RRC St Louis, MO; RRC Wilmington, DE; FLM Guam.

(Staff) 04/06/2020 - Atlanta, GA (3); Brooklyn, NY (6); Butner, NC; Waymart (Canaan), PA; Chicago, IL (3); Danbury, CT (7); Lisbon (Elkton), OH; Forrest City, AR Low (2); Forrest City, AR Medium (2); Fort Dix, NJ; Leavenworth, KS; Lompoc, CA (5); Milan, MI; New York, NY (6); Oakdale, LA (4); Otisville, NY (3); Ray Brook, NY (6); Talladega, AL (3); Tucson, AZ; Yazoo, MS Low (2); Yazoo, MS Medium; Central Office, Washington, DC; Grand Prairie Office Complex, Grand Prairie, TX; Southeast Regional Office, Atlanta, GA.

As this list grows, so do media stories (and the first big lawsuit) about the problems created by COVID for federal prisons:

From the Wall Street Journal, "Coronavirus Inside Oakdale Prison: ‘Our Sentences Have Turned Into Death Sentences’"

From the News & Observer, "Coronavirus cases surge at Butner prison complex in NC, county official reports"

From Canton Rep, "Coronavirus: DeWine sending National Guard to Elkton federal prison east of Canton after 3 deaths"

And from ABC News, "ACLU seeks release of federal prison inmates where 5 died: A new class-action lawsuit demands the release of hundreds of high-risk inmates at a federal prison in Louisiana where the coronavirus has claimed the lives of five prisoners and infected nearly two dozen others"

April 6, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Attorney General Barr instructs federal prosecutors to consider "vulnerability to COVID-19" when litigating pre-trial detention issues

As reported in this new Politico piece, "Attorney General Bill Barr is taking another step to adjust the federal criminal justice system to the ongoing coronavirus pandemic, encouraging prosecutors to consider the dangers posed by sending a defendant to await trial in jail as the virus sweeps into such facilities."  Here is more:

Barr sent a memo Monday to top federal prosecutors across the country urging them to consider not only the risks a defendant might face in detention, but the risk inherent in increasing the jail population at a time when cases of the virus are on the increase.

“You should now consider the medical risks associated with individuals being remanded into federal custody during the COVID-19 pandemic,” Barr wrote in his two-page missive. “Even with the extensive precautions we are currently taking, each time a new person is added to a jail, it presents at least some risk to the personnel who operate that facility and to the people incarcerated therein.”

While Barr’s directive seems intended to prod prosecutors to show more flexibility in considering release, bail or home confinement pending trial, the memo is replete with caveats and warnings that defendants who pose a threat to public safety still need to be detained despite the challenges the virus is creating for jails and prisons nationwide....

The new directives from Barr come as the Justice Department is increasingly besieged with lawsuits, writs and legal motions seeking release of individual inmates as well as large classes of prisoners considered most vulnerable to serious illness or death from Covid-19.

As of Sunday, the federal Bureau of Prisons reported 138 inmates have been confirmed as infected with the virus.  Eight deaths from it have been recorded.  Barr’s memo from Friday urged prison official to make a priority of considering early releases for three prison complexes suffering serious outbreaks — those in Oakdale, La., Elkton, Ohio and Danbury, Conn.

One new suit filed Monday seeks release of prisoners at the Oakdale complex considered at highest risk from the illness.

The full text of this new two-page Barr memo is available at this link.

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

Brennan Center urges all Governors to use executive authority to "release vulnerable people who pose no risk to public safety from incarceration"

The title of this post would make plenty of sense even in a world without COVID, as vulnerable people who pose no risk to public safety really ought not be kept behind bars even in the best of times.  But, of course, right now we live in a world with COVID, and that has prompted the Brennan Center to produce this new seven-page letter, addressed to "the Honorable Governors of the fifty states," which includes these passages at the outset:

However, the almost 2 million people behind bars at the county and state level, plus the thousands of employees who work in correctional institutions, face an even greater risk of illness and death than the general public.  We write today to urge you to use your full authority as Governors to release as many people as possible from incarceration, provided they do not pose serious public safety threats, for the duration of the pandemic.  This effort should focus on people who are especially vulnerable to infection.  Specifically, we recommend you take the following steps, which we explain in depth below:

• Make full use of your clemency authority to commute the sentences of vulnerable people to time served, allowing their immediate release, or fashion other appropriate relief;

• Expand your States’ “good time credit” or equivalent programs to reduce overall incarceration;

• Work with state prosecutors to keep people who have been convicted of crimes, but not yet sentenced, out of prison for the duration of this health crisis; and

• Take steps to limit the damaging impact of criminal justice debt, including but not limited to court fees and fines.

The letter includes this partial accounting of some steps that have already been taken in some jurisdictions:

Already, some state leaders have acted to prevent the spread of Covid-19 in their correctional systems. For example, in Illinois, Governor J.B. Pritzker issued an executive order stopping the Illinois Department of Corrections from admitting new people into prison.  On March 22, Governor Jared Polis of Colorado signed an executive order ensuring detention centers reduce the number of people meeting in groups in “any confined indoor or outdoor space,” such as housing unit common areas.  In New York, Governor Andrew Cuomo issued an order on March 27th to release approximately 1,100 people from prisons and jails, specifically non-serious parole violators.  Iowa’s Department of Corrections is expediting the release of about 700 incarcerated people who have been determined eligible by the Iowa Board of Parole in addition to ensuring that those released have a safe place to stay.  And California is granting early release to 3,500 incarcerated individuals in an attempt to reduce overcrowding in state prisons during the COVID-19 pandemic.  The accelerated prison discharges apply to those who were set to be released within the next 60 days.

April 6, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Reviewing more headlines from more states about coronavirus cases among prisoners and prison staff

Just three weeks ago, starting with posts here and here, I began flagging new reports of prisoners and staffers testing positive for COVID-19 in multiple states.  Now, sadly, I suspect there is not a state in the nation that does not some have COVID cases somewhere within its correctional populations or staff.  Here is a round up of just some of the headlines I saw from some jurisdictions this morning (with a bit of extra emphasis on states I have not noted before in these round-ups):

Federal: "Inmates, Staff On Edge As COVID-19 Spreads Through Federal Prisons"

Alabama: "Alabama prison system’s COVID-19 plan anticipates widespread infection, deaths, National Guard intervention"

Florida: "‘Ticking time bomb:’ Florida acknowledges first inmate coronavirus case — and then a second"

Illinois: "Cook County Jail Now Reports 234 Inmates Have Tested Positive for Coronavirus"

Kansas: "Lansing prison announces more COVID-19 cases"

Michigan: "Why coronavirus is running rampant in Michigan prisons

New Hampshire: "Employee at NH State Prison for Men tests positive for COVID-19, officials say"

New Jersey: "Inmate says she was left ‘basically for dead’ in room at N.J. prison after getting sick amid coronavirus outbreak"

New York: "First Rikers virus-positive fatality was jailed on technicality"

North Carolina: "7 state prison inmates in NC have now tested positive for COVID-19"

Ohio: "Ohio inmate alleges COVID-19 outbreak in prison, lack of testing, threats of retaliation"

South Carolina: "Inmate at SC jail tests positive for coronavirus, 35 more in isolation, cops say"

Tennessee: "First state prison inmate tests positive"

Texas: "Texas Dept of Criminal Justice provides update on COVID-19 cases in prisons"

Virginia: "13 confirmed cases of inmates with the coronavirus in Virginia state facilities"

I remain depressingly confident that this is a woefully incomplete the COVID-19 challenges that are likely facing every jurisdiction in the US.

April 6, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Sunday, April 05, 2020

Bureau of Prisons provides update on its work to implement increased home confinement in response to COVID-19

With thanks to readers who made sure I did not miss this news on a Sunday night, the federal Bureau of Prisons has posted here a new memo titled "Update on COVID-19 and Home Confinement."  Here is the full text with emphasis and links from the original:

In response to COVID-19, the Bureau of Prisons (BOP) has instituted a comprehensive management approach that includes screening, testing, appropriate treatment, prevention, education, and infection control measures.

The BOP has increased Home Confinement by over 40% since March and is continuing to aggressively screen all potential inmates for Home Confinement. On April 3, the Attorney General enacted emergency authority under the CARES Act, to further increase Home Confinement.

Given the surge in positive cases at select sites and in response to the Attorney General's directives, the BOP has begun immediately reviewing all inmates who have COVID-19 risk factors, as described by the CDC, starting with the inmates incarcerated at FCI Oakdale, FCI Danbury, FCI Elkton and similarly-situated facilities to determine which inmates are suitable for home confinement.

Inmates do not need to apply to be considered for home confinement. Case management staff are urgently reviewing all inmates to determine which ones meet the criteria established by the Attorney General. The Department has also increased resources to review and make appropriate determinations as soon as possible.

While all inmates are being reviewed for suitability, any inmate who believes they are eligible may request to be referred to Home Confinement and provide a release plan to their Case Manager. The BOP may contact family members to gather needed information when making decisions concerning Home Confinement placement.

Since the release of Attorney General Barr's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 566 inmates on home confinement. There are currently 3,419 inmate on home confinement and 7,199 inmates in Residential Reentry Centers (RRCs). To further assist inmates in pre-release custody, the BOP has waived financial requirement to pay subsistence fees.

We are deeply concerned for the health and welfare of those inmates who are entrusted to our care, and for our staff, their families, and the communities we live and work in. It is our highest priority to continue to do everything we can to mitigate the spread of COVID-19 in our facilities.

The BOP appreciates the dedication and significant work of BOP staff in carrying out their difficult mission in the face of the public emergency. The BOP would also like to thank the Attorney General, the CDC, the Public Health Service, and our state and local community partners for their support and assistance in the BOP's COVID-19 response.

A few of many prior related posts:

April 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Latest BOP numbers with still more COVID cases at still more federal facilities

The BOP's COVID-19 Update page has been updated to reveal that, as of April 5, there are 138 federal inmates and 59 federal prison staffers who have tested positive for the coronavirus.  Here is where these latest BOP numbers come from:

(Inmate) 04/05/2020 - USP Atlanta (9); FCI Bennettsville; MDC Brooklyn; FCI Butner Low (7); FMC Butner; FCI Butner Medium I (3); USP Canaan; FMC Carswell; FCI Danbury (21); FCI Elkton (7); FCI Forrest City Low (x); FCI Forrest City Medium (x); USP Lompoc (17); FCI Milan (3); MCC New York (4); FCI Oakdale I (22); FCI Otisville; FCI Yazoo City Medium (5); FCI Yazoo City Low (2); USP Yazoo City (11); RRC Baltimore; RRC Brooklyn, NY (4); RRC Chicago, IL; RRC Dallas, TX; RRC Phoenix, AZ; RRC St Louis, MO; FLM Guam.

(Staff) 04/05/2020 - Atlanta, GA (3); Brooklyn, NY (5); Butner, NC; Waymart (Canaan), PA; Chicago, IL (3); Danbury, CT (7); Lisbon (Elkton), OH; Forrest City, AR Low (2); Forrest City, AR Medium (2); Fort Dix, NJ; Leavenworth, KS; Lompoc, CA (2); Milan, MI; New York, NY (6); Oakdale, LA (4); Otisville, NY (2); Ray Brook, NY (7); Talladega, AL (3); Tucson, AZ; Yazoo, MS Low (2); Yazoo, MS Medium; Central Office, Washington, DC; Grand Prairie Office Complex, Grand Prairie, TX; Southeast Regional Office, Atlanta, GA.

By my count, this list now shows 27 different federal prison facilities with inmates who have tested positive and 24 different communities with federal prison staff who have tested positive.  The numbers of grown steadily over the last two weeks, and I have no reason to believe they will not continue to do so.

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

What can and should we really learn from crime data in the midst of a pandemic and lockdowns?

The question in the title of this post is prompted by two new articles spotlighting declines in crime amidst our crazy times: from The Hill, "Crime rates drop across the nation amid coronavirus"; from USA Today, "Crime rates plummet amid the coronavirus pandemic, but not everyone is safer in their home."  Here are some excerpts from this second piece:

Crime rates plunged in cities and counties across the U.S. over the second half of March as the coronavirus pandemic drove millions of residents to stay inside their homes.  Police logged dramatically fewer calls for service, crime incidents and arrests in the last two weeks of March than each of the previous six weeks, a USA TODAY analysis of crime data published by 53 law enforcement agencies in two dozen states found.  The analysis is among the largest studies measuring the impact of the coronavirus on crime and policing.

Massive drops in traffic and person stops — as much as 92% in some jurisdictions — helped drive sharp declines in drug offenses and DUIs.  Thefts and residential burglaries decreased with fewer stores open and homes unoccupied, and some agencies logged fewer assaults and robberies. Bookings into each of nearly two dozen county jails monitored by the news organization fell by at least a quarter since February.

At the same time, calls for domestic disturbances and violence surged by between 10% and 30% among many police agencies that contributed data. Several also saw upticks in public nuisance complaints such as loud noise from parties.  The Baltimore Police Department, for example, received 362 loud music complaints in the last two weeks of March, nearly matching its total for all of February.

The trends reflect both a purposeful reduction in police activity and officer-initiated stops and the impact of stay-at-home orders that have closed huge swaths of Main Street and pushed people into their homes and out of traditional crime hotspots, such as bars, clubs and social events....

The study compared weekly totals between Feb. 2 and March 28.  Reporters analyzed daily calls for service and incident data published by 30 local police and sheriff’s agencies that range from those covering big cities like Dallas to small communities like St. John, Indiana.  Analysis of arrests drew from inmate logs at nearly two dozen county jails in six states, which local USA TODAY Network newspapers already track daily.

Many police departments say they are intentionally arresting fewer people to avoid the potential spread of coronavirus in jails.  Police in Delray Beach, Florida, are reducing proactive policing, such as drug busts.  In nearby Gainesville, Florida, officers are increasingly issuing summons instead of making arrests for minor offenses, Police chief inspector Jorge Campos said. “It’s not that we’re not enforcing (the law),” Campos said.  “It’s that we’re finding alternative ways of dealing with the issue rather than make physical arrests.”...

In the counties reviewed by USA TODAY, the average week included about 300 DUI bookings.  Now, it’s at about 100.  Senior citizens arrests are about a sixth of what they were in February.  Several police departments also recorded significant drops in drug, narcotics and alcohol crimes — some of the most common ways people land in jail in America, according to FBI data.  Such incidents over the second half of March fell 76% in Denver; 87% in Providence, Rhode Island; and 45% in Seattle, the epicenter of the nation’s first major coronavirus outbreak, data shows.

Drug charges often result from traffic stops....  But such stops have ground to a near halt in some regions across the country in the last two weeks.  In Cincinnati, police logged an average of 384 traffic stops per week before mid-March but 39 per day after — a 90% drop.  In Santa Monica, California, traffic stops fell from 182 a week to 14.  They fell 79% in Baltimore and 46% in Virginia Beach, Virginia.

In many regions, the traffic-stop declines dovetailed with fewer DUI incidents, which likely tanked after bars closed, Seattle police spokesman Patrick Michaud said.  Police in Virginia Beach, Montgomery County and Seattle each recorded fewer than half as many DUIs in the second half of March compared to previous weeks on average.  “There are just less crimes of opportunity when the opportunity all but disappears because everyone is spending time indoors,” said Michaud, adding that residential burglaries also have decreased in Seattle in recent weeks.

This article highlights how changes in citizen behavior (driven in part by shutdowns) are part of this new crime data story, but it also reveals how changes in police behavior also account for new criminal justice realities. I am hopeful (but not really optimistic) that the positive aspects of changes in both citizen and police behavior might persist after the pandemic passes.

Prior related post:

April 5, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

Saturday, April 04, 2020

Misguided dicta from Third Circuit panel on procedural aspects of sentence reduction motions under § 3582(c)(1)(A)

In many prior posts since the FIRST STEP Act was enacted, I have made much of the provision that allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without needing a formal motion brought and supported by the Bureau of Prisons.  Well before anybody had heard of COVID-19, this provision seemed so very significant because, if applied appropriately and robustly, it could enable many hundreds (and perhaps many thousands) of federal prisoners to have their excessive federal prison sentences reduced.

