Tuesday, January 11, 2022

"Compassionate Release as Compassionate Decarceration: State Influence on Federal Compassionate Release and the Unfinished Federal Reform"

The title of this post is the title of this new paper authored by Chun Hin Jeffrey Tsoi now available via SSRN. Here is its abstract:

The First Step Act's (FSA) compassionate release reform was a “modest but necessary” step; the pandemic and the threat it posed to the incarcerated population ought to prompt reflections on what the next steps should be.  This Essay is intended to serve as both a brief historical review of state influence on federal compassionate release, and as a reflection on the unfinished compassionate release reform in terms of DOJ’s execution. 

Part I briefly surveys the trajectory of 18 U.S.C. § 3582(c) from the Sentencing Reform Act (SRA) to the Prisoner-initiated & Court-ordered (PICO) compassionate release provision in the FSA, and its application in the pandemic.  Part II supplements the compassionate release literature by exploring the history of PICO compassionate release in state law as a backdrop of the long-awaited federal reform allowing prisoners to petition for their own release, and it proposes that state practices, especially that of New Jersey, might have influenced the introduction and passage of FSA in part through the Model Penal Code.  Part III suggests that the arc of compassionate release reform in federal law is nevertheless unfinished, with the Department of Justice’s (DOJ) objection practices being part of the necessary change.  Using data and cases from the District of Columbia, whose PICO compassionate release statute is modeled after federal law and clearly intended as a response to the pandemic, this Essay proposes that the DOJ's perspective and practices must change to adapt to the essential purpose of compassionate release: addressing mass incarceration in America with compassion.

January 11, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, January 04, 2022

Senator Cotton criticizes new OLC opinion on CARES home confinement and asks AG Garland lots of follow-up questions

Though the season of the Grinch may be over, US Senator Tom Cotton is starting the new year full of grinchy grouchiness about various criminal justice issues.  I noted here his recent foolish op-ed fretting about a "jailbreak" and an "under-incarceration crisis," and now a helpful colleague made sure I did not miss this press release from the Senator's office titled "Cotton Demands Answers from DOJ About Releasing Criminals to Home Confinement."  Here is how the release starts:

Senator Tom Cotton (R-Arkansas) today wrote to U.S. Attorney General Merrick Garland regarding the Department of Justice’s recent decision to ignore the clear limits placed by Congress on pandemic-related home confinement of convicted federal criminals.

In part, Cotton wrote, “The Department’s Office of Legal Counsel correctly concluded in January 2021 that the only tenable reading of the CARES Act is that the Bureau of Prisons (BOP) could only exercise expanded home confinement placement authority during the coronavirus national emergency, and that the law requires that the BOP return such inmates to prison and follow the limits of longstanding federal law following the end of the emergency.”

“Unfortunately, it seems that you have now decided to bow to the pressure from political activists rather than do your job.  The Office of Legal Counsel, at your direction, issued a slapdash opinion reversing itself in December 2021.  That new opinion is not based on the law, but rather on the policy goals of criminal leniency,” Cotton continued.

The full three-page letter may be found here at this link, and there is more Tom Cotton "tough and tougher" bluster at the start of the letter.  But the questions that make up the heart of the letter are intriguing on a number of fronts, and I would be especially interested to see if and how AG Garland and his team responds to these closing queries:

Please provide a list of all inmates who are currently placed on home confinement under the temporary authority granted by the CARES Act, broken down by primary offense, total sentence length, and the number of months remaining under their sentence. 

How many inmates who were placed on home confinement under the temporary authority granted by the CARES Act have had their home confinement rescinded or have been rearrested for a new offense?  Please provide a description of the offenses for which any such inmates have been rearrested, or the reasons for which their home confinement was rescinded.