Of course, as I have highlighted in recent posts here and here, sentence reduction motions under § 3582(c)(1)(A) have become hugely important in the coronavirus world of federal sentencing.  As SDNY Chief Judge Coleen McMahon astutely stated this week in US v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) (download here), "releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19."   As noted in this post, FAMM has wisely urged tens of thousands of federal prisons to consider pursuing sentence reduction motions under § 3582(c)(1)(A) during this terrible time when any federal prison term can become a potential death sentence.

But, importantly, a procedural issue can complicate sentence reduction motions under § 3582(c)(1)(A) because the text now now provides: "the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment..."  In other words, this text provides that a sentence reduction motion can be acted upon by the court (1) immediately if brought by BOP, or (2) as soon as a defendant requests such a motion and that request is formally/finally denied by BOP or 30 days has lapsed, "whichever is earlier."  Because the Director of the Bureau of Prisons rarely brings motions on behalf of prisoners and because BOP's administrative process for reviewing requests is historically quite slow, this provision has often functionally meant that courts would consider these motions 30 days after a BOP request is made by the defendant.

Under normal circumstances, this procedural provision struck me as a reasonable way to give the Bureau of Prisons a first opportunity to consider supporting a sentence reduction motion before the defendant heads to court. (That said, I have heard various ugly reports about the BOP treating an inmate poorly in various ugly ways after he has requested  a sentence reduction motion).  But in a COVID-19 word in which every day brings increasing positive cases and deaths among federal inmates and staff, waiting 30 days to rule on a compelling sentence reduction motion under § 3582(c)(1)(A) could literally have deadly consequences for an inmate and others he comes into contact with.  (It was only roughly 30 days ago that the US had its first COVID death, we could be over 10,000 US deaths by the end of this weekend.)   Consequently, I was not surprised to see, in US v. Perez, No. 17 Cr. 513-3 (AT) (SDNY Apr. 1, 2020) (download here), a federal judge waive the "30-day lapsing" requirement based on the determination that, for the defendant, "remaining incarcerated for even a few weeks increases the risk that he will contract COVID-19," and so "requiring exhaustion ... would be directly contrary to the purpose of identifying and releasing individuals whose circumstances are 'extraordinary and compelling'."  

This extended discussion is a prelude to noting a troubling opinion handed down by a Third Circuit panel in United States v. Raia, No. 20-1033 (3d Cir. Apr. 2, 2020) (available here).  This case involved a 68-year-old New Jersey politician given a three-month sentence who reported to a federal prison on March 3 while the government was pursuing an appeal of his sentence as to low.  With his appeal pending, the defendant first "asked BOP to move for compassionate release on his behalf. But before BOP responded, and before thirty days passed, Raia filed his own motion with the District Court for compassionate release given the present pandemic caused by COVID-19. The district court dismissed the motion because it decided the "pending appeal divested it of jurisdiction," but it also indicated it would grant the motion if it could.

In the Third Circuit, Raia did not appeal this order but instead "filed a motion asking this Court to decide his compassionate release motion [or] to return jurisdiction to the District Court by dismissing the government’s appeal without prejudice [under FRAP 3(a)(2)." In response, the Third Circuit panel starts on solid ground: "We cannot decide Raia’s compassionate-release motion in the first instance. Section 3582’s text requires those motions to be addressed to the sentencing court." That strikes me as right not only as a matter of statutory text, but also as a matter of sound policy: district motions for sentence reductions ought to be addressed in the first instance by sentencing courts, not appeals courts. Continuing to address points raised by Raia, the panel then says (cites and quote removed): "Nor can we dismiss the government’s appeal under Rule 3(a)(2). Rule 3(a)(2) dismissal is a sanction for failing to comply with procedural rules. Here, there is nothing the government has failed to do."

Having addressed are rejected claims by the appellant, things go sideways as the Third Circuit panel says the following (which I am calling dicta it does not respond to claims actually brought by the litigant):

We could, however, remand the case to the District Court while retaining jurisdiction over the government’s appeal under Rule 12.1.  That would allow the District Court to consider Raia’s compassionate-release request in the first instance.

But any remand would be futile.  As noted, Raia failed to comply with § 3582(c)(1)(A)’s exhaustion requirement: BOP has not had thirty days to consider Raia’s request to move for compassionate release on his behalf, nor has Raia administratively exhausted any adverse decision by BOP.  Although the District Court’s indicative ruling did not mention the exhaustion requirement, it presents a glaring roadblock foreclosing compassionate release at this point.

Accordingly, since Rule 3(a)(2) is inapt and since remanding the matter under Rule 12.1 would be futile, we will deny Raia’s motion outright.

This "futile" language here creates the problematic impression that "30-day lapsing/exhaustion" language in 18 U.S.C. § 3582(c)(1)(A) is tantamount to a jurisdictional bar to the granting of a sentence reduction motion.  But the language and structure of this requirement makes it appear much more like what the Supreme Court calls "nonjurisdictional claim-processing rules."  Fort Bend County v. Davis, No. 18-525 (S. Ct. June 3, 2019) (available here).  With COVID-19 making every day matter, this is a critically important distinction because claim-processing rules can be forfeited if not raised by a party and might be subject to equitable exceptions.  In other words, if and when the "30-day lapsing/exhaustion" language is properly understood by courts as a claim-processing rules, then courts can (1) ask federal prosecutors if they are willing to waive/forfeit the requirement in a particular case, and courts may be able (2) on their own, as in the Perez case, to decide that the requirement need not be meet given the equities of a particular case.

I hope that counsel might be seeking reconsideration or even an emergency rehearing en banc in Raia.  Because it is not at all clear that a remand would be futile, and especially because the Third Circuit panel here spun off some misguided dicta on an issue that appears not to have even been briefed, this portion of the opinion ought to be retracted at least until a court considers these (now life-and-death) issues with the assistance of full briefing.

UPDATE: I just noticed that the same panel that decided Raia also handed down last week a more defendant-friendly COVID opinion in United States v. Roeder, No. 20-1682 (3d Cir. Apr. 1, 2020) (available here).  Here is how this (unpublished) opinion starts and ends:

Calvin Roeder filed an emergency appeal seeking review of the District Court’s denial of his motion to postpone his self-surrender date in light of the COVID-19 pandemic. We reversed the District Court’s denial on March 29, 2020. We now provide the reasons for our order....

Under ordinary circumstances, it would be our preference to vacate the District Court’s order and permit it to provide substantive conclusions concerning the merits of Roeder’s motion.  These are not, however, ordinary times.  In light of the exigent circumstances surrounding the COVID-19 pandemic and the timing of our ruling (less than 24 hours before Roeder’s scheduled surrender date), we were compelled to grant relief and reverse the District Court’s order — even though the existence of a widespread health risk is not, without more, a sufficient reason for every individual subject to a properly imposed federal sentence of imprisonment to avoid or substantially delay reporting for that sentence.
While the COVID-19 pandemic has given rise to exceptional and exigent circumstances that require the prompt attention of the courts, it is imperative that they continue to carefully and impartially apply the proper legal standards that govern each individual’s particular request for relief.  If, in the future, Roeder seeks an additional modification of his self-surrender date, we expect that the District Court will provide an adequately reasoned decision so that, if an appeal follows, we may engage in a thorough appellate review.

April 4, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, April 03, 2020

Attorney General Barr issues new memo calling for BOP to "move with dispatch" to get vulnerable inmates out of federal prison COVID hot-spots

As reported in this new Politico piece, headlined "Barr to speed releases at federal prisons hard hit by virus," it appears that the US Attorney General is coming to understand the dire situation being created by COVID-19 in federal prisons. Here are tonight's important new developments

Attorney General Bill Barr is ordering federal prison officials to intensify their efforts to release “vulnerable” inmates at three prison complexes that are struggling to contain major outbreaks of the coronavirus.

Barr said he’s seeking to speed the process of sending selected inmates at prisons in Danbury, Conn., Oakdale, La., and Elkton, Ohio to home confinement because of the danger serious levels of infection at those facilities pose to elderly prisoners and those with pre-existing health conditions.

“We are experiencing significant levels of infection at several of our facilities,” Barr said in the new memo dated Friday and obtained by POLITICO Friday night. “We have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions.”

Barr also said he was exercising for the first time expanded release authority Congress granted him in the stimulus bill known as the Cares Act that was signed into law by President Donald Trump last Friday.

Under previous law, federal prisoners were only eligible for home confinement after they’d completed 90 percent of their sentences. However, the new legislation allows for earlier releases if the attorney general formally declares an emergency, which he did Friday.

“The CARES Act now authorizes me to expand the cohort of inmates who can be considered for home release upon my finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons,” Barr wrote. “I hereby make that finding and direct that … you give priority in implementing these new standards to the most vulnerable inmates at the most affected facilities.”...

A total of 522 inmates were moved to home confinement following Barr’s directive last week, according to the Bureau of Prisons.

Barr’s public comments supporting early releases for some inmates seemed to be in tension with remarks Trump made Thursday, where he lashed out at state and local officials for endangering the public by releasing convicted criminals and said he might even step in to try to halt such releases....

Barr's new directive stresses that public safety concerns must be taken into account when considering whom to release. "While we have a solemn obligation to protect the people in BOP custody, we also have an obligation to protect the public," the attorney general wrote. "That means we cannot simply release prison populations en masse into the streets. Doing so would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses."

While Barr emphasized that early releases must be assessed on a case-by-case basis, he said that some precautions normally taken in such situations could be waived in the current crisis, such as GPS monitoring for those being sent home.

A few of many prior related posts:

April 3, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Latest BOP numbers with ever growing number of COVID cases (and deaths) in ever growing number of federal facilities

Last Friday (March 27) as detailed in this post, the BOP's COVID-19 Update page was reporting "only" 14 federal inmates and 13 federal prison staffers had tested positive for COVID-19.  This Friday (April 3), BOP has updated its cases reporting that 91 federal inmates and 50 federal prison staffers have tested positive.  Here is where these latest BOP numbers come from:

(Inmate) 4/03/2020 - USP Atlanta (5); MDC Brooklyn; FCI Butner Low (7); FMC Butner; FCI Butner Medium I (3); USP Canaan; FCI Danbury (20); FCI Elkton (2); FCI Forrest City Low (2); USP Lompoc (14); MCC New York (4); FCI Oakdale I (18); FCI Otisville; FCI Yazoo City Medium (4); FCI Yazoo City Low; RRC Brooklyn, NY (4); RRC Janesville, WI; RRC Phoenix, AZ; FLM Guam.

(Staff) 4/03/2020 - Atlanta, GA (3); Brooklyn, NY (4); Butner, NC; Chicago, IL (3); Danbury, CT (6); Lisbon (Elkton), OH; Forrest City, AR; Leavenworth, KS (no inmate contact); Lompoc, CA (2); Milan, MI; New York, NY (5); Oakdale, LA (4); Otisville, NY; Ray Brook, NY (6); Talladega, AL (3); Tucson, AZ; Yazoo, MS (2); Central Office, Washington, DC; Grand Prairie Office Complex, Grand Prairie, TX; Southeast Regional Office, Atlanta, GA.

By my count, this list shows 19 different federal prison facilities with inmates who have tested positive and 20 different communities with federal prison staff who have tested positive.  And, as I have said before, there is every reason to fear that these numbers represent the tip of big iceberg.  Plus, as news reports reveal, at least seven federal inmates have dies from COVID-19:

April 3, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Massachusetts Supreme Judicial Court issues lengthy opinion to address COVID issues in state jails and prisons

The Massachusetts Supreme Judicial Court this week heard argument on an emergency petition from defense lawyers seeking a reduction of prisoners to limit outbreaks of the coronavirus in the state’s prison and jails. This afternoon, the Mass SJC issued this 45-page opinion, and here are excepts from how it gets started:

The petitioners, the Committee for Public Counsel Services (CPCS) and the Massachusetts Association of Criminal Defense Lawyers (MACDL), bring our focus to the situation with respect to COVID-19 confronting individuals who are detained in jails and houses of correction pending trial, and individuals who have been convicted and are serving a sentence of incarceration in the Commonwealth.  To allow the physical separation of individuals recommended by the CDC, the petitioners seek the release to the community of as many individuals as possible as expeditiously as possible, indeed, on the day of argument in this case, according to one of them.  They offer a number of different legal theories under which a broad-scale release might be accomplished.

We conclude that the risks inherent in the COVID-19 pandemic constitute a changed circumstance within the meaning of G. L. c. 276, § 58, tenth par., and the provisions of G. L. c. 276, § 557.  To decrease exposure to COVID-19 within correctional institutions, any individual who is not being held without bail under G. L. c. 276, § 58A, and who has not been charged with an excluded offense (i.e., a violent or serious offense enumerated in Appendix A to this opinion) is entitled to a rebuttable presumption of release.  The individual shall be ordered released pending trial on his or her own recognizance, without surety, unless an unreasonable danger to the community would result, or the individual presents a very high risk of flight....

With respect to those individuals who are currently serving sentences of incarceration, absent a finding of a constitutional violation, our superintendence power is limited. Those who have been serving sentences for less than sixty days may move to have their sentences revised or revoked under Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016) (Rule 29).  Those who are pursuing appellate proceedings or a motion for a new trial may seek a stay of execution of sentence...

Where there is no constitutional violation, however, art. 30 of the Massachusetts Declaration of Rights precludes the judiciary from using its authority under Rule 29 to revise and revoke sentences in a manner that would usurp the authority of the executive branch.  Removing any limitation on the time in which a motion to revise and revoke a sentence may be brought, however, would do precisely that.  See Commonwealth v. McCulloch, 450 Mass. 483, 488 (2008), quoting Commonwealth v. McGuinness, 421 Mass. 472, 476 n.4 (1995) ("A judge may not interfere with the executive function of the parole board by using postconviction evidence in an order to revise and revoke").

To afford relief to as many incarcerated individuals as possible, the DOC and the parole board are urged to work with the special master to expedite parole hearings, to expedite the issuance of parole permits to those who have been granted parole, to determine which individuals nearing completion of their sentences could be released on time served, and to identify other classes of inmates who might be able to be released by agreement of the parties, as well as expediting petitions for compassionate release.

As the petitioners have argued, and the respondents agree, if the virus becomes widespread within correctional facilities in the Commonwealth, there could be questions of violations of the Eighth and Fourteenth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights; nonetheless, at this time, the petitioners themselves clarified in their reply brief and at oral argument that they are not raising such claims.

April 3, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Pleased to see growing number of COVID-influenced grants of sentence reductions using § 3582(c)(1)(A)

As highlighted in this post from just two days ago, earlier this week I had only found a handful of court decisions granting sentence reductions using § 3582(c)(1)(A) because of the "extraordinary and compelling" public health crisis created by COVID-19.  But, as the reports of positive COVID-19 cases and even deaths grow in the federal prisons system, so too are the the COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).  Here are some sentence reduction orders I found on Westlaw and via emails from just the past few days:

United States v. Jepsen, No. 3:19-cv-00073(VLB), 2020 WL 1640232 (D. Conn. Apr. 1, 2020) ("Mr. Jepsen is in the unique position of having less than eight weeks left to serve on his sentence, he is immunocompromised and suffers from multiple chronic conditions that are in flux and predispose him to potentially lethal complications if he contracts COVID-19, and the Government consents to his release.  The Court finds that the totality of the circumstances specific to Mr. Jepsen constitute 'extraordinary and compelling'reasons to grant compassionate release.")

United States v. Williams, No. 3:04cr95/MCR (ND Fla. Apr. 1, 2020) (download here) ("Williams' cardiovascular and renal conditions compromise his immune system, which, taken with his advanced age, put him at significant risk for even more severe and life threatening illness should he be exposed to COVID-19 while incarcerated.... Based on these facts, the Court finds that Williams’ deterioration in physical health is sufficiently serious to satisfy the medical criteria for a reduction in sentence."): Download US v. Andre Williams (ND FL 4.1.20)

United States v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) (download here) ("Releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19"): Download Resnick covid order  (Now also at 2020 WL 1651508).

United States v. Brannan, No. 4:15-CR-80-01 (SD Tx. Apr. 2, 2020) (download here) (though not reflected in order, emergency motion was granted on same day of filing for prisoner who had served only 9 months of a 36-month sentence for fraud at FCI Oakdale and had not exhausted BOP remedies): Download 15cr80 Order for Compassionate Release

United States v. Colvin, No. 3:19cr179 (JBA), 2020 WL 1613943 (D. Conn. Apr. 2, 2020) ("She has diabetes, a 'serious ... medical condition,' which substantially increases her risk of severe illness if she contracts COVID-19.... Defendant is 'unable to provide self-care within the environment of' FDC Philadelphia in light of the ongoing and growing COVID-19 pandemic because she is unable to practice effective social distancing and hygiene to minimize her risk of exposure, and if she did develop complications, she would be unable to access her team of doctors at Bridgeport Hospital. In light of the expectation that the COVID-19 pandemic will continue to grow and spread over the next several weeks, the Court concludes that the risks faced by Defendant will be minimized by her immediate release to home, where she will quarantine herself.")

United States v. Foster, No. 1:14-cr-324-02 (MD Pa. Apr. 3, 2020) (download here) ("The circumstances faced by our prison system during this highly contagious, potentially fatal global pandemic are unprecedented. It is no stretch to call this environment 'extraordinary and compelling,' and we well believe that, should we not reduce Defendant’s sentence, Defendant has a high likelihood of contracting COVID-19 from which he would “not expected to recover.” USSG § 1B1.13. No rationale is more compelling or extraordinary."): Download MDPa Foster JonesJ MemOrd GrantRIS e040320

As I have said before, I am fairly confident that this list does not represent all, and I hope it does not even capture most, of the sentence reductions granted by federal district courts in the last few days.  Readers are encouraged to use the comments or to send me emails to supplement this list as new ruling are handed down or become available.

Prior recent related posts:

UPDATE: Here are a few more sentence reductions granted by federal district courts in the last few days that just showed up online or were sent my way:

United States v. Edwards, No. 6:17-cr-00003, 2020 WL 1650406 (D. Conn. Apr. 2, 2020) ("Defendant presented a strong case for compassionate release on account of his incurable brain cancer even before the outbreak of the COVID-19 pandemic. But Defendant's request was further substantiated with a particularized showing that he is susceptible to contracting COVID-19, and that he is at high risk if he contracts it. The Court finds that Defendant has demonstrated an extraordinary and compelling reason for his compassionate release.")

United States v. Zukerman, No. 16 Cr. 194 (AT) (SDNY Apr. 3, 2020) (download here) ("First, the Court holds that Zukerman’s exhaustion of the administrative process can be waived in light of the extraordinary threat posed — in his unique circumstances — by the COVID-19 pandemic.  Second, although the sentence imposed on Zukerman was wholly warranted, the Court holds that the threat posed by COVID-19, in light of his age and medical status, constitutes an extraordinary and compelling reason to modify Zukerman’s sentence.") Download Order granting Zukerman reqest for compassionate release

April 3, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tracking ever growing number of prisoner and prison staff deaths due to COVID-19

Exactly a month ago, via this post, I first flagged how the looming threat of the coronavirus could be especially worrisome for incarcerated populations and all the workers at jails and prisons.  Two weeks ago, starting with posts here and here, I began flagging new reports of prisoners and staffers testing positive for COVID-19 in multiple states.  Now, sadly, the predictable next stage of this pubic health tragedy has arrived in the form of multiple reports from multiple location of prisoners and staff dying from COVID-19:

 

Federal: "4 Inmates Dead from Coronavirus as Outbreak Spirals at Louisiana Federal Prison"

Federal: "First inmate death related to coronavirus at eastern Ohio prison"

 

California: "Sheriff's deputy dies from coronavirus, got infected by inmate"

Colorado: "El Paso County Deputy Becomes Colorado’s Youngest Coronavirus Death"

Georgia: "Lee State Prison inmate dies of Covid-19"

Illinois: "1st Illinois prison inmate dies of COVID-19, health officials say"

Massachusetts; "First Massachusetts Inmate Dies From COVID-19"

Michigan: "First Michigan prison employee dies from coronavirus, 24 others test positive"

New Jersey: "Hudson County jail correctional officer, 56, dies from coronavirus, police union says"

New York: "Sing Sing Prison Inmate With Coronavirus Dies As Defense Lawyers Demand Release Of Vulnerable Prisoners"

 

Sadly, I am depressingly confident that this is an incomplete list of staff and inmates already felled by COVID-19 and that in the weeks ahead it will be impossible to do a round-up like this without including just about every jurisdiction in the US.

April 3, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Thursday, April 02, 2020

Prominent federal defendants getting out of prison or delaying entry as a consequence of COVID-19

Here are some notable headlines and basics about some notable federal defendants who have convinced judges, quite sensibly, to allow them to avoid the COVID petri dishes that are federal prisons:

"Tekashi 6ix9ine to be ‘immediately’ released from prison amid coronavirus":

A Manhattan federal court judge has ordered rapper Tekashi 6ix9ine released from federal custody and into home confinement amid the coronavirus outbreak in New York, according to court papers unsealed Thursday.

The order by Judge Paul Engelmayer said the rapper-turned-snitch should be released “immediately” from the private prison in Queens where he is being held in the custody of US Marshals.

The former rapper will serve his first four months in “home incarceration” at an address approved by his probation officer, Engelmayer wrote. He’ll be tracked by GPS. “The defendant must remain at his residence except to seek any necessary medical treatment or to visit his attorney, in each instance with prior notice and approval by the Probation Department,” Engelmayer wrote.

"Former Rep. Chris Collins' prison term delayed due to coronavirus"

A federal judge on Thursday granted former New York Rep. Chris Collins's request to delay the start of his prison sentence for securities fraud by two months after Collins cited concerns about the coronavirus pandemic and its threat to inmates. Collins, a Western New York Republican who had been scheduled to report to prison for a 26-month sentence on April 21, is now set to begin his sentence June 23.

Collins's request came as many inmates and those facing prison sentences have asked to be released from confinement or to delay their sentences out of fear that incarceration creates particularly ripe conditions for the rapid spread of the virus. Those requests have yielded mixed results.

Attorneys for the 69-year-old former congressman, who pleaded guilty in October 2019 to one count of conspiracy to commit securities fraud and one count of making a false statement, had told the court they believe he is in a high-risk category to contract the virus, due to his age and "additional" factors.

Kudos to these judges for making the smart public health decision to keep these folks out of federal prisons for now. I hope a whole lot of less prominent federal defendants get similar treatment in the days and weeks ahead.

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

Death toll from COVID-19 in federal Oakdale facility now already officially up to four ... UPDATE: And a death now in federal prison in Ohio

A little more than a week ago, the federal Bureau of Prisons was touting that there were no federal prisoners or staff who had yet tested positive for the coronavirus.  Now, as detailed in this Reuters article, headlined "Death Toll From COVID-19 at Oakdale Prison in Louisiana Continues to Climb," we already have four confirmed deaths in just one federal facility:

The death toll from COVID-19 at a U.S. prison in Oakdale, Louisiana, has continued climbing, with a fourth inmate now dead, the Bureau of Prisons said on Thursday, as it grappled with outbreaks at other penal institutions....

Federal Correctional Institution 1, a low-security facility holding about 980 inmates that is one of several facilities comprising the prison in Oakdale in south-central Louisiana, is so far the hardest hit in the nationwide system.  Eighteen inmates, as well as 17 staff members now have COVID-19, said Ronald Morris, the president of the American Federation of Government Employees Local 1007 union.  Dozens more are isolation with symptoms, he added.

As of Wednesday, there were 57 federal inmates with COVID-19 across the nation, the Bureau of Prisons said. In addition to Oakdale, other hard-hit prisons include one in Butner, North Carolina with nine inmates sick. A low-security federal prison in Danbury, Connecticut, also has nine inmates sick with COVID-19.

The bureau on Thursday identified the third inmate who died of COVID-19 at Oakdale as James Wilson, 57, who went into respiratory failure on Monday.  He was taken to a hospital and placed on a ventilator the next day, where he died on Wednesday.

The other two inmate COVID-19 fatalities were younger than Wilson. Nicholas Rodriguez, 43, died on Wednesday.  Patrick Jones, the first reported federal inmate to succumb to the COVID-19, died on Saturday at age 49.

The bureau did not yet have any further details on the fourth inmate.

I cannot help but note that it seems, to date, the COVID crisis is hitting low-security prisons particularly hard and that all the reported death involve persons well below the ages thought to be most at risk for dying from this terrible virus.  This suggests that all sorts of low-risk offenders in the federal prison system are now especially vulnerable to being subject to a functional death sentence. 

I will also note that I am starting to receive calls an emails from former prisoners and from family members of current prisoners reporting deep suspicion with how BOP is handling and reporting on all these challenging COVID realities. As is depressingly the case so often in this arena, I an at once unsurprised and deeply saddened by how our nation treats the historic number of persons it decides to cage.

UPDATE: This local article, headlined "First inmate death related to coronavirus at eastern Ohio prison," reports on another federal inmate death from a distinct federal prison:

Inmate Woodrow Taylor reported to the Health Services Department at the Federal Satellite Low Institution (FSL) Elkton, in Lisbon, Ohio.   Mr. Taylor was evaluated by institutional medical staff and transported to a local hospital for further treatment and evaluation due to the inability to maintain a sufficient oxygen saturation and shortness of breath. 

Mr. Taylor’s condition quickly declined and he was placed on a ventilator. On Thursday, April 2, 2020, Mr. Taylor, who had long-term, pre-existing medical conditions, which the CDC lists as risk factors for developing more severe COVID-19 disease, was pronounced dead by hospital staff. While at the local hospital, Mr. Taylor was tested for COVID19; however, test results were still pending at the time of his death. 

Mr. Taylor was a 53 year-old male serving a 60 month sentence for Conspiracy to Possess with Intent to Distribute 500 grams or more of Cocaine. He had been in custody at FSL Elkton since April 29, 2019. 

Meanwhile, the BOP's COVID-19 Update page now reports 75 federal inmates and 39 federal prison staffers have tested positive for COVID-19.  Here is where these latest BOP numbers come from:

(Inmate) 4/02/2020 - USP Atlanta (5); FMC Butner (10); USP Canaan; FCI Danbury (15); FCI Elkton (2); FCC Forrest City (2); FCC Lompoc (12); MCC New York (4); FCC Oakdale (12); FCI Otisville; FCC Yazoo City (4); RRC Brooklyn, NY (4); RRC Janesville, WI; RRC Phoenix, AZ; FLM Guam

(Staff) 4/02/2020 - Atlanta, GA (3); Brooklyn, NY (4); Butner, NC; Chicago, IL (3); Danbury, CT (4); Leavenworth, KS (no inmate contact); Lompoc, CA; Milan, MI; New York, NY (5); Oakdale, LA (4); Otisville, NY; Ray Brook, NY (2); Talladega, AL (2); Tucson, AZ; Yazoo, MS (3); Central Office, Washington, DC; Grand Prairie, TX; Southeast Regional Office, Atlanta, GA

April 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (4)

Wednesday, April 01, 2020

Federal Defenders write to AG Barr to detail concerns with BOP/DOJ response to COVID-19

I just learned of this new letter from Federal Public & Community Defenders to Attorney General William Barr.  I recommend the 11-page letter in full, and here is how it gets started (with footnotes omitted):

On March 19, 2020, we wrote to you to warn that our jails and prisons were in “grave and imminent danger.” We urged you to take “immediate and decisive action” to address the impending spread of COVID-19 among incarcerated persons. That same day, the Bureau of Prisons (BOP) confirmed the first presumed-positive COVID-19 cases in the federal prison system.

Despite our warnings—and those of Congress, policy groups, and public health and legal expert s— the Department of Justice (DOJ) has failed to respond appropriately to this global pandemic.  , DOJ’s response rests on its view that that “many inmates will be safer in BOP facilities.” DOJ has relied on this false premise to oppose release in a wide range of cases, and as the foundation of policies such as your March 26, 2020, “Memorandum for Director of Bureau Prisons.” (“March 26 Policy”).  That policy fails to take advantage of DOJ’s existing tools to transfer vulnerable and low-risk inmates quickly to home confinement. Instead, it erects a complex set of procedural and logistical hurdles to home confinement.  These hurdles are largely arbitrary, bear little nexus to the current public health crisis, and will disparately harm persons of color. This inadequate response to COVID-19 continues to endanger the individuals who live and work in BOP facilities.

You now have the authority, under the CARES Act, to allow BOP to transfer many more people to the relative safety of home confinement.  But you have not made the finding necessary to allow BOP to do so.  Instead, yesterday BOP announced a new plan (“Phase 5”) that amounts to no more than a 14-day lockdown for all federal prisoners.10 It is certain to fail.  The real problem — as public health experts agree — is that there are simply too many people in the prisons.  The only rational, humane response to this crisis is to greatly reduce the prison population. Locking people down in institutions with inadequate medical care and poor sanitation is not the answer.

This past Saturday, March 28, 2020, marked a grim milestone. Patrick Estell Jones, 49, became the first individual in BOP custody to die of COVID-19.  He was serving a sentence in a low-security facility for a non-violent crack cocaine offense.  His death will surely not be the last. The day after Mr. Jones’s death, the Washington Post reported that 30 more inmates and staff at Oakdale had tested positive for COVID-19.  The numbers of positive-COVID-19 cases in BOP are beginning to exponentially escalate: on March 27, 2020, BOP’s website reported a total of 18 COVID-19 positive inmates and staff; today, it reports 59 confirmed cases.  There are increasing reports of positive diagnoses of individuals detained in federal pretrial custody by the United States Marshals Service.

These diagnoses are “almost certainly an undercount.”  Many in the federal prison population are at grave risk of severe illness or death.  There are approximately 10,000 individuals over the age of 60 presently in federal custody, and one third of all individuals in BOP custody have preexisting conditions.  But there are measures that DOJ can take now to avert catastrophe.  We urge you to immediately reduce the number of people entering federal detention and aggressively transfer or release individuals who are already incarcerated into the community.

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

No joke: BOP on April 1 reporting ever growing number of COVID cases in ever growing number of federal facilities

Just this past Friday (March 27) as detailed in this post, the BOP's COVID-19 Update page was reporting "only" 14 federal inmates and 13 federal prison staffers had tested positive for COVID-19.  Now BOP has updated its cases as of April 1, and it now reports that 57 federal inmates and 37 federal prison staffers have tested positive.  Here is where these latest BOP numbers come from:

(Inmate) 4/1/2020 - MDC Brooklyn; FCC Oakdale (11); USP Atlanta (4); MCC New York (4); FMC Butner (9); FCI Otisville; FCI Danbury (9); FCC Lompoc (6); FCI Elkton (2); USP Canaan, PA; Forrest City, AK (2); Yazoo City, MS; RRC Phoenix, AZ; RRC Brooklyn, NY (4); RRC Janesville, WI.

(Staff) 4/1/2020 - Grand Prairie, TX; Leavenworth, KS (no inmate contact); Yazoo, MS (3); Atlanta, GA (3); Danbury, CT (4); Butner, NC; Ray Brook, NY (2); New York, NY (5); Chicago, IL (2); Brooklyn, NY (4); Oakdale, LA (4); Lompoc, CA; Otisville, NY; Talladega, AL; Tucson, AZ; Milan, MI; Southeast Regional Office Atlanta, GA; Central Office, Washington, DC

By my count, this list shows 15 different federal prison facilities with inmates who have tested positive and 18 different communities with federal prison staff who have tested positive.  And, of course, there is every reason to fear that these numbers represent the tip of worrisomely big iceberg.

A few of many prior related posts:

UPDATE: And now, as reported in this NPR piece, BOP is reporting that there have already been three COVID-related deaths at just the FCC Oakdale facility:

A third person held at the federal prison in Oakdale, La., has died of COVID-19, according to Federal Bureau of Prisons officials. The person's name was not released while authorities notified the person's next of kin.