Just a few of many prior related posts:

January 4, 2022 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Monday, January 03, 2022

Senator Cotton leans into political foolishness rather than serious policy issues in latest "jailbreak" commentary

Senator Tom Cotton is always eager to provide a "tough-and-tougher" perspective on criminal justice issues, and he has long responded to advocacy against mass incarceration by claiming that the US actually has an "under-incarceration problem."  Some time ago, I was described at least some of his takes on criminal justice issues as at least somewhat thoughtful, but more recently it seems Senator Cotton has been content to make op-ed claims which are quite suspect and have been described as "horrifically dishonest" and are disconnected from political and social reality.  His latest commentary, published here today at Fox News, sets the bar especially low to start 2022 because he turns serious criminal justice policy issues into political posturing.  Here are some key parts of this piece (with a few phrases highlighted for follow-up commentary): 

In 2020, our nation’s state and federal prison populations plummeted 15% to the lowest levels since 1992 — at the same time, murders skyrocketed nearly 30% to the highest level since 1998.  By the middle of last year, local jail populations similarly shrank by an astonishing 25%.  In raw numbers, state and federal authorities reduced their prison populations by 214,000 in 2020 and local authorities reduced their jail populations by 185,000 compared to 2019.  This is the worst jailbreak in American history and was committed in broad daylight.  Our nation has paid the price.

So-called "coronavirus protocols" caused most of these reductions.  Last year, the federal government sent thousands of inmates home in response to the pandemic.  Rikers Island in New York City released 1,500 criminals, and Chicago’s largest prison released a quarter of its inmates.

Democrat-run states also released convicted murderers and an untold number of violent felons in the name of "public health."  In Virginia, an accused rapist murdered his accuser.  In Florida, a documented gang member murdered a 28-year-old.  In my home state of Arkansas, a career criminal murdered a police officer.  What did these murderers have in common?  They had all been released early from jail due to concerns about coronavirus....

The rash of early releases is not the entire story.  The drop in incarceration in 2020 was also fueled by a shocking 40% nationwide decline in the admission of newly sentenced criminals — which indicates a massive decrease in prosecutions.  In New York, there was an even starker 60% drop in admission of newly sentenced criminals.  In California, there was a 66% drop, the biggest decline of any state.  This concentrated drop in prosecutions is virtually unexplainable, except by the proliferation of progressive "Soros prosecutors" and a shrinking willingness to hold the guilty accountable.

There were certainly plenty of crimes to prosecute last year when over 100,000 Americans died from homicide and drug overdoses and the nation was wracked with the worst rioting in a generation. Initial data also shows that California experienced a 31% increase in murders, while New York experienced a 142% increase in gang killings and a 42% increase in murders overall.... This under-incarceration crisis must end.

All serious people should be taking seriously how the COVID pandemic has been impacting US crime rates, criminal justice case processing, and prison and jail populations. But talking about these issues in terms of "Democrat-run states" and "the proliferation of progressive Soros prosecutors" is so foolish simply in light of the data. 

For starters, it is notable and amusing that, right after complaining about releases in "Democrat-run states," Senator Cotton then gives examples of crimes in GOP-run states of Arkansas and Florida.  More systematically, the uptick in murders in 2020 was a nationwide phenomenon as this Pew report highlights, and many GOP states had the highest uptick in murder rates: "At least eight states saw their murder rates rise by 40% or more last year, with the largest percentage increases in Montana (+84%), South Dakota (+81%), Delaware (+62%) and Kentucky (+61%), according to the CDC."  (Indeed, this US News piece reveals that the top seven states in terms of homicide rates in 2020 were all "red" states.)

Turning toward prison populations and drops in prosecutions, this dynamic is again not an issue involving only "blue" states and "progressive Soros prosecutors."  Senator Cotton appears to be cherry picking some numbers from this recent BJS report titled "Prisoners in 2020 – Statistical Tables."  But Figure 3 of that report shows that the top four jurisdictions with biggest 2020 reductions in prison population were, in order, California, the federal system, Texas and Florida.  In 2020, three of those four jurisdictions were under GOP control.  Similarly, though I do not recall Prez Trump appointing any "progressive Soros prosecutors," the data show that the federal system saw a 40% decline in prison admissions; "red" states ranging from Florida to Idaho to Indiana to Kentucky to Kansas to South Carolina all saw above-national-average declines in the admission of sentenced prisoners.