The second patient to die, Nicholas Rodriquez, 43, became ill on March 25 and had a high temperature and a rapid heartbeat, BOP officials said. He was transported to a local hospital that day, and tested positive for COVID-19. Rodriquez was placed on a ventilator on March 27, after his condition deteriorated. He died on April 1.

BOP officials said Rodriquez had long-term, preexisting medical conditions which the Centers for Disease Control and Prevention lists as risk factors for developing more severe COVID-19 disease. Rodriguez was serving a 188-month sentence on drug charges, and had been at the Oakdale facility for about a year....

The Bureau of Prisons told The Lens that it has stopped testing for the virus at the facility because the outbreak is so widespread. Instead, anyone with symptoms is assumed to have COVID-19. A spokesperson for the bureau told the news outlet that the move is intended "to conserve valuable testing resources," and added that the bureau had no plans to release nationwide testing figures.

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

A few (too few) recent COVID-influenced grants of sentence reductions using § 3582(c)(1)(A)

As regular readers know, in many prior posts since enactment of the FIRST STEP Act, I have made much of the provision that allows 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.  I have long considered this provision a big deal because I have long thought that, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

A few weeks ago before the COVID-19 outbreak became the most urgent of stories, I was starting to notice on Westlaw a growing number of rulings granting sentencing reductions using 3582(c)(1)(A).  I listed some of these pre-COVID positive cases in this March 23 post.  While writing that prior post, I was thinking it might be only a matter of days before a lot more courts granted a lot more sentence reductions using § 3582(c)(1)(A) because of the "extraordinary and compelling" public health crisis created by COVID-19.  Somewhat disappointingly, I have only so far been able to locate a handful of recent COVID-influenced grants of sentence reductions using § 3582(c)(1)(A):

United States v. Campagna, No. 16 Cr. 78-01 (LGS), 2020 WL 1489829 (SDNY Mar. 27, 2020) ("Defendant’s compromised immune system, taken in concert with the COVID-19 public health crisis, constitutes an extraordinary and compelling reason to modify to Defendant’s sentence on the grounds that he is suffering from a serious medical condition that substantially diminishes his ability to provide self-care within the environment of the RCC.")

United States v. Powell, No. No. 1:94-cr-00316 (ESH) (DDC Mar. 28, 2020) (available here) ("Defendant is 55-years-old, suffers from several respiratory problems (including sleep apnea and asthma), and has only 3 months remaining on his 262-month sentence. The government does not oppose the relief sought. In addition, the Court finds that requiring defendant to first seek relief through the Bureau of Prisons’ administrative process would be futile because defendant has an open misdemeanor case in Superior Court which the Bureau of Prisons has advised defense counsel renders defendant ineligible for home confinement.")

United States v. Muniz, No. 4:09-CR-0199-1, 2020 WL 1540325 (SD Tex. Mar. 30, 2020) ("Because Defendant is at high-risk for severe illness from COVID-19 and because inmates in detention facilities are particularly vulnerable to infection, the Court finds that Defendant has demonstrated an extraordinary and compelling reason for compassionate release.")

United States v. Gonzales, No. 2:18-CR-0232-TOR-15, 2020 WL 1536155 (Ed Wash. Mar. 31, 2020) ("Defendant is the most susceptible to the devastating effects of COVID-19. She is in the most susceptible age category (over 60 years of age) and her COPD and emphysema make her particularly vulnerable.... The Court was aware of Defendant’s underlying medical condition and took that into consideration at the time of sentencing. In normal times, Defendant’s condition would be manageable. These are not normal times, however.")

I am fairly confident that this list does not represent all, and I hope it does not even capture most, of the sentence reductions granted by federal district courts in the past week or so.  Readers are encouraged to use the comments or send me emails to supplement this list as new ruling are handed down or become available.

Prior recent related posts:

UPDATE: I am pleased to report that I just received from a helpful reader a copy of a new 24-page opinion handed down just today in United States v. Rodriguez, No. 2:03-cr-00271-AB-1 (ED Pa. Apr. 1, 2020) (available for download below). The start of this new opinion highlights why it is a must-read for anyone working on 3582(c)(1)(A) motions these days:

We are in the midst of an unprecedented pandemic. COVID-19 has paralyzed the entire world. The disease has spread exponentially, shutting down schools, jobs, professional sports seasons, and life as we know it. It may kill 200,000 Americans and infect millions more. At this point, there is no approved cure, treatment, or vaccine to prevent it. People with pre- existing medical conditions — like petitioner Jeremy Rodriguez — face a particularly high risk of dying or suffering severe health effects should they contract the disease.

Mr. Rodriguez is an inmate at the federal detention center in Elkton, Ohio.  He is in year seventeen of a twenty-year, mandatory-minimum sentence for drug distribution and unlawful firearm possession, and is one year away from becoming eligible for home confinement. Mr. Rodriguez has diabetes, high blood pressure, and liver abnormalities. He has shown significant rehabilitation in prison, earning his GED and bettering himself with numerous classes. He moves for a reduction of his prison sentence and immediate release under the “compassionate release” statute, 18 U.S.C. § 3582(c)(1)(A).  He argues that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. §3582(c)(1)(A)(i).

For Mr. Rodriguez, nothing could be more extraordinary and compelling than this pandemic. Early research shows that diabetes patients, like Mr. Rodriguez, have mortality rates that are more than twice as high as overall mortality rates.  One recent report revealed: “Among 784 patients with diabetes, half were hospitalized, including 148 (18.8%) in intensive care.  That compares with 2.2% of those with no underlying conditions needing ICU treatment.”

These statistics — which focus on the non-prison population — become even more concerning when considered in the prison context. Prisons are tinderboxes for infectious disease. The question whether the government can protect inmates from COVID-19 is being answered every day, as outbreaks appear in new facilities. Two inmates have already tested positive for COVID-19 in the federal detention center in Elkton — the place of Rodriguez’s incarceration.  After examining the law, holding oral argument, and evaluating all the evidence that has been presented, I reach the inescapable conclusion that Mr. Rodriguez must be granted “compassionate release.”

Download Rodriguez Memorandum

ANOTHER UPDATE: I am pleased to report that I just received from another helpful reader another new opinion handed down just today in United States v. Perez, No. 17 Cr. 513-3 (AT) (SDNY Apr. 1, 2020) (available for download below).  This opinion includes an important discussion of the need to waiver the exhaustion/30-day requirement for a motion for sentence reduction. Here are excerpts:

On March 26, 2020, Perez submitted to the BOP his application for a sentence modification. ECF No. 96 at 4. To date, the BOP has not acted on that request. The Court holds, however, that Perez’s exhaustion of the administrative process can be waived in light of the extraordinary threat posed—in his unique circumstances—by the COVID-19 pandemic. And the Court agrees with the parties that this threat also constitutes an extraordinary and compelling reason to reduce Perez’s sentence to time served. Accordingly, Perez’s motion is GRANTED....

Here, delaying release amounts to denying relief altogether. Perez has less than three weeks remaining on his sentence, and pursuing the administrative process would be a futile endeavor; he is unlikely to receive a final decision from the BOP, and certainly will not see 30 days lapse before his release date. Perez asks that his sentence be modified so that he can be released now, and not on April 17, 2020, because remaining incarcerated for even a few weeks increases the risk that he will contract COVID-19. He has had two surgeries while incarcerated, and continues to suffer severe side effects such as ongoing pain and persistent vision problems. ECF No. 96 at 4. As the Government concedes, Perez faces a “heightened risk of serious illness or death from COVID-19 due to his preexisting medical issues.” Gov’t Letter at 3. Requiring exhaustion, therefore, would be directly contrary to the purpose of identifying and releasing individuals whose circumstances are “extraordinary and compelling.”

Download Perez-Order-Compassionate-Release

April 1, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Wondering again about pace and number of federal sentencings after another Varsity Blues defendant gets imprisonment term

This AP article, headlined "Mother Sentenced to 7 Months in College Admissions Scam," reports on the high-profile federal sentencing that went forward in Boston by video conference yesterday.  Here are the basics:

A California woman was sentenced Tuesday to seven months in prison for paying bribes to rig her two daughters' college admissions exams and get one of them into Georgetown University as a fake tennis recruit.

In an unusual hearing held via videoconference due to the coronavirus pandemic, the judge rejected Elizabeth Henriquez's bid to avoid prison because of the public health crisis but is allowing her to remain free until at least June 30 in the hopes that the outbreak will have diminished by then. “I have every hope that the coronavirus crisis will abate in a matter of months and that Ms. Henriquez will be able to serve her sentence safely and rebuild her life,” U.S. District Judge Nathaniel Gorton said.

Henriquez and her husband were charged with paying $400,000 in bribes to get their oldest daughter into Georgetown as a bogus tennis recruit in 2016. They also paid bribes to have someone cheat on their daughters' college entrance exams, authorities said. In one instance, the purported proctor sat next to her daughter while she took a test and fed her the answers and then “gloated” with Henriquez and the teen about how they had cheated and gotten away with it, authorities said....

Her husband, Manuel Henriquez, is the founder and former CEO of Hercules Capital, a finance firm in Palo Alto, California. He is scheduled to be sentenced April 8.

Her lawyers had urged the judge to give her home confinement, citing a memo written by Attorney General William Barr who said some nonviolent inmates who are particularly at risk to the virus may be safer at home than behind bars....

Henriquez was sentenced via videoconference to keep people from gathering at the federal courthouse in Boston amid the pandemic. The judge talked to Henriquez and lawyers over video chat while news media and other members of the public listened on the phone. The Boston court and halls of justice across the country have delayed jury trials and moved to video and telephone hearings to keep the criminal justice system moving while people are hunkered in their homes.

Prosecutors had argued in court documents that she deserved more than two years behind bars. Gorton ordered Henriquez to begin serving her prison sentence on June 30 but said he would consider a request to push that back further if necessary.

As I mentioned here a few weeks ago, under normal circumstances 300 federal sentences are imposed every work day, 1500 federal sentences are imposed every work week, 6200 federal sentences are imposed every month in US courts nationwide.  Clearly, some number of federal sentencings are going forward, but I am so very eager to know how many.  I am hoping that before too long, the US Sentencing Commission or the Justice Department will try to provide some real-time data on the administration of federal criminal justice amidst the COVID crisis.

A few prior recent related posts:

April 1, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Federal prisons begin two-week lockdown ... which I hope (but doubt) will help enable mass movement to home confinement

As reported in this Politico piece, "Federal prisons are ordering inmates confined to their cells for the next two weeks in order to fight spread of the coronavirus in the cramped confines of U.S. Government-run penal institutions." Here is more (with links from the original):

The lockdown will begin Thursday and could be extended, the Bureau of Prisons said in a statement late Tuesday.   Some exceptions will be allowed in an effort to maintain normal programs and sanitation, the statement said.  “Limited group gathering will be afforded to the extent practical to facilitate commissary, laundry, showers, telephone, and [computer] access,” the Bureau’s announcement said. “During this time, to the extent practicable, inmates should still have access to programs and services that are offered under normal operating procedures, such as mental health treatment and education.”... 

Criminal justice reform backers, including some lawmakers, have been pressing for immediate release of older inmates and those at particular risk due to pre-existing health conditions.... Attorney General William Barr has ordered a review of the prison population for inmates who could be sent to home confinement without jeopardizing public safety.

While Barr proposed increasing the number of inmates on home confinement, he said last week that many inmates are likely safer in prison than outside.  Any releases under the new policy seem likely to be at least a week away because Barr has said he wants such prisoners to be quarantined before being sent home.  "We also have to provide that anyone who is released to home confinement is quarantined before they go out, for 14 days to ensure that we're not putting people out in the community who have it,” he said....

One of the massive virus-response bills passed by Congress last week gives the Justice Department more authority to release federal prisoners early if Barr declares that an emergency is interfering with prison operation.  The Justice Department has not responded to questions about whether Barr has yet issued such a declaration.

One criminal justice reform advocate expressed disappointment in the lockdown, saying it is likely to aggravate problems related to the virus, not ameliorate them.  “How incredibly short-sighted, contrary to the advice of any experts, and inhumane,” Chris Geidner of the Justice Collaborative wrote on Twitter. “Keeping people in their cells for 14 days straight is NOT the same thing those of us elsewhere are going through.  Most of us have a supply of soap and hygienic bathrooms in separate rooms from where we eat, for starters.”

In recent days, judges have ordered the release of some immigration detainees at greatest risk for serious illness from the virus. There have also been releases of pretrial detainees and convicts at the state and local level, but few from federal prisons.

On Tuesday, U.S. District Court Judge Jesse Furman in Manhattan turned down such a bid from a former medical doctor he sentenced to three years in prison roughly three weeks ago.  Lawyers for Nkanga Nkanga, 67, who pleaded guilty to issuing unwarranted opioid prescriptions, said he’s in grave danger at a Brooklyn prison due to his age and declining health, including asthma and complications from a stroke a decade ago.

In an impassioned opinion, Furman wrote that if he’d realized the gravity of the pandemic several weeks ago, he would have postponed sentencing Nkanga or ordered some relief to keep him out of prison until the danger abates. But the judge concluded he lacks any authority to release a prisoner already serving his sentence.  “Dr. Nkanga’s case is a vivid illustration of why the dangers posed by Covid-19 to the imprisoned population cry out for action by Congress and the Executive Branch,” wrote Furman, an appointee of President Barack Obama. “Although the rational and right result is for Dr. Nkanga to be temporarily released from custody until circumstances improve, the Court is powerless at this point to bring about that result.”

Nkanga’s lawyers returned to the court early Wednesday with an argument that Furman has the power to release their client in response to a habeas corpus petition challenging his conditions of confinement.  Furman has yet to respond to that last-ditch plea, but in his earlier ruling he said officials outside the judiciary are the only ones who have the power and agility to safeguard prisoners at the most serious risk from the virus.  “Only the political branches can do what this moment requires,” the judge wrote. “The question is whether they will do so — and, if they do, whether their actions will be too late for Dr. Nkanga and other inmates like him.”

Chris Geidner is entirely right that this system-wide lockdown in uniquely burdensome for federal prisoners.  But, hoping to (foolishly?) imagine that BOP lemons could be turned into lemonade, I want to now believe that the urgency of the COVID-19 crisis is finally dawning on Justice Department officials and that BOP will be using the two-week lockdown period to identify as many prisoners as possible who can be moved out of prison and into home confinement ASAP.  I am not really expecting to see a mass movement of federal prisoners to home confinement come April 15, but I think this lockdown at least provides a target date for advocates to demand that BOP move forward with the kinds of mass decarceration efforts that all public health experts are saying is now essential. 

A few of many prior related with a focus on federal facilities posts:

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

Tuesday, March 31, 2020

California working toward accelerating release dates for 3,500 inmates who were to to be released in next two months

This local piece from California report that, "California is granting early release to 3,500 inmates in an effort to reduce crowding as coronavirus infections begin spreading through the state prison system." Here is more:

Lawyers for Gov. Gavin Newsom on Tuesday told a panel of federal judges the state is taking “extraordinary and unprecedented protective measures” to slow the spread of the virus and protect those who live and work within California’s 35 prisons.  The accelerated parole policy — affecting inmates due to be released over the next 60 days — comes in the face of pressure to do much more.

Lawyers representing inmates in long-standing civil rights litigation against the prison system have asked those judges for broader prison releases, as well as protective measures to reduce the threat to older or medically vulnerable inmates not likely to be considered for release.  A court hearing on the emergency motion is set for Thursday.

In court filings, state lawyers said California intends to accelerate parole dates for 3,500 inmates serving terms for nonviolent crimes and already due to be released within 60 days. The releases are to be conducted “within the next several weeks.”

March 31, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Another day, another round of discouraging COVID news from jails and prisons around the US

In recent posts here and here, I have rounded up just some of the many headlines and news stories that detail how coronavirus cases among inmates and staff are impacting jails and prisons nationwide.  As we close out March, another round-up of these stories proves even more discouraging with news of ever-growing numbers of cases in ever-growing numbers of facilities.  Here is just a sampling of headlines as of mid-afternoon Monday March 31:

California: "Four inmates, 18 workers in California prisons have tested positive for coronavirus"

Connecticut: "Connecticut prisoner tests positive for COVID-19 virus"

Georgia: "Coronavirus is spreading in Georgia prisons"

Illinois: "1st Illinois prison inmate dies of COVID-19, health officials say"

Maryland: "Maryland prison system confirms first coronavirus cases"

Massachusetts: "17 inmates, 4 staff test positive for coronavirus at Bridgewater prison"

Michigan: "How Michigan's prison system is addressing a rising COVID-19 case count: As of Monday morning, 80 inmates and 14 Michigan Department of Corrections employees have the virus."

Minnesota: "First COVID-19 case found in Minnesota prison system"

New York: "Rikers doc: DAs fail to recognize ‘public health disaster’ of coronavirus"

Ohio: "First Positive COVID-19 Test at an Ohio Prison is Worse Than it Seems"

Texas: "Bowie County Judge confirms 2 jail employees test positive for COVID-19"

Wisconsin: "More deputies working in Dane County Jail test positive for coronavirus"

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

"Returning Citizens Should Get Checks Too"

The title of this post is the title of this recent commentary by Jennifer Doleac, which gets started this way (with links from the original):

Concerns over the rapid spread of coronavirus in jails and prisons have led to calls for inmates’ early release in order to reduce the spread of the virus.  As a result, jail and prison populations are falling dramatically.  There is good reason to release people who aren’t an immediate public safety threat — we are living through an unprecedented health crisis, and saving lives should be our top priority.  However, the rapid release of people from jail and prison, into an economy with skyrocketing unemployment, may set them up for failure.

Releasing people from prison at a time when jobs are scarce increases the likelihood that they will commit another crime and be locked up again.  This is partly because they themselves are unable to find a job, and partly because their friends and family are out of work and less able to provide crucial support.  Our rush to get people out of jails and prisons to protect their health may unintentionally make it harder for them to build stable lives and avoid criminal activity. For the sake of these individuals and their communities, we should move quickly to make sure they have the support they’ll need in the weeks and months ahead.

What should we do?  Send them checks!

People often think that jobs are the key to reducing crime, but recent research suggests that money matters more than employment itself.  Why?  Most directly, giving people money reduces the need to commit financially-motivated crimes, such as theft or robbery.  It also gives people the means to stay away from friends or family who are negative influences or might draw them back into old behaviors.  Extra disposable income also helps people access programs that put them on a permanently-better track — for instance, education or health care — and reduces financial stress that can hamper decision-making.  In practice, the structure that comes with a job doesn’t seem as important as the money that jobs provide.

It’s not obvious that giving people money will always reduce crime: If recipients spend that money on drugs or alcohol, the net effect could be negative.  But several studies show that, on average, more money equals less crime.

March 31, 2020 in Impact of the coronavirus on criminal justice, Reentry and community supervision | Permalink | Comments (0)

Monday, March 30, 2020

House Judiciary Chair Nadler and Subcommittee Chair Bass send letter to Attorney General Barr urging him to protect the most vulnerable federal prisoners and staff from COVID

As detailed in this press release, "House Judiciary Committee Chairman Jerrold Nadler (D-NY) and Subcommittee on Crime Chairwoman Karen Bass (D-CA) sent a letter to U.S. Attorney General William Barr urging him to use the authority granted under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to protect the most vulnerable prisoners and those working in federal prisons from coronavirus (or COVID-19)." The full letter, which runs seven pages, is available at this link and merits a full read. Here are excerpts:

On the evening of March 28, 2020, we sadly learned of the first death of a prisoner in the custody of the federal Bureau of Prisons (BOP) due to COVID-19. The decedent was a 49-year-old African-American man who, according to the BOP’s press release announcing his death, had “long-term, pre-existing medical conditions which the CDC (Centers for Disease Control and Prevention) lists as risk factors for developing more severe COVID-19 disease.”  He was housed in a low-security facility in Oakdale, Louisiana. Reports now indicate that one guard at the same facility is in intensive care due to COVID-19 and there have been positive test results for another 30 prisoners and staff.  This death and the explosion of cases in the Oakdale prison underscore the urgency of taking action to prevent more avoidable deaths of individuals in federal custody.

The Department of Justice (DOJ) and BOP presently have the authority to request, under 18 U.S.C. § 3582(c)(1)(A)(i), that courts modify the sentences of prisoners who present “extraordinary and compelling reasons.”  We call on you, in the most urgent of terms, to do the right thing and exercise this authority and immediately move to release medically-compromised, elderly, and pregnant prisoners in the custody of the BOP.

In addition, we urge that you use every tool at your disposal to release as many prisoners as possible, to protect them from COVID-19.  Along those lines, and as you move forward with planning for and executing the release of what we hope will be an appropriately sizable number of BOP prisoners, we urge you to consider the issues raised below.

On March 27, 2020, the House passed, and President Trump signed into law, the Coronavirus Aid, Relief, and Economic Security Act,” or the “CARES Act.”[6] Among other things, the CARES Act broadens the authority of the Attorney General and the Director of the BOP, during the COVID-19 crisis, to release prisoners to home confinement.[7] We ask that both you and the Director of the BOP interpret and exercise this new authority as broadly as possible, given that thousands of lives are at stake....

Although we were encouraged to see that you have already issued a directive to the Director of the BOP prioritizing home confinement as appropriate in response to the COVID-19 pandemic, your memorandum raises a number of concerns....

We also ask that you collect and maintain comprehensive data about the release of inmates into home confinement in response to the COVID-19 pandemic for the purpose of reporting the information to Congress.  Specifically, we ask that you gather data pertaining to every inmate in BOP and whether they were considered for release and if not, why not.  With regards to those who were considered for release, but were ultimately not released, please provide an explanation for why they were not released.  Please ensure that this data is collected and organized in a way that it can be searched in relation to demographic factors, such as age, race and ethnicity, and gender.

Finally, it goes without saying that we are deeply concerned about what is going on in BOP facilities around the country during this pandemic, especially now that a federal prisoner has died from COVID-19 and reports of increasing numbers of infected prisoners and correctional officers.  In the coming weeks, we hope you will institute aggressive measures to release medically-compromised, elderly and pregnant prisoners, as well as universal testing in BOP facilities -- to protect everyone.   As we have told you before, we are ready to work with you to address the needs of prisoners during this difficult time.  We appreciated your response to our earlier letters on the topic of COVID-19.  We look forward to receiving your response to this letter in the same prompt manner.  Urgent action is required because lives depend on it.

March 30, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Ugly details on COVID realities in federal prison in Louisiana as Bureau of Prisons slowly updates system-wide spread

The Washington Post has this troubling report, headlined "An explosion of coronavirus cases cripples a federal prison in Louisiana," about what is going on the federal prison where the first federal inmate died from contracting the coronavirus.  Here are excerpts:

A federal prison in Louisiana has, within days, exploded with coronavirus cases, leading to the death of one inmate on Saturday, the admission of a guard into a hospital intensive care unit, and positive test results for another 30 inmates and staff.  Patrick Jones, 49, was the first inmate in the Federal Bureau of Prisons diagnosed with the novel coronavirus, which causes covid-19, and the first to die.

At least 60 inmates at the Oakdale prison are in quarantine and an unknown number of staff are self-quarantining at home, said Corey Trammel, a union representative for correctional officers at the 1,700-inmate facility about 110 miles northwest of Baton Rouge. “It’s been simultaneous, just people getting sick back to back to back to back,” Trammel said. “We don’t know how to protect ourselves. Staff are working 36-hour shifts — there’s no way we can keep going on like this.”

The prison bureau is not releasing the names of other infected inmates or staff, citing medical and privacy concerns. Jones complained of a “persistent cough” on March 19, the prison bureau said, and was transported to a hospital where he was diagnosed and placed on a ventilator. The prison bureau also said Jones had “long-term, preexisting medical conditions” that increased his risk of developing the disease. Jones was convicted in 2017 of possession with intent to distribute crack cocaine within 1,000 feet of a junior college. He was serving a 27-year sentence....

Trammel said the prison bureau has been slow to respond to the crisis across the country. The bureau last week banned family and friends from visiting inmates, but the officers’ union had lobbied the federal prison system to take this action for weeks to keep the disease from infiltrating the prison walls.

The Bureau of Prisons updates confirmed coronavirus cases most afternoons on its website, but there has been a lag between cases reported by the officers’ union and prison officials. As of Sunday afternoon, the prison system had only confirmed 14 inmates and 13 staff have tested positive.

At Oakdale, Trammel said staff also asked prison officials — weeks before the first coronavirus case — to shut down a prison labor program within the facility, where more than 100 prisoners make inmate clothing. The program, Trammel said, was not shut down until after the first inmate tested positive. The Bureau of Prisons — which operates 122 prisons with more than 175,000 inmates — did not immediately respond Sunday to a request for comment. Oakdale Warden Rod Myers could also not be reached for comment.

Trammel said he asked the prison bureau on Saturday to send specialized medical teams to the facility to help with staffing shortages. He’s also asking for hazard pay, which would increase their salaries by 25 percent as they respond to the crisis. And he’s asking for more robust protective gear, including masks with respirators and perhaps face shields. “We are bringing inmates to the hospitals and are staying right beside them around the clock,” Trammel said. “All we have is these itty bitty masks — a piece of towel over our faces — and nurses are coming into the room for a few minutes and they are all suited up.”

He also said he believes all Oakdale prison staff have now been exposed to the virus. Days ago, he interacted with an inmate who had a fever and still doesn’t know if the prisoner has received a test. “We should all be in quarantine,” Trammel said. “We should not be going in to spread this monster of a virus.”

Interestingly, BOP on this COVID-19 Update page says it is updating its "dashboard daily at 3:00 p.m." BOP did not seem to do daily updates over the weekend (if only COVID took weekends off).  But, perhaps prodded by this Washington Post piece, it seems BOP did do an update this morning as it now reports that 19 federal inmates and 19 federal prison staffers have tested positive for COVID-19.  Here is where those numbers come from:

(Inmate) 3/29/2020 - MDC Brooklyn; FCC Oakdale (5); USP Atlanta (2); MCC New York (3); FMC Butner; FCI Otisville; RRC Phoenix, AZ; RRC Brooklyn, NY (4); RRC Janesville, WI.

(Staff) 3/29/2020 - Grand Prairie, TX; Leavenworth, KS (no inmate contact); Yazoo, MS (2); Atlanta, GA; Danbury, CT; Butner, NC; Ray Brook, NY; New York, NY (2); Chicago, IL (2); Brooklyn, NY (3); Oakdale, LA (3); Lompoc, CA.

Disconcertingly, the Washington Post piece reports "positive test results for another 30 inmates and staff" from Oakdale, LA, whereas the updated BOP page appears to be reporting only eight positives (five inmates, three staff) in that facility.  I sure would like to be able to trust, and I sure would like for federal prosecutors and judges and defendants to be able to trust, the data coming from the BOP.  But for now I am more inclined to trust my pessimistic instinct that every federal facility has coronavirus problems and these problems seem all but certain to get worse in the days and weeks ahead.

A few of many prior related with a focus on federal facilities posts:

UPDATE: This new New York Times piece addresses these topics more generally under the headline "As Coronavirus Spreads Behind Bars, Should Inmates Get Out? Some jails are releasing people as the virus gains a foothold inside, but critics say it is not happening quickly enough to save lives and resources."

 

ANOTHER UPDATE: BOP on this COVID-19 Update page did its afternoon update on Monday, and now reports that 28 federal inmates and 24 federal prison staffers have tested positive for COVID-19.  Here is where those numbers come from:

(Inmate) 3/30/2020 - MDC Brooklyn; FCC Oakdale (7); USP Atlanta (2); MCC New York (3); FMC Butner (2); FCI Otisville; FCI Danbury; FCC Lompoc (3); FCI Elkton (2); RRC Phoenix, AZ, RRC Brooklyn, NY (4); RRC Janesville, WI

(Staff) 3/30/2020 - Grand Prairie, TX; Leavenworth, KS (no inmate contact); Yazoo, MS (2); Atlanta, GA (2); Danbury, CT; Butner, NC; Ray Brook, NY; New York, NY (2); Chicago, IL (2); Brooklyn, NY (4); Oakdale, LA (3); Lompoc, CA; Otisville, NY; Fort Dix, NJ; Talladega AL.

As suggested before, I remain confident that these data serve as an undercount of federal facilities and people impacted by COVID-19.

March 30, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Sunday, March 29, 2020

Dispiriting review of more COVID news from jails and prisons around the US

In this recent post, I noted many headlines and news stories that detailed how coronavirus cases among inmates and staff were impacting jails and prisons nationwide. Four days later, another round-up of these stories proves even more dispiriting with news of COVID deaths and ever-growing numbers of cases.  Here is just a sampling of headlines from some of our largest criminal justice systems as of mid-afternoon Sunday March 29:

National: "Spread of coronavirus accelerates in U.S. jails and prisons"

Federal: "Coronavirus claims first federal prisoner; 49-year-old drug offender dies in Louisiana"

Florida: "Seven Florida Department of Corrections employees test positive for COVID-19"

Georgia: "Lee State Prison inmate dies, 4 staff members test positive for COVID-19"

Illinois: "Coronavirus In Chicago: 89 Inmates, 12 Staff At Cook County Jail Test Positive For COVID-19"

Michigan: "Coronavirus cases surge in Michigan’s crowded prisons"

New York: "Coronavirus claims life of NYC correction officer, union says"

Texas: "3 COVID-19 Cases Confirmed in Texas State Prisons; 42 Employees Isolating at Home"

Sadly, but unsurprisingly, Rikers Island is its own COVID-replicating land: According to this recent press piece, "as of Sunday, 114 DOC corrections officers and 139 inmates have tested positive for COVID-19."

March 29, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

How about offering "diploma privilege" law degrees for current 3Ls who help practicing lawyers with compassionate release and clemency petitions?

The question in the title of this post is my reaction to the interesting and important debate over whether and how a bar exam should be required for current 3L law students in order for them to be able to become practicing lawyers.  This Law.com article, headlined "Fall Bar Exam Added, Fate of July Test Uncertain Amid COVID-19 Pandemic," details the issues and challenges:

Jurisdictions now have the option to offer the bar exam in the fall.  The National Conference of Bar Examiners, which develops the nationwide test, announced Friday that it will offer an alternate date for the all-important licensing exam for jurisdictions that cannot, or choose not to, move forward with the July administration due to the COVID-19 pandemic.

The national conference has not yet canceled the July exam.  It will decide the fate of the July test no later than May 5, with the idea that it will have a better idea of whether enough jurisdictions want to move ahead with the test and whether public gathering restrictions will even make it possible....  If some jurisdictions do offer the bar exam in July, the national conference will prepare a different test for the fall — the date of which has not yet been finalized, conference president Judith Gundersen said Friday.

Moving to a fall bar exam would delay admission for test takers by about two months, the national conference noted, but that’s preferable to waiting until the February 2021 exam.  “There are no simple answers and no great solutions in this situation,” read the national conference’s statement. “We are trying to provide some certainty in truly uncertain times, while maintaining the integrity of the bar admissions process for the benefit and protection of the public.”

Any postponement of the bar exam may not sit well with graduating law students, some of whom have begun to organize and lobby their jurisdictions for a one-time emergency diploma privilege that would enable them to practice without taking and passing the bar.

Brian Heckmann, a third-year student at Florida International University College of Law, said simply postponing the bar exam until the fall is short-sighted. “Given the nature of this pandemic, there is no guarantee we won’t be in the same position come the end of August that we are in now,” he said Friday. “What would happen then? Keep kicking the can down the road and delay the ability for graduates to practice indefinitely?” Delaying the admission of new lawyers would also exacerbate the nation’s growing unemployment problem and force new law grads to take jobs for which they are overqualified while they await the opportunity to take the bar, he added.

Bar examiners and court systems have come under increasing pressure this week to make swift decisions about the fate of the bar exam, in part to help alleviate some of the stress and uncertainty graduating law students feel about the future and their professional prospects.  A widely read paper released March 23 by 11 legal academics and education policy experts [available here] argues that jurisdictions should act fast in adopting alternatives to the July bar, given that it seems increasingly unlikely that it will be safe to gather so many people together at that time.  The paper argues against postponing the exam, given that the COVID-19 pandemic may stretch on in waves and that predicting when it will be safe to convene in large numbers is difficult....