Political foolishness aside, if Senator Cotton really wants to get serious about pandemic era crime and punishment issues, why is he not seriously trying to help develop more and deeper data about all these important and complicated trends and others.  Exactly what types of offenders have been released during pandemic?  What types of cases were prosecuted less in 2020?  Have these trends continued through 2021?  We have decent (but not great) homicide data from local police departments, but we need much better and richer data.  Notably, in 2022, Senator Cotton still references "Initial data" from 2020 on homicides.  Is this really the best we can do at the start of 2022?  And how about better data on other crimes? 

Moreover, despite two more big COVID waves in 2021, we have very little data in real-time about the national prison population (this VERA accounting as of March 2021 is the last data I have seen).  And reports suggest declines in prison populations have slowed or stopped, while jail populations have risen through 2021.  Notably, we do have real time data from the federal BOP revealing that there are now "157,654 Total Federal Inmates," which is over 6000 more federal prisoners compared to the first full day of the Biden Administration when BOP reported  151,646.  Since the federal prison population went down nearly 38,000 persons(!) under Prez Trump, and now has gone up over 6,000 persons during the first year of the Biden Administration, maybe Senator Cotton ought to consider if he should target a very different ""jailbreak" bogey-man than "progressive Soros prosecutors" is he really thinks we have an "under-incarceration crisis."  Sigh.

January 3, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6)

Wednesday, December 22, 2021

More timely new Prison Policy Initiative briefings on the many challenges of incarceration

I am often not able to keep up with all the great "briefings" produced by the folks at Prison Policy Initiative. Last month in this post, I noted a set of important recent work detailing ugly economic realities and disparities intertwined with prison experience. I am pleased now to have a chance to flag three more important and timely new briefings about other incarceration realities:

"Research roundup: The positive impacts of family contact for incarcerated people and their families: The research is clear: visitation, mail, phone, and other forms of contact between incarcerated people and their families have positive impacts for everyone — including better health, reduced recidivism, and improvement in school. Here’s a roundup of over 50 years of empirical study, and a reminder that prisons and jails often pay little more than lip service to the benefits of family contact."

"Since you asked: What information is available about COVID-19 and vaccinations in prison now?: Despite the new variants of COVID-19, prison systems are failing to publish up-to-date and necessary data and we don’t know much about booster shot access."

"Recent studies shed light on what reproductive 'choice' looks like in prisons and jails: States that are otherwise hostile to abortion rights are especially likely to make it difficult for incarcerated people."

December 22, 2021 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Tuesday, December 21, 2021

New OLC opinion memo concluding CARES Act "grants BOP discretion to permit prisoners in extended home confinement to remain there"

Regular readers are familiar with the legal issues surrounding what I have called the "home confinement cohort," those people who had been released due to COVID concerns from federal prison to serve their sentences on home confinement pursuant to the CARES Act, but who were at risk of being sent back to prison at the end of the pandemic because the US Justice Department's Office of Legal Counsel (OLC) issued a 15-page opinion on Jan 15, 2021 that the CARES Act required as much. But now that group has been given a notable holiday present in the form of a a new OLC 15-page opinion that concludes that "a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there." Here is a key starting and closing paragraph from the new memo:

We do not lightly depart from our precedents, and we have given the views expressed in our prior opinion careful and respectful consideration. Based upon a thorough review of the relevant text, structure, purpose, and legislative history — and a careful consideration of BOP’s analysis of its own authority — we conclude that the better reading of section 12003(b)(2) and BOP’s preexisting authorities does not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends.  Even if the statute is considered ambiguous, BOP’s view represents a reasonable reading thatshould be accorded deference in future litigation challenging its interpretation...

For the reasons described in Part II, we conclude that our prior opinion failed to address important and persuasive counterarguments. We now believe that a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there.  Even if the statute were considered ambiguous, BOP’s view represents a reasonable reading that should be accorded deference in future litigation challenging its interpretation.  It accords with section 12003(b)(2)’s text, structure, and purpose, and it also makes eminent sense in light of the penological goals of home confinement.  BOP’s interpretation avoids requiring the agency to disrupt the community connections these prisoners have developed in aid of their eventual reentry. Instead, it allows the agency to use its expertise to recall prisoners only where penologically justified, and avoids a blanket, one-size-fits-all policy.  We thus depart from the view of our January 2021 opinion concerning section 12003(b)(2).