Meanwhile, law students are coalescing around the diploma privilege concept.  More than 1,000 law students this week signed a letter to the New York State Bar Association’s Task Force on the New York Bar Examination asking it to quickly adopt a diploma privilege for 2020 graduates of American Bar Association-accredited law schools, arguing that it is the fairest way to handle the unprecedented situation while also ensuring new lawyers come online to address access to justice issues.

Law students in Florida are also pushing for a diploma privilege. By Friday morning, nearly 2,000 had signed a petition calling on the Florida Board of Bar Examiners to extend an emergency diploma privilege to 2020 graduates of ABA-accredited law schools who had registered for the July test.  “Such privileges could easily come with stipulations that ensure the competence of those admitted to the practice of law so as to protect the public from unqualified lawyers,” the petition reads.

I have never been a big fan of the bar exam, so I approach this debate with an affinity for finding other ways to license lawyers.  And, as the title of this post is meant to suggest, at this time of national (and international) public health emergencies, shouldn't we be urging young lawyers-in-training to invest their time in activities other than studying for a high-pressure, mega-test?

Unsurprisingly, I think it would be great to channel junior lawyer time into mass clemency and compassionate release efforts. But there are, of course, so many other legal needs being created and enhanced by the COVID pandemic.  I would hope bar official might appreciate that encouraging junior lawyers to pursue legal community service, rather than focus on bar prep, could help encourage a group of new lawyers to have the right kind of professional commitments and values from the very start of their careers.

March 29, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (2)

Saturday, March 28, 2020

Rounding up some tales of crime amidst COVID lockdowns

I have seen a number of recent headlines discussing crime realities as we complete another week of shuttered cities battling the coronavirus.  Here is a sampling from major news sources:

From the Associated Press, "Coronavirus-related crimes are on the rise"

From the Chicago Tribune, "Chicago joins New York, Los Angeles with drops in crime as coronavirus and shelter order take hold"

From the Los Angeles Times, "Coronavirus restrictions caused crime to fall sharply, LAPD and sheriff report"

From The Marshall Project, "As Coronavirus Surges, Crime Declines in Some Cities"

From the Philadelphia Inquirer, "Despite concerns of lawlessness, Philadelphia crime drops in first week of social distancing"

From the Wall Street Journal, "Coronavirus Pandemic Changes Policing, Including Fewer Arrests: As crime falls, police focus on keeping social order, enforcing social distancing"

From the Washington Post, "New York City’s crime rate plummets amid coronavirus shutdown"

March 28, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

"Five ways the criminal justice system could slow the pandemic"

The title of this post is the title of this great new report from the Prison Policy Initiative.  Here is how the report gets started and its listed "five ways":

The United States incarcerates a greater share of its population than any other nation in the world, so it is urgent that policymakers take the public health case for criminal justice reform seriously and make necessary changes to protect people in prisons, in jails, on probation, and on parole.

Below, we offer five far-reaching interventions that policymakers can use to slow the spread of the virus in the criminal justice system and broader society. We previously published a list of common sense reforms that could slow the spread of the virus in jails and prisons.  In light of the rapid spread of COVID-19 throughout the U.S., and specifically in prisons and jails, we found it necessary to update these recommendations with more detail about who has the power and responsibility to enact policy change, and how to reform the criminal justice system in the midst of a public health crisis.

Quick action is necessary for three reasons: Correctional staff and incarcerated populations are already testing positive, the justice-involved population disproportionately has health conditions that make them more vulnerable, and the staffing resources required to make policy changes will be depleted long before the pandemic peaks.

The incarcerated and justice-involved populations contain hundreds of thousands of people who may be particularly vulnerable to COVID-19, including those with lung disease, asthma, serious heart conditions, diabetes, renal or liver disease, and with other immunocompromising conditions. Protecting vulnerable people will not only improve outcomes for them, but will also reduce the burden on the healthcare system, protect essential correctional staff from illness, and slow the spread of the virus....

The final reason to move quickly is that, even under normal circumstances, establishing and implementing new policies and practices is something that the government finds challenging to do on top of its other duties.  Now that the number of COVID-19 cases is higher in the U.S. than any other country, we know that more people will continue to be directly impacted by illness, including policymakers and government leaders.  With the possibility of up to 40% of government lawyers and other policymakers getting sick or taking care of sick relatives, making policy change is going to be much harder and take far longer.  If the government wants to protect both justice-involved people and their already overstretched justice system staff from getting the virus and spreading it further, they need to act now.

Here are five places to focus:

1. Reduce the number of people in local jails....

2. Reduce the number of people in state and federal prisons....

3. Eliminate unnecessary face-to-face contact for justice-involved people....

4. Make correctional healthcare humane (and efficient) in a way that protects both health and human dignity....

5. Don’t make this time more stressful for families (or more profitable for prison telephone providers) than absolutely necessary....

March 28, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Friday, March 27, 2020

Hundreds of former DOJ officials and federal judges urge Prez Trump to commute sentences and create emergency advisory group to respond to COVID-19 challenges

The folks at Fair and Just Prosecution has this new press release discussing a notable new plea for more action from Prez Trump to address COVID-19 challenges in our nation's criminal justice system.  From the start of the press release (with bold in the original):

Today 405 former DOJ leaders, attorneys, and federal judges — including 35 former United States Attorneys who served under both Republican and Democratic Administrations —issued an open letter to President Donald Trump asking him to take immediate action to reduce the population in federal detention and correctional centers to prevent the catastrophic outbreak of COVID-19 in these facilities.  In the letter, they urge the President to support efforts to mitigate the spread of COVID-19 among those held in federal custody — as well as the many individuals who work in these facilities and return to their community at the end of each shift — by:

  • Using his executive power to sensibly commute sentences for the elderly, those who are medically vulnerable and individuals who have already served most of their sentence, provided that they do not pose a serious risk to public safety;
  • Encouraging and establishing policies to promote the limitation of new custody to only individuals who present a serious and demonstrable risk to public safety;
  • Creating a bipartisan emergency advisory group to quickly guide this process and ensure the most vulnerable are protected;
  • Urging the Bureau of Prisons to take measures to ensure correctional staff receive regular testing as well as health care support, including full pay if they become sick with the virus; and
  • Supporting emergency funding for prevention, treatment, reentry support, and incentivizing state and local governments to address the public health concerns in their own jails and prisons.

I like all these recommendations, and I especially see value in creating some kind of special working group to focus on a range of federal and national criminal justice administration issue.

UPDATE: I have also now seen this additional letter that dozens of leading public health experts has sent to President Trump.  Here is this letter's chief clemency recommendations (with bold in the original):

First, we ask that you commute sentences for all elderly people.  While the SARS-CoV-2 virus infects people of all ages, the World Health Organization (WHO) is clear that older people are at a higher risk of getting severe COVID-19 disease and dying.  In fact, the risk of severe disease gradually increases with age starting from around 40 years.  Also, older people who are released from prison pose little risk to public safety.

Second, we are also asking that you commute sentences for the medically vulnerable population including persons suffering from cardiovascular disease, diabetes, chronic respiratory disease, or cancer.  In addition to older people, WHO has identified persons with these underlying medical conditions to be at greater risk for contracting severe COVID-19.  While there is little known yet about the effects of COVID-19 on pregnant women, the CDC explains that with viruses from the same family as COVID-19, and other viral respiratory infections such as influenza, pregnant women have had a higher risk of developing severe illness.

Third, we are asking that you commute sentences for all persons who have one year or less remaining on their sentence.  This measure will limit overcrowding that can lead to further spread of COVID-19 and free up beds that will be needed to care for the sick who should be housed separate from others.

March 27, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Federal inmates and staff all around the nation now testing positive for coronavirus

In this post yesterday, I noted a press piece which reported that Attorney General William Barr had said that a "total of six inmates and four prison staffers have tested positive for COVID-19."  Because my post was done after 3pm yesterday, I was able to then report that, as of March 26, the BOP was reporting 10 federal inmates and 8 federal prison staffers had tested positive for COVID-19.  It is now after 3pm on March 27, and the BOP's COVID-19 Update page is now reporting that 14 federal inmates and 13 federal prison staffers have tested positive for COVID-19.  Here is where those numbers come from:

(Inmate) 3/27/2020 - MDC Brooklyn; FCC Oakdale (5); USP Atlanta (2); MCC New York (2); RRC Phoenix; RRC Brooklyn (3). (Note: Symptomatic inmates are isolated in accordance with CDC guidelines.)

(Staff) 3/27/2020 - Grand Prairie, TX; Leavenworth, KS (no inmate contact); Yazoo, MS (2); Atlanta, GA; Danbury, CT; Butner, NC; Ray Brook, NY; New York, NY (2); Chicago, IL (2); Brooklyn, NY.

In addition to wishing all these individuals well, I am also wishing that everyone expects and acts as if these numbers are likely to grow exponentially in the days and weeks to come. Public official have the power, and now that power must be used, to avoid turning far too many prisons sentences into essentially death sentences.

A few of many prior related posts:

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

"Four Things Every Prison System Must Do Today"

The title of this post is the headline of this lengthy new Slate piece authored by Margo Schlanger and Sonja Starr. I highly recommend this piece in full and here are excerpts:

As COVID-19 spreads rapidly throughout the United States, it has begun to enter our prisons and jails, which confine more than 2 million people. We are on the verge of catastrophe — for incarcerated persons, staff, and their families, obviously, but also for the general public. Some officials have been sounding the alarm, and we’re beginning to see some action — but not nearly enough, and not fast enough....

Per capita, the incarcerated population in the United States is several times larger than that of nearly every other country in the world. That renders us uniquely vulnerable to this disease vector.  It is nearly inevitable that this virus will hit our prisons and jails hard and soon.  Indeed, it’s surely already in more of them than we know.  The only question is how bad the damage will be.  We can mitigate it only with swift and aggressive action.

The only way to really limit this catastrophe is by quickly reducing the number of people incarcerated. If we can get everyone out who doesn’t have to be there, it will also produce some critical space that institutions will need to enable social distancing and to isolate the sick, and might even make it possible to operate with reduced staff.  And although some are already infected, there will be a smaller number if we act today than there will be if we act tomorrow, or next month. Moreover, we can minimize the risk those already infected pose to the community by ordering that those released stay at home for two weeks or more.

Governors of many states have the authority, under emergency powers and/or their ordinary clemency powers, to order quite sweeping steps. Courts can implement others  (here’s a catalog of state Supreme Court orders so far, and also of litigation seeking emergency prisoner releases), and local prosecutors can be crucial actors as well.  There are several key steps that states (and the federal system) should take:

1. Delay new sentences, except as absolutely necessary. Sentence start dates, sentencing hearings, plea hearings, and trial dates can be deferred until after the emergency....

2. Sharply limit pretrial detention....

3. Commute all sentences due to end within a year....

4. Release older and chronically ill individuals....

Some of the steps proposed here might seem radical in ordinary times. But these are extraordinary times. Throughout the country, governors and other public officials are taking sweeping, dramatic actions to protect the public from COVID-19. Ordinary Americans are upending our lives in ways we could not have imagined just a week or two ago. If we don’t think at the same scale about the brewing crisis in prisons and jails, we will all suffer the consequences.

March 27, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Assembling some COVID criminal justice resource pages

I have previously posted here and elsewhere about some collected resources on coronavirus issues, but I have now decided to try to put some of these resources more permanently on my left sidebar.  Here are the links I have assembled so far, and I welcome suggested additions.

 

UPDATE: A helpful reader from Down Under wrote to me to suggest a bunch of additional terrific COVID-19 resource pages, including a number of international sites:

March 27, 2020 in Impact of the coronavirus on criminal justice, Recommended reading | Permalink | Comments (0)

Guest post/question: "Will home confinement become a more (or less) attractive alternative to incarceration?"

6a00d83451574769e201b7c9134b4d970b-320wiA thoughtful and insightful colleague wrote to me this morning to pose the question in the title of this post.  I asked for a fuller write up of the query for posting, and here it is:

Section 5F1.2 of the federal sentencing guidelines defines “home detention” this way —

"Home detention” means a program of confinement and supervision that restricts the defendant to his place of residence continuously, except for authorized absences, enforced by appropriate means of surveillance by the probation office.  When an order of home detention is imposed, the defendant is required to be in his place of residence at all times except for approved absences for gainful employment, community service, religious services, medical care, educational or training programs, and such other times as may be specifically authorized.  Electronic monitoring is an appropriate means of surveillance for home detention. However, alternative means of surveillance may be used if appropriate.

For most of us, the last two weeks have genuinely been a period of home detention.  For me, I’ve been supervised in my confinement not by a probation officer, but my wife and daughters, who, should I venture out too far or too long, are quick to send me an electronic message to return home.  [I think this meets the term “alternative means of surveillance” as used in 5F1.2.]  And of course, I am not approved for absences for gainful employment (telework), religious services (cancelled), or educational or training programs (Zoom).

Later today, the House of Representatives will pass legislation that will expand the use of home confinement for federal prisoners to address the current COVID crisis, and Attorney General Barr has already issued a directive to the Bureau of Prisons to expand its use (see earlier posts here and here).  Many of us for years have advocated for the expanded use of home confinement and electronic monitoring as alternatives to imprisonment and to reduce the nation’s reliance on imprisonment for punishing convicted offenders.  I’m not sure, though, now that we all have experienced home confinement, whether it will be a more — or less— attractive alternative to incarceration.

Doug — What do you think?   

Readers — What do you think?

My first-cut answer to this great question is an answer I have been trotting out a lot these days: "Who the heck knows, but I am eager to find out."

I am certain many people are not enjoying their personal "home confinement," and will be finding it more and more burdensome in the weeks to come.  But I also know that personal "home confinement" still likely would be, and surely should be, seen as much less burdensome than actually being incarcerated. (A recent Marshall Project speaks to this reality: "No, Your Coronavirus Quarantine Is Not Just Like Being in Prison.")   I fear that many persons may be inclined to say, after the pandemic resolves, some version of "Criminals should always face a harder experience than I did during COVID."

That all said, so much of the reality of criminal justice administration can be shaped by economics, especially at the state level where incarceration costs take up a much larger percentage of overall state budgets.  Home confinement surely will always be much cheaper than imprisonment, and finding cheaper punishments may become extremely important (for states in particular) if we are facing a long recession that makes limited state resources even more scarce. 

Last but certainly not least, if some states moved a significant number of current prisoners into home confinement while others do not, we will be starting an interesting and important "natural experiment" on the efficacy of home confinement relative to imprisonment.  Though this "natural experiment" will not be able to give us conclusive data on whether home confinement serves public safety as well as imprisonment, advocacy for decarceration are likely to highlight this experience if we do not see a huge spike in crime in those states that have decarcerated more.

March 27, 2020 in Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

Colorado Gov issues big executive order to address the impact of coronavirus on criminal justice administration

As reported in this local article, the "signing of two new executive orders by Gov. Jared Polis to combat coronavirus were announced Thursday [including] one to limit COVID-19 in prisons." Here are the basics:

Executive order D 2020 016 concerns “protocol for state prisons and community corrections facilities,” the release said.  Directives of the order include:

  • Colorado Department of Corrections can temporarily limit the amount of prisoners it accepts, based on certain criteria, keeping offenders in pre-transfer facilities.
  • DOC can award “earned time credits” to reduce the current prison population.
  • Qualifying inmates can be referred to a “Special Needs Parole” program.
  • A $17 daily subsistence payment required from community corrections clients will be suspended.

“The potential spread of COVID-19 in facilities and prisons poses a significant threat to prisoners and staff who work in facilities and prisons, as well as the communities to which incarcerated persons will return,” the release said.

The governor’s order also calls for making 650 beds available in the DOC’s East Cañon Complex, Cañon City, to “house persons of mixed classification for operational needs related to the COVID-19 outbreak.”

Rep. Leslie Herod, a Denver Democrat who has worked extensively on prison issues, supports the order. “The Executive Order is a critical recognition that something needs to be done to contain COVID-19 in our prisons and community corrections. The virus will strike there, as it will all of our communities, and I’m encouraged that the governor recognizes this fact and is taking important steps to contain its spread,” Herod said. “This is vital and I support it. We must keep offenders and our correctional officers safe and as healthy as possible.”

Dean Williams, executive director of CDOC, also applauded and supports the order. “This Executive Order from the Governor allows us to pursue potential options to manage our prison population without jeopardizing safety during this crisis,” Williams said in a statement. “We will be working diligently over the coming days and weeks to put into action the directives from the order in a thoughtful and measured way.”

Though I am not familiar enough with Colorado law to assess all the particulars of this executive order, which is titled "Temporarily Suspending Certain Regulatory Statutes Concerning Criminal Justice," I am familiar enough with the challenges that COVID is creating that I can praise Gov Polis for being proactive in this arena. 

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

Thursday, March 26, 2020

Will thousands of federal prisoners be eligible for home confinement under AG Barr's new guidelines?

Attorney General William Barr's new directive and guidelines to the Bureau of Prisons to prioritize home confinement for certain at-risk inmates can be seen as a small response to a big emergency.  This CBS News piece notes one response along these lines:

The announcement comes after calls from criminal justice advocacy groups to reduce prison populations nationwide in order to avoid what could be a disastrous and dangerous spread of the virus.  Kevin Ring, the president of Families against Mandatory Minimums, told CBS News his concern is that inmates will die unnecessarily if the bureau does not take "bolder" actions.  Ring says officials should consider other avenues like compassionate release.  "I don't think it's enough," Ring said.  "I think it's a small step in the right direction, but I think it's a peacetime move in a time of war."

Though I share the view that even bolder action is warranted, the extraordinary size and relatively low-risk profile of the federal prison population might still well mean that many thousands of federal inmates could be moved out of prison if BOP robustly implements AG Barr's guidance. The CDC states that "older adults and people of any age who have serious underlying medical conditions may be at higher risk for more serious complications from COVID-19," and possibly as much as 20% of the 175,000+ inmates might reasonably claim to be a-risk under CDC criteria and also claim to meet the other home confinement criteria set out by AG Barr.

Even assuming that only a very small percentage of prisoners, say, only 1 out of every 15 current federal prisoners, meet the home confinement criteria, that would still mean that well over 11,000 federal prisoners would be eligible to head home to serve out the rest of their sentences.  Because BOP has a well-earn reputation for being unwilling or unable to help prisoners get out of federal facilities early, I am not so confident that we will soon be seeing thousands of federal prisoners heading home.  But the directive from AG Barr now would seem to make that more of a possibility.

Prior related posts:

March 26, 2020 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (5)

"Correctional Facilities In The Shadow Of COVID-19: Unique Challenges And Proposed Solutions"

The title of this post is the title of this lengthy and comprehensive new posting at the Health Affairs Blog.  I recommend the lengthy piece in full, and here is how it gets started:

As the global COVID-19 pandemic accelerates, it is critical to note that incarcerated people in the U.S. have a constitutional right to healthcare services that meet community standards, and that older adults and those with chronic and/or serious medical conditions in prisons and jails are at grave risk of experiencing serious illness and death due to a COVID-19 infection -- just as they would be in the community.

Given the rate and spread of infection in the U.S., direct impact in many if not most U.S. correctional systems is inevitable.  Failure to mount an adequate response to potential COVID-19 outbreaks throughout the nation’s jails and prisons has the potential to devastate the health and well-being of incarcerated Americans, the nation’s correctional workforce, and people living in the thousands of communities in which our jails and prisons are located.  As the epidemic rapidly worsens, the narrow window of opportunity to implement effective prevention and mitigation strategies on behalf of people living and working in U.S. jails and prisons is quickly closing.  Last week, the World Health Organization (WHO) called upon correctional systems worldwide to take action, issuing interim guidelines for responding to the pandemic in jails, prisons, and other places of detetion, while protecting the health, safey and human rights of incarcerated people and correctional workforces. 

While coordinated action over the coming days and weeks is critical, there are many reasons that responding to COVID-19 in U.S. jails and prisons is uniquely and extraordinarily challenging.

And here is just some of the additional commentary I saw today in this same vein:

"COVID-19 gives us an urgent argument for compassionate release"

"How mass incarceration will lead to mass infection — and how to avoid it"

"‘The Only Plan the Prison Has Is to Leave Us to Die in Our Beds’"

"What Cuomo Hasn’t Done"

"Larry Hogan can lead by addressing covid-19 in prisons and jails"

"Families Fear The Worst As Coronavirus Spreads In Prisons"

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

"U.S. attorney general seeks to expand home confinement as coronavirus spreads in prisons"

The title of this post is the headline of this new Reuters piece, and here are the details:

U.S. Attorney General William Barr said Thursday he has directed the federal Bureau of Prisons (BOP) to expand its use of home confinement for inmates in appropriate cases, as the coronavirus has continued to spread in the federal prison system.

A total of six inmates and four prison staffers have tested positive for COVID-19, Barr said, adding that several federal facilities including two in New York City are now on lock-down as a result.

The First Step Act, signed into law by U.S. President Donald Trump in late 2018, expanded the BOP’s powers to maximize the amount of time that lower-risk inmates can spend in home confinement, when possible. “I’ve asked and issued a memorandum just today to the Bureau of Prisons to increase the use of home confinement,” Barr told reporters during what Barr said was the department’s first-ever “virtual” press conference in order to practice social-distancing.

“One of the things we have to assess is whether that individual...will be more safe in the particular circumstance in which they are going to find themselves. And in many cases, that may not be the case.” He added that any inmate released on home confinement will still face a 14-day quarantine.

Notably, since this article was published, the BOP has updated here its data on positive tests to report that there are now 10 federal inmates and 8 federal prison staffers who have tested positive for COVID-19.

UPDATE:  A helpful colleague provided me with a copy of the two page memorandum titled "Prioritization of Home Confinement As Appropriate In Response to COVID-19 Pandemic."  Here it is:

Download BOP Memo.Home Confinement

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

FAMM urges AG Barr to use new pending CARES Act provision to move federal prisoners into home confinement

I have not yet seen the exact language of the provision in the sure-to-pass federal CARES Act that expands the authority of the Justice Department and the Bureau of Prisons to move more persons from federal prison into home confinement.  But I have seen this new press release from FAMM, which starts this way:  

FAMM President Kevin Ring sent a letter today urging U.S. Attorney William Barr to immediately use his authority to release eligible people to home confinement as soon as the CARES Act becomes law.  The CARES Act, which was passed by the Senate last night and is expected to be approved by the House and signed by the president, permits the Director of the Federal Bureau of Prisons to lengthen the maximum amount of time that a prisoner may be placed in home confinement, if the U.S. Attorney General finds that emergency conditions will materially affect the functioning of the BOP.

“In order to prevent unnecessary deaths and suffering, the BOP needs to get as many people out of prison as it safely can and get them to home confinement immediately,” Ring said.  “Congress is giving the attorney general the authority to make that happen.  We urge the attorney general to act the moment this bill is signed into law.  Lives are at stake.”

Ring said the use of home confinement would also ease the burden on halfway houses, in which movement has been restricted, employment opportunities have been halted, and people are confined in tight quarters.  As with people in prison, halfway house residents cannot comply with CDC guidance regarding social distancing and good hygiene.

March 26, 2020 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Documenting early federal court COVID jurisprudence in response to various release requests from federal defendants and inmates

In this post on Monday (March 23), I documented some recent pre-coronavirus cases in which federal prisoners secured sentence reductions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).   I expect we will see more and more of these cases in the weeks ahead, especially as FAMM and NACDL and other groups look to support efforts to move vulnerable federal inmates out of unhealthy prison facilities via this avenue.

In doing Westlaw research this morning, I thought it might be informative to look more generally at how federal judges are responding to COVID-19 related claims and issues in criminal cases.  As is always the case, there is not a predictable pattern as to which opinions show up in Westlaw and which ones do not, so Westlaw searches alone cannot serve as a form of reliable comprehensive research.  Nevertheless, a search in the "Federal District Court" database for "covid prison" returned nearly 30 federal cases from just the last two days(!), and here is a small sampling of what courts are considering and saying in written opinions that now appear on Westlaw:

United States v. Clark, No. 19-40068-01-HLT, 2020 WL 1446895 (D. Kansas March 25, 2020) (responding to defendant detailed pending trial: "On balance, Mr. Clark has not established compelling reasons sufficient to persuade the court that temporary release is necessary. He has established only that his status as a diabetic puts him at an increased risk for experiencing severe illness if he were to contract COVID-19. His arguments regarding the risk of an outbreak at his facility is speculative. Furthermore, he has not established that his proposed release plan would necessarily alleviate his overall COVID-19 risks.")

United States v. Eberhardt, No. 13-cr-00313-PJH-1, 2020 WL 1450745 (N.D. Cal. March 25, 2020) (responding to most for a reduced sentence: "Furthermore, defendant fails to show that concerns about the spread of COVID-19, without other factors to consider in his particular case, present extraordinary and compelling reasons that warrant modification of his sentence and immediate release from custody pursuant to § 3582(c)(1)(A).")

United States v. Garlock, No. 18-cr-00418-VC-1, 2020 WL 1439980 (N.D. Cal. March 25, 2020) (sua sponte deferral of prison report date: "To avoid adding to the chaos and creating unnecessary health risks, offenders who are on release and scheduled to surrender to the Bureau of Prisons in the coming months should, absent truly extraordinary circumstances, have their surrender dates extended until this public health crisis has passed.")

United States v. Fitzgerald, No. 2:17-cr-00295-JCM-NJK, 2020 WL 1433932 (D. Nevada. March 24, 2020) (responding to habeas application: "Defendant argued for the first time in reply that he faces an increased risk of contracting COVID-19 if he remains in custody.... Defendant’s argument, however, applies equally to anyone in custody or, for that matter, at the halfway house or anywhere else in this community or any other. Defendant’s argument applies equally to every detainee in detention; however, the Court cannot release every detainee at risk of contracting COVID-19 because the Court would then be obligated to release every detainee.")

United States v. Williams, No. PWG-13-544, 2020 WL 1434130 (D. Nevada. March 24, 2020) (responding to emergency motion to reconsider setting bond: "The Court has reflected on all of the considerations and factors in play at the detention hearing held on February 11. Even with the pandemic that has befallen us, it does not change the calculus of detention here.... Defendant has still failed to demonstrate by clear and convincing evidence that release is appropriate. The existence of the present pandemic, without more, is not tantamount to a “get out of jail free” card. Not even for the older person being detained. While there has been a change in conditions as a result of the pandemic, there has not been enough change to justify the release of Mr. Williams.")

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

Wednesday, March 25, 2020

"You’re going to see devastation that’s unbelievable" says former director of Colorado Department of Corrections

The quote in the title of this post jumped out at me as I reviewed this lengthy new Stateline piece headlined "‘Prisons Are Bacteria Factories’; Elderly Most at Risk." Here is context and excerpts from the piece:

As the coronavirus pandemic sweeps the globe, prisoner advocates are warning of the potential for a disastrous outbreak among inmates.  The elderly are most vulnerable, and the U.S. inmate population is aging.  Jails and prisons, crowded places where social distancing is nearly impossible, are breeding grounds for contagious disease.

“These prisons are bacteria factories,” said Rick Raemisch, a consultant and former executive director at the Colorado Department of Corrections. “I don’t think people understand the gravity of what’s going to happen if this runs in a prison, and I believe it’s inevitable.  “You’re going to see devastation that’s unbelievable.”...

While state prisons have resisted calls to release inmates, several large county and municipal jurisdictions have freed hundreds of jail inmates deemed low-risk, including seniors and those in poor health.  New Jersey plans to release as many as a thousand people from its county jails, including inmates jailed for probation violations and those sentenced for low-level offenses.  Democratic Mayor Bill de Blasio said Monday that New York City may release more than 200 inmates, according to news reports.  Los Angeles County and Ohio’s Cuyahoga County also have released prisoners.

Prisoner advocacy groups in more than a half-dozen states, including Texas, New York, Illinois, Pennsylvania, Indiana and Michigan, have called on governors to release state prisoners, especially elderly inmates, through compassionate release or medical furlough....

State prison systems so far have sidestepped requests to release inmates. Instead, they are disinfecting more frequently and tightening screening at prison entrances, among other measures....  The prison system is emphasizing hand-washing and doing what it can to promote social distancing despite the obvious limitations in a prison environment, said Jeremy Desel, spokesman for the Texas Department of Criminal Justice. “We’re doing everything we can in our power to socially distance folks as much as possible by slowing down offender movements and various other techniques,” he said, “but given the circumstances there will be times when there will be more people in one place than anybody would like.”...

Long before the emergence of the coronavirus, prison officials and state lawmakers across the country were concerned about elderly prisoners.  Patrick O'Daniel, chairman of the Texas Board of Criminal Justice, told board members in late February that the number of Texas inmates 55 or older is growing by nearly a thousand a year and has doubled over the past decade.

The aging baby boomers now comprise nearly 15% of the more than 140,200 men and women in Texas prisons. Nationwide, nearly 12% of inmates in state and federal prisons are older than 55.  Like their counterparts on the outside, elderly prisoners make up the lion’s share of health care costs, putting intense pressure on government budgets.  Over a 10-year period ending in 2019, health care costs for the elderly in Texas prisons increased from $51.8 million to $114.7 million, encompassing often complicated and costly treatments for illnesses such as cancer, diabetes, kidney disease, hepatitis and a whole host of other aging-related ailments.

Prior coronavirus posts highlighting need for urgent action on imprisonment amidst epidemic:

March 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Headlines and news stories from jails and prisons in every part of the United States

I fear that I will not have the time and energy this morning to capture a recent headline and story about the coronavirus impact on jails and prison from every single US state.  But, aided greatly by a round-up this morning in The Opening Statement from The Marshal Project, I think I can at least hit every part of our great nation:

National: "'Disaster waiting to happen': Thousands of inmates released as jails and prisons face coronavirus threat"

Federal: "Sick Staff, Inmate Transfers, and No Tests: How the U.S. Is Failing Federal Inmates as Coronavirus Hits"

 

Arizona: "Concern spreads over potential COVID-19 outbreak in state prisons"

California: "1,700 inmates released from Los Angeles County in response to coronavirus outbreak"

Connecticut: "The DOC, with a first COVID-19 case, still hasn’t announced a plan for inmate release"

Florida: "Florida prison employee tests positive for COVID-19"

 

Georgia: "DeKalb Jail inmate, employee test positive for COVID-19"

Kentucky: "Chief justice pleads for Kentucky inmate releases ahead of COVID-19, but progress slow"

Louisiana: "More positive coronavirus cases for New Orleans jail staff as inmates await results"

Iowa: "Iowa’s prisons will accelerate release of approved inmates to mitigate COVID-19"

 

Massachusetts: "COVID-19 cases at Bridgewater prison facility up to 10"

New Jersey: "Inmate at Morris County Jail tests positive for COVID-19"

New York: "New York to release 300 nonviolent Rikers inmates amid pandemic"

Oklahoma: "Over 200 nonviolent offenders released from Oklahoma County jail to limit COVID-19 spread"

 

Pennsylvania: "Prison guards protest transfers of prisoners from covid-19 hotspots to central PA"

South Dakota: "8 inmates leave S.D. prison after another prisoner tests positive for COVID-19"

Tennessee: "25 People Released From Davidson County Jail in Anti-Outbreak Effort"

Texas: "Coronavirus hits Texas prisons with first inmate case confirmed"

Washington: "14 inmates escape from Washington jail amid COVID-19 shelter-in-place order"

 

All these headlines, capturing developments nationwide and in 17 states, surely captures only a tiny slice of everything going on these crazy days in incarceration nation. Whew.  Sigh.  Sniff.

March 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Tuesday, March 24, 2020

Broad coalition urges Prez Trump to commute the federal sentences in response to coronavirus crisis

A whole bunch of public policy and civil rights groups have just sent this short letter urging Prez Trump to utilize his clemency power to commute the federal sentences of those "who could benefit from compassionate release, and other populations that are exceptionally vulnerable to coronavirus."  The letter details the COVID-19 emergency emerging in prisons and jails and closes with this ask:

We call upon you to commute the federal sentences of individuals who could benefit from compassionate release, including those who: 

  • Are older and elderly; 
  • Have a terminal medical condition; 
  • Have a debilitated medical condition; 
  • Suffer from a chronic medical condition; or 
  • Have suffered a death of a family member who is a primary caregiver to a child of the person incarcerated.