I certainly think this new OLC opinion reaches a much better policy outcome, and one that certainly seems consistent with both the goals and the text of the CARES Act.  I will need more time to read and re-read this new OLC effort before reaching a firm conclusion on its legal analysis, but I recall some months ago being moved by this long letter from advocates making the legal case for reconsidering the original OLC opinion.  

interestingly Attorney General Garland issued this statement along with the new OLC memo (with my emphasis added): "Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules. In light of today’s Office of Legal Counsel opinion, I have directed that the Department engage in a rulemaking process to ensure that the Department lives up to the letter and the spirit of the CARES Act.  We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”  This statement by AG Garland suggests that DOJ is now going to engage in "rulemaking" that will create a set of requirements or criteria about who may get to stay on home confinement and who might be returned to prison after the pandemic ends.  I am not sure how that rulemaking process will work, but I am sure the AG statement is hinting (or flat-out saying) that there will still be some in the "home confinement cohort" who may need to worry about eventually heading back to federal prison.

Some of many prior related posts:

December 21, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14)

Monday, December 20, 2021

ACLU releases new poll showing broad support for clemency for home confinement cohort

This new press release reports that "the American Civil Liberties Union released a poll today showing broad bipartisan support for President Joe Biden to issue clemency to those who were selected to be transferred home under the CARES Act."  Here are more details from the press release:

During the pandemic, thousands of people have been released from prison to finish their sentences on home confinement, many of whom are elderly or especially vulnerable to COVID-19.  Now, thousands are at risk of being sent back to prison when the pandemic recedes if President Biden does not take action.  Sending all of these people back to federal prison would be the single largest act of incarceration in U.S. history....

Among the poll’s findings:

  • 63 percent of voters nationally support clemency for those who are serving their sentences at home due to COVID-19;
  • Among voters in swing House districts, 70 percent of voters support allowing those who were transferred home to serve the reminder of their sentences at home to help prevent the spread of COVID-19;
  • 68 percent of voters nationwide and 58 percent of voters in swing House districts agree that it’s not fair to return people to prison after they have been successfully released to their families and communities and re-entered society;
  • 53 percent of Republican voters agree that it’s unfair to release people back to their families and communities and then return them to prison;
  • 64 percent of voters nationwide — including 84 percent of Democrats — support using the president’s power of clemency to end or shorten prison sentences of people deemed safe for release; and
  • While only 38 percent of independents approve of Biden’s job as president, a majority of them (57 percent) say they would support the president using clemency.

I am a bit surprised that these numbers are not stronger, though it is unclear from the ACLU "fact sheet" just how the poll questions were presented and how much the average poll participant fully knows or understands about all those in the "CARES home confinement cohort."   In fact, I still have not seen a lot of detailed data on just how many persons are still serving time on home confinement whose sentences goes beyond 2022 and would be at risk of a return to prison if the pandemic (miraculously) ends in the next few months.  I have also not seen much information about the sentences still to serve, the offenses of conviction and other details regarding exactly who would benefit from mass clemency om behalf of the home confinement cohort.  Though these details likely would not undermine my general support for bringing relief to this low-risk group, they might shape my view of whether everyone ought to have their sentences commuted to time served or if some perhaps ought to be receive some other form of relief in some cases.

Given that we are now into the final holiday weeks of the year, I am now getting close to giving up any hope that  that Prez Biden will grant even a single clemency in 2021.  (Of course, holiday season clemencies late into December are not uncommon.  Four years ago today, for example, Prez Trump granted a commutation to Sholom Rubashkin.)  And, of course, the omicron surge of the COVID pandemic now suggests that we are clearly many months away, and perhaps even years away, from a return to normal BOP operations when the CARES home confinement cohort would be at risk of a return to prison.  All these realities lead me to think we will be discussing these issues (and doing more polling?) well into 2022.

Some of many prior related posts:

December 20, 2021 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, December 15, 2021

New BJS report documents big decrease in prison admissions drove 15% imprisonment rate decline in 2020

The Bureau of Justice Statistics has released its latest detailed accounting of US prison populations in this big report titled "Prisoners in 2020 – Statistical Tables."  The BJS data capture realities at yearend 2020, and thus reflects lots (but not all) COVID-era developments. Here is part of the start of the document, along with some of its "highlights":

In 2020, the number of persons held in state or federal prisons in the United States declined 15%, from 1,430,200 at yearend 2019 to 1,215,800 at yearend 2020. Only Alaska showed an increase (2%) in its prison population, while other jurisdictions showed declines of 7% to 31%.  The number of persons sentenced to more than 1 year in state or federal prison decreased from 1,379,800 in 2019 to 1,182,200 in 2020. Te combined state and federal imprisonment rate for 2020 (358 per 100,000 U.S. residents) represented a decrease of 15% from 2019 (419 per 100,000 U.S. residents) and a decrease of 28% from 2010 (500 per 100,000 U.S. residents).

The COVID-19 pandemic was largely responsible for the decline in prisoners under state and federal correctional authority.  Courts significantly altered operations for part or all of 2020, leading to delays in trials and/or sentencing of persons, and this was refected in the 40% decrease in admissions to state and federal prison from 2019.  While the number of releases also declined during 2020, releases occurred at a slower rate (10%) than the decrease in admissions. Although deaths represented 1% of the total releases from prison in 2020, the number prisoners that died under the jurisdiction of state or federal correctional authorities in 2020 (6,100 prisoners) increased 46% from 2019 (4,200).

From 2019 to 2020, the decline in the number of females sentenced to more than 1 year in prison (down 22%) outpaced the decrease in sentenced male prisoners (down 14%).  The imprisonment rates for U.S. residents in all racial or ethnic categories decreased by 12% to 16% from 2019 to 2020 and by at least 25% from 2010 to 2020.  The imprisonment rate for black U.S. residents decreased 37%, from 1,489 per 100,000 in 2010 to 938 per 100,000 in 2020.

Highlights

  • At yearend 2020, the number of prisoners under state or federal jurisdiction had decreased by 214,300 (down 15%) from 2019 and by 399,700 (down 25%) from 2009, the year the number of prisoners in the United States peaked.
  • Nine states showed decreases in the number of persons in prison of at least 20% from 2019 to 2020.
  • The prison populations of California, Texas, and the Federal Bureau of Prisons each declined by more than 22,500 from 2019 to 2020, accounting for 33% of the total prison population decrease.
  • In 2020, the imprisonment rate was 358 per 100,000 U.S. residents, the lowest since 1992.
  • From 2010 to 2020, the sentenced imprisonment rate for U.S. residents fell 37% among blacks; 32% among Hispanics; 32% among Asians, Native Hawaiians, and Other Pacifc Islanders; 26% among whites; and 25% among American Indians and Alaska Natives.
  • The number of admissions to federal prison (down 19,000) and to state prison (down 211,800) both declined by 40% from 2019 to 2020.
  • Releases from federal and state prisons decreased during 2020 (down 58,400 or almost 10% from 2019), but at a lower rate than the decrease in admissions.

I find it fascinating and telling that our nation actually did not release more people from prison during an historic pandemic, but it did have a harder time continuing to send a massive number of new people to prison. I am thus tempted to joke that, like lots of other segments of our society, America's mass incarceration system has also had "supply chain" issues that has impacted its usual functioning. Whether these patterns have continued into 2021 and beyond as this pandemic lingers on will be worth watching closely.