In addition to commuting the federal sentences of individuals who could benefit from compassionate release, we call upon you to use your clemency power to release those incarcerated at the federal level who are elderly and/or particularly vulnerable to serious illness or death from COVID-19 due to underlying health conditions as identified by the Centers for Disease Control and Prevention, including: 

  • Blood disorders; 
  • Chronic kidney disease; 
  • Chronic liver disease; 
  • Compromised immune system (immunosuppression); 
  • Current or recent pregnancy; 
  • Endocrine disorders; 
  • Metabolic disorders; 
  • Heart disease; 
  • Lung disease; 
  • Neurological and neurologic and neurodevelopment conditions; and 
  • Hypertension.

As we work to combat the spread of the coronavirus pandemic, it is essential that we not forget about the millions of Americans currently incarcerated and working in jails, prisons and detention centers, and that we take action to protect those who are the most vulnerable to COVID-19. Again, we ask you to commute the sentences for those populations at the federal level most vulnerable to coronavirus.

UPDATE: It is worth noting here that this call to Prez Trump to use his clemency powers to move people out of federal prisons could and should also be directed, on similar terms, to Governors across the nation.  Helpfully, I just got word from Margy Love that the Collateral Consequences Resource Center has a new resource on state clemency posers. This CCRC post provides the details and other helpful links:

At this time of pandemic, we have been following the discussions of how jail, prison, and immigration detention conditions are highly concerning, including the very useful collection of links provided by Professor Doug Berman, the demands published by advocacy organizations, and the collection of policy responses by the Prison Policy Institute.  We agree that every available legal mechanism must be enlisted to secure the release of prisoners and detainees who pose little or no threat to public safety, and whose health and safety are themselves severely threatened by their enforced captivity.  This includes the great constitutional powers given to governors and pardon boards.  We therefore commend our newly revised pardon resources to advocates and policy makers to support their advocacy and action.

While our pardon-related research focuses primarily on how the power is used to restore rights and status to those who are no longer in prison, much of our information about how the pardon process is structured and operates is relevant to how the power might be used (or is already being used) to commute prison sentences during the pandemic.  Our revised pardon resources are part of a major revision of the CCRC Restoration of Rights Project, not only to make sure its information is current in light of the many recent changes in the law, but also reorganizing and revising its resources for clarity and easier access.  In the process, we have updated and revamped our state-by-state material on how the pardon process operates in each jurisdiction, noting that the process has become more regular and productive in a few states in the past several years.

Our 50-state pardon comparison is organized into four sections:

  • Section 1 provides a chart comparing pardon policy and practice across jurisdictions.
  • Section 2 lists jurisdictions by frequency and regularity of their pardon grants.
  • Section 3 sorts jurisdictions by how the administration of the power is structured.
  • Section 4 provides state-by-state summaries of pardon policy and practice, with links to more detailed analysis and legal citations.

March 24, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"How Coronavirus is Disrupting the Death Penalty"

The title of this post is the headline of this new Marshall Project piece highlighting some topics I have been tracking recently.  Here are excerpts:

With a signature from Gov. Jared Polis, Colorado on Monday became the 22nd state to abolish the death penalty. But the governor’s long-planned intervention comes at a moment when capital punishment is already at a standstill across the nation for a very different reason: coronavirus.

The growing global pandemic—reaching 163 countries and more than 15,000 deaths—has at least temporarily saved two condemned men from execution in Texas, with more delays sought elsewhere. The pandemic has also stopped trials in which the death penalty was being sought. It has even upended the process for defense attorneys to try to exonerate their clients facing capital punishment.

“Almost every aspect of legal representation is at a halt in the judicial system,” said Amanda Marzullo, a consultant with the Innocence Project. “People are effectively unable to prepare and investigate their cases.”...

Executions are frequently put on hold due to Supreme Court decisions and lethal injection drug shortages, but rarely do natural events play such a disruptive role. One example was in 2017, when Juan Castillo’s execution was delayed after Hurricane Harvey hit Texas. (He was executed the following year despite his long-standing claims of innocence.)

And more stays may be coming. Last week, lawyers for Oscar Smith asked the Tennessee Supreme Court to delay his June 4 execution. They said they plan to ask Gov. Bill Lee for clemency but cannot put together an application “without putting themselves and others at risk” of contracting the virus. Executions are also scheduled for May in Missouri and June in Ohio, although the latter state lacks lethal injection drugs. Several other defense lawyers told The Marshall Project they plan to ask for delays.

With trials halted around the country, the number of new death sentences will drop, at least temporarily. Even before Colorado’s governor signed the abolition bill, a judge in Adams County postponed the trial of Dreion Dearing, who was facing a death sentence for the murder of Deputy Heath Gumm in 2018. (Dearing can still face death despite the repeal due to the timing of his charges, according to the Denver Post.) Judge Mark Warner had previously been criticized by defense lawyers for pushing the trial forward and having 250 potential jurors gather at one time, even as other courts were closing down. In Texas, jury selection for a death penalty trial in San Antonio was halted for 30 days.

In Tarrant County, Texas, prosecutors agreed to postpone the trial of Reginald Kimbro, who faces a potential death sentence if he’s convicted of the rapes and murders of two young women in 2017. Kimbro’s lawyer Steve Gordon said many jurors were elderly, and witnesses were slated to travel from Arkansas....

The slowdown caused by the COVID-19 crisis is even affecting cases that would not go to trial for months. People who face a death sentence typically work with a defense investigator whose job is to gather information to sway the jury towards mercy. These specialists do most of their interviewing in person, because it allows them to gain sensitive information about mental health issues and trauma. “If you knock on somebody’s door during a pandemic, you’re creating more barriers to relationship-building,” said Elizabeth Vartkessian, who oversees investigations for the non-profit Advancing Real Change, Inc.

There is at least one notable exception to this slowdown, which will test how long the disruption may last. Last week, a judge in Corpus Christi, Texas, approved a request from the Nueces County District Attorney's office and set an execution date for John Ramirez, who was convicted of fatally stabbing a man during a 2004 robbery. Ramirez is scheduled to die on Sept. 9.

Prior recent related posts:

March 24, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Bipartisan group of Senators write to DOJ and BOP to urge taking "necessary steps" to protect "most vulnerable" prison staff and inmates

Late yesterday, fourteen US Senators (including some from both political parties) wrote this short letter to Attorney General William Barr and BOP Director Michael Carvajal urging action to protect vulnerable federal prison staff and inmates at this time of the coronavirus outbreak (also available here).   Though the letter runs only five substantive paragraphs, nearly every passage includes language that lawyers might want to utilize in any filings seeking to keep defendants from going in to, or seeking to get inmates out of, federal facilities.  Here is the full letter (with key phrases bolded):

On March 13, 2020, President Trump declared a state of emergency concerning the novel coronavirus disease (COVID-19) outbreak. We write to express our serious concern for the health and wellbeing of federal prison staff and inmates in Federal custody, especially those who are most vulnerable to infection, and to urge you to take necessary steps to protect them, particularly by using existing authorities under the First Step Act (FSA).

We have reviewed the Federal Bureau of Prisons (BOP) COVID-19 Action Plan, which covers health screening, limits on outside visits, staff travel, and inmate transfers, but notably does not include any measures to protect the most vulnerable staff and inmates.  The Centers for Disease Control and Prevention (CDC) has issued guidance indicating that adults over 60 years old and individuals with chronic medical conditions, such as lung disease, heart disease, and diabetes, are at a higher risk of contracting COVID-19 and suffering more severe illness and death.  The CDC has advised these individuals to avoid crowds and stay at home as much as possible.  Conditions of confinement do not afford individuals the opportunity to take proactive steps to protect themselves, and prisons often create the ideal environment for the transmission of contagious disease. For these reasons, it is important that consistent with the law and taking into account public safety and health concerns, that the most vulnerable inmates are released or transferred to home confinement, if possible.

COVID-19 is an unprecedented crisis for our nation, including our inmate population.  However, Congress has equipped BOP and the Department of Justice (DOJ) with tools to use to maximize their efforts to overcome these daunting times.  For example, the FSA reauthorized and expanded the Elderly Home Detention Pilot Program to place eligible elderly and terminally ill inmates in home confinement.  This pilot program permits the Bureau of Prisons (BOP) to transfer nonviolent offenders to home detention if they are sixty years or older and have served 2/3 of their term of imprisonment, among other requirements.  We call on BOP and DOJ to review and expedite the current cases where the Elderly Home Detention Pilot Program would allow for an early transfer – where appropriate – of terminally ill and eligible elderly inmates to home confinement.  Since elderly offenders are the most vulnerable to infection and the least likely to reoffend, we urge BOP’s speedy review and processing of these cases for early release.

In addition, the FSA reformed the compassionate release program for people facing “extraordinary and compelling” circumstances. However, since enactment, BOP has opposed the vast majority of petitions.  According to a report recently filed by BOP, in 2019, 1,735 requests for release were initiated by or on behalf of inmates, of which 1,501 were denied by wardens and 226 were forwarded to the BOP Director.  Of these 226, BOP approved only 55 requests and denied 171 requests.  We urge you to immediately issue guidance requiring that “extraordinary and compelling” circumstances be interpreted more broadly and clarify that such circumstances include vulnerability to COVID-19.

Finally, Section 602 of the FSA directed BOP, to the extent practicable, to transfer lower-risk inmates to home confinement for the maximum amount of time permitted under the law, which is the shorter of 10 percent of the term of imprisonment or six months.  Given the current state of emergency, we urge you to consider the use of this authority to quickly transfer non-violent offenders who are at high risk for suffering complications from COVID-19 to home confinement.

March 24, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, March 23, 2020

Notable recent (pre-COVID) grants of sentence reductions from coast to coast using § 3582(c)(1)(A) ... as FAMM urges thousand more filings in response to coronavirus

As regular readers know, in lots of prior posts since enactment of the FIRST STEP Act, I have made much of a key provision that Act which allows 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.  I have long considered this provision a big deal because I have long thought that, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

A few weeks ago before the COVID-19 outbreak became the most urgent of stories, I was starting to notice on Westlaw a growing number of rulings granting sentencing reductions using 3582(c)(1)(A).  I was drafting a detailed post on this topic when COVID started taking up all of my attention, but it now seems wise to just list some of the positive cases from the last few weeks:

United States v. O’Bryan, No. 96-10076-03-JTM, 2020 WL 869475 (D. Kan. Feb 21, 2020)

United States v. Mondaca, No. 89-CR-0655 DMS, 2020 WL 1029024 (S.D. Cal. March 3, 2020)

United States v. Young, No. 2:00-cr-00002-1, 2020 WL 1047815 (M.D. Tenn. March 4, 2020)

United States v. Davis, No. PJM 00-424-2, 2020 WL 1083158 (D. Md. March 5, 2020)

United States v. Perez, No. No. 88-10094-1-JTM, 2020 WL 1180719 (D. Kansas March 11, 2020)

United States v. Redd, No. 1:97-cr-00006-AJT 2020 WL 1248493 (E.D. Va. Mar. 16, 2020)

I felt compelled to post this list tonight because of notable news from FAMM detailed in this press release titled "FAMM urges most vulnerable people in federal prison to immediately apply for compassionate release":

 In response to the worldwide COVID-19 pandemic, FAMM sent a letter to nearly 40,000 federal prisoners today encouraging all federal prisoners who are most vulnerable to immediately apply for early release.  FAMM is working with the National Association of Criminal Defense Lawyers, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs to assist those who apply.

“There are thousands of sick and elderly people in federal prison whose continued incarceration serves no public safety purpose.  This same population is the most vulnerable to coronavirus,” said FAMM President Kevin Ring.  “They were not sentenced to death, and they should be released immediately.”

Ring noted that people in prison cannot take the same precautions that health experts have recommended to avoid contracting the virus.  People in federal prison can’t practice social distancing.  Moreover, the prisons are not clean and many do not have adequate medical care.

The Centers for Disease Control consider the most vulnerable to include people over 65 years old, and people with a condition that affects their lungs, heart, kidney, immune system, or who have another serious chronic medical condition.  There are more than 10,000 people in federal prison who are over 60 years old.  Many are in poor health.

FAMM worked with Congress to expand the compassionate release program in the First Step Act.  One of the most important reforms gave people in prison the right to go to federal court and ask a judge to grant compassionate release if the Bureau of Prisons either denies a request or does not answer a request within 30 days.

“We are urging at-risk people to make the request to their wardens immediately.  That starts the clock.  If Congress and the president don’t act before then, the courts will have the chance to do the right thing,” said Ring.

March 23, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

With lives at stake, when will we start to see mass clemency and compassionate release?

I have been pleased to see some considerable action at the local level to try to reduce the jail population amidst the coronavirus crisis (most notably now via state Supreme Court mandate in New Jersey).  But, because everyone should realize that it is essential for the health of prison staff and their families, as well as for prisoners, for there to be smart efforts to reduce prison populations amidst this global pandemic, I am troubled that we are yet to see any mass clemency and compassionate release activity at either the federal or state level.  Because our nation's criminal justice system is defined by mass incarceration, the current public health crisis demands mass clemency and compassionate release.

Of course, if releasing elderly and unhealthy at-risk prisoners posed a major public safety concern, I could understand slow and deliberative action on these fronts.  But, a few years ago the Brennan Center examined our prison populations and reached the conclusion in this big report that "nearly 40 percent of the U.S. prison population — 576,000 people — are behind bars with no compelling public safety reason."  I am urging "big-time" clemency and compassionate release activity at every level of government because that's what it will take to even get a small percentage of this population home in short order so that they do not continue to contribute to the public safety hazards created in prisons where social distancing is impossible.

Helpfully, I am not the only one urging mass clemency and compassionate release activity, and here are a couple recent op-eds focused on specific (hard-hit) states:

From Jose Saldana, "Clemency is needed for incarcerated New Yorkers vulnerable to coronavirus"

From Nancy Gertner and John Reinstein, "Compassionate release now for prisoners vulnerable to the coronavirus"

For those new to these issues, this lengthy new Quartz piece, "Coronavirus risk looms large for America’s elderly and sick prison population," provides a terrific short overview of some of these issues with an emphasis on our graying prison population and the costs and challenges elderly offenders present even without the COVID-19 disaster.

Wonderfully, NYU's Center on the Administration of Criminal Law has created a great new clemency resource here to highlight that every jurisdiction has the means to address these matters using historic and existing clemency powers.  Here is the NYU discussion of its resource and a link:

Because of the crowded nature of correctional facilities and the limited resources available there, people incarcerated in jails and prisons are exceptionally vulnerable to the spread of COVID-19. Many facilities house significant elderly populations as well as other people with underlying conditions that make them more vulnerable to serious complications and/or death from the virus. 

One way to mitigate the mounting crisis in correctional facilities is by using executive clemency. Many state constitutions vest the governor with broad authority to grant relief without the need for legislation or other actors.  While governors can grant pardons or commutations that would have a permanent effect, they can also choose to issue reprieves, which are temporary delays in the imposition or resumption of a sentence.  By using reprieves to temporarily release people from prison, we may spare them from potentially life-threatening illness without affecting the length of their sentence.  It allows the system to press pause on a sentence until the danger passes. 

The Center has assembled a working document that catalogues the legal authority to grant reprieves in all fifty states.  We encourage anybody with state-specific knowledge to provide feedback, suggestions, or additions regarding the process of granting reprieves in a given jurisdiction by emailing us at prosecutioncenter@nyu.edu. 

Prior coronavirus posts highlighting need for urgent action on imprisonment amidst epidemic:

UPDATE: After completing this post, I just happened to come across these two additional recent op-eds on this front:

From John Mills, "Release prisoners to address the COVID-19 crisis"

From Clem Murray, "To flatten the curve, Philadelphia should release all non-violent prisoners now"

March 23, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)