December 15, 2021 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, December 09, 2021

More research to support notion that spike in gun sales contributed to spike in gun crimes

As detailed in a number of prior posts (some linked below), because guns crimes but not many other crimes have spiked since the start of the pandemic, I have figured the pandemic spike in gun sales likely had some role in our modern crime trends.  This new piece from The Trace, headlined "New Data Suggests a Connection Between Pandemic Gun Sales and Increased Violence," seems to provide further support for my (simplistic?) thinking here.  Here are excerpts:

In March 2020, as the first COVID-19 outbreaks rippled across the U.S., Americans flocked to gun stores.  In total, civilians purchased some 19 million firearms over the next nine months — shattering every annual sales record.  At the same time, shootings across the country soared, with dozens of cities setting grim records for homicides.

As the pandemic progressed, and gun sales continued to climb alongside shootings, researchers have puzzled over the connection between these two intersecting trends.  Was the surge in violent crime related to the uptick in guns sold last year? We may not get a definitive answer to that question for years, but fresh data from the Bureau of Alcohol, Tobacco, Firearms and Explosives provides some of the first evidence that a relationship exists.

ATF data shows that in 2020, police recovered almost twice as many guns with a short “time-to-crime” — in this case, guns recovered within a year of their purchase — than in 2019.  Law enforcement officials generally view a short time-to-crime as an indicator that a firearm was purchased with criminal intent, since a gun with a narrow window between sale and recovery is less likely to have changed hands.  Altogether, more than 87,000 such guns were recovered in 2020, almost double the previous high.  And almost 68,000 guns were recovered in 2020 with a time-to-crime of less than seven months (meaning they were less likely to have been purchased the previous year).

Put more plainly, thousands of guns purchased in 2020 were almost immediately used in crimes — some as soon as a day after their sale. That was the case of the 9mm Beretta pistol purchased by an Arlington man from Uncle Dan’s Pawn Shop and Jewelry in Dallas, according to police records.  Officers seized the gun from its owner during a drug arrest 24 hours later. In another example, a Laredo, Texas, man assaulted his mother, then opened fire on police with his Smith & Wesson M&P 15-22 rifle in July 2020.  The gun had been purchased at a Cabela’s in Ammon, Idaho, just three months earlier.

“Overall, I think we can say that the gun sale surge may have contributed to a surge in crime,” said Julia Schleimer, a researcher in the Violence Prevention Research Program at the University of California, Davis, after reviewing the ATF’s data....

Researchers interviewed for this story cautioned that the number of guns recovered and traced by law enforcement does not always indicate the amount of gun crime in a given year.  In other words, factors driving increases in the amount of short-time-crime guns in the ATF’s data may be separate from the factors contributing to gun violence.

Still, no sales bump compares to 2020, when gun buying soared to unprecedented heights, Schleimer said, substantially widening the pool of recently purchased guns that could potentially turn up at crime scenes....

Jim Bueermann, a former California police chief who serves as a senior fellow at the George Mason University Center for Evidence-Based Crime Policy, said that while the new data may not provide conclusive evidence of a causal relationship between gun sales and gun crime, it does signal the importance of additional exploration.  “Data like this asks more questions than it answers, but this is a clarion call for criminologists to conduct research in this space.”

A few of many prior related posts:

December 9, 2021 in Gun policy and sentencing, Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (6)

Wednesday, December 08, 2021

US Sentencing Commission releases FY 2021 fourth quarter sentencing data showing growth in cases and in average sentence severity

US Sentencing Commission yesterday published here its latest quarterly data report which is described as a "4th Quarter Release, Preliminary Fiscal Year 2021 Data Through September 30, 2021." These new data provide another official accounting of how COVID realities appear to be continuing to reduce the usual total number of federal sentences imposed, though in this latest quarter we are seeing a return almost to pre-pandemic norms for most offense categories other than immigration cases.

Specifically, as reflected in Figure 2, in pre-pandemic years, quarterly cases sentenced generally averaged around 17,000 to 19,000. But in the three quarters closing out 2020, amid the worst early periods of the pandemic, there were only between about 12,000 and 13,000 cases being sentenced each quarter.  In the most recent quarter here reported, running from July 1 to September 30, 2021, it appears that more than 15,000 cases were sentenced in federal court.  Figure 2 also shows that, relative to pre-pandemic trends, the only major caseload decline now is in the total number of immigration cases sentenced while the other big federal case categories — Drug Trafficking, Firearms and Economic Offenses — now have the total number of cases sentenced in recent quarters not off that much from recent historical norms.

Consistent with what I have noted in prior post about pandemic era USSC data, these data continue to show a notable jump in the percentage of below-guideline variances granted in the last five quarters (as detailed in Figures 3 and 4).  But I suspect these data may reflect the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically rather than significantly different behaviors by sentencing judges.  And, notably, Figure 5 in this data run reveals that the "Average Guideline Minimum" as well as the "Average Sentence" were higher in this last quarter than in recent history, with a particularly notable uptick in these measures of average sentence severity over the last two quarters.

A few prior recent related post:

December 8, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Monday, December 06, 2021

Working through challenges facing CARES home confinement cohort

Charles Burnham and Jonathan Knowles have this new Law360 piece, headlined "Addressing Prison Risk After CARES Act Home Confinement," that talks through the possibilities (and challenges) for individuals placed on home confinement pursuant the CARES Act facing a potential future return to prison. Here are excerpts:

First, people with criminal convictions should remember that they retain political influence, even if many of them are unable to vote. Congress could resolve the issue by enacting law that clarifies the BOP's authority to maintain home confinement. Unfortunately, such legislation does not seem likely.

Many representatives and senators have requested that the Biden administration change its attitude, however, and continued pressure might push the administration to adopt a new approach. Presumably, most people with convictions would like to go further. As always, they can request a pardon from the president, but this process remains unlikely to succeed, except, perhaps, for those specifically invited to apply.

So, what other options are available?

Section 12003(b)(2) of the CARES Act is ambiguous as to what happens when the national emergency ends. It could be read as restricting the authority to place new people on home confinement, while preserving home confinement that has been granted.

There may be other grounds to challenge revocation of home confinement.  Whatever the strength of such challenges, there are numerous obstacles before a court will even hear them.  One issue is timing. In May, a woman named Dianthe Martinez-Brooks attempted to preemptively challenge the OLC memo that threatened to revoke her home confinement. Rather than answering her complaint, the BOP moved to dismiss, arguing that her case was not ripe because the BOP had not recalled her to prison.

At the time of writing, the court has yet to rule on the motion. Yet, if individuals on home confinement are not able to challenge their recall before it occurs, they may have to surrender to prison for many months while their cases are pending. People attempting such preemptive challenges should therefore be prepared to argue that their claims are ripe.

Another issue is the correct procedural vehicle for the challenge. Martinez-Brooks moved under the Administrative Procedure Act. In its motion to dismiss, the BOP asserted that such challenges cannot be brought under the APA because Congress has prohibited people who are incarcerated from using the APA to challenge the BOP's placement decisions.

At least one federal court has ruled that Title 18 of the U.S. Code, Section 3625, the statute cited by the government, prevented individuals who are incarcerated from challenging a denial of home confinement under the CARES Act. The District of New Jersey held as such on Sept. 1 in Goodchild v. Ortiz.

The BOP also asserted that the OLC memo at issue is not final agency action.  Finally, the BOP argues that relief under the APA is unavailable because Martinez-Brooks has another remedy — namely, the motion for compassionate release that she has previously filed.

The obvious alternative would seem to be habeas corpus. Indeed, from around 2005 to 2008, incarcerated individuals in some circuits successfully used habeas corpus to challenge the BOP's categorical denial of community confinement.  Federal courts have reached different conclusions, however, about whether they have jurisdiction to consider requests for home confinement under habeas corpus.

A preemptive challenge under habeas would also raise questions about where to file suit, and against whom.  Attorneys will need to review the law of their circuits carefully to ascertain whether suits can be brought under habeas or Title 42 of the U.S. Code, Section 1983, as well as whether individuals in prison are required to exhaust administrative remedies.

Yet another obstacle is whether the relief sought is within the court's power. In considering the claims of people who are incarcerated, courts have so far held that home confinement is solely within the discretion of the BOP.  Even so, some courts have left open the possibility that they could review a categorical denial of home confinement based on a misreading of a statute.

Finally, people who are incarcerated should be ready to seek relief under other avenues. Some may be within the one-year deadline to move to vacate, set aside or correct a sentence.  In many cases, however, the only option will be to seek compassionate release.

Courts have split as to grounds for compassionate release....

If possible, affected individuals should prepare motions now and submit them to the BOP as soon as it formally rescinds home confinement.  They may even be able to move the court earlier, asking the court to hold the issue in abeyance, although such a procedure would be risky.

Some of many prior related posts:

December 6, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, November 30, 2021

ACLU sues Biden Administration for data on CARES home confinement cohort

This ACLU press release reports on a notable new lawsuit: "The American Civil Liberties Union and ACLU of the District of Columbia today filed a lawsuit against the Department of Justice and the federal Bureau of Prisons under the Freedom of Information Act, seeking information about the federal government’s potential plan to force people placed on home confinement under the CARES Act back to prison after the pandemic subsides, even if they have followed all requirements of home confinement, been reunited with their families, and successfully reintegrated into society."  Here is more:  

Recognizing the dangers of COVID spread in federal prisons, Congress provided, as part of the March 2020 Coronavirus Aid, Relief, and Economic Security (CARES) Act, that the Bureau of Prisons (BOP) could place incarcerated people in home confinement as a way of reducing the population of crowded prisons and mitigating the virus’ spread.  As a result, BOP has placed more than 34,000 people — including many elderly or medically vulnerable — on home confinement since March 2020.  BOP evaluated every single person and determined that none of them would pose a threat to public safety while on home confinement. While most have now completed their sentences, 7,769 are on home confinement currently. Many have found gainful employment and have reunited with spouses, children, and other loved ones.

In June 2020, the BOP director and medical director testified in the Senate that people released under the CARES Act would be on home confinement “for service of the remainder of their sentences.”  But in the last days of the Trump administration, the Justice Department’s Office of Legal Counsel (OLC) issued a memorandum saying that when the pandemic ends, people on home confinement must be ordered back to prison unless they are in the final months of their sentences, even if they have been completely law-abiding.  Such an order would disrupt their lives and the lives of their loved ones and would destroy the successful efforts they have made to reintegrate into society.

The BOP has not disclosed how many of the 7,769 people currently on home confinement may be forced back to prison. Although the Biden administration has said that the president will consider granting clemency to a subset of this group so that they will not be sent back to prison, he has not yet granted any such petitions.  The ACLU has repeatedly called on President Biden to grant clemency to everyone who is on home confinement under CARES and following the rules.

Under the Freedom of Information Act, the ACLU requested records providing information about people BOP moved to home confinement under the CARES Act. The ACLU also asked for any final DOJ and BOP policies implementing the OLC memorandum.  The government failed to provide the materials by the deadline.  Our lawsuit, filed today in federal court in the District of Columbia by the ACLU and the ACLU of the District of Columbia, asks the court to enforce the law against the Justice Department and the BOP and order them to immediately produce the requested records.

The full complaint is available here

November 30, 2021 in Criminal Sentences Alternatives, Data on sentencing, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Wednesday, November 24, 2021

Notable new news reports about declining prison populations in two "New" states

I was intrigued to see two new local new reports about significant prison population declines in two states.  Here are headlined, links and excerpts (with links from the originals):

"NJ Cut Its Prison Population By 40% During 11 Months Of the Pandemic":

As the coronavirus swept through New Jersey’s prison system last year, killing inmates at the highest rate in the nation for months, state leaders took an unprecedented step: They slashed the prison population by 40%.

“No other state has been able to accomplish what New Jersey has accomplished,” said Amol Sinha, executive director of the American Civil Liberties Union of New Jersey, “making it the nation's leading de-carcerator and I think that's a badge that we should wear with honor.”

In October 2020, Governor Phil Murphy signed a law that allowed those within a year of release to get out up to eight months early. The first-in-the-nation measure ultimately freed nearly 5,300 adults and juveniles from state custody over the last 11 months.

“New Jersey's prison population plummeted under the law, reaching a level that it had not been in for decades and creating a much more manageable … population for the correction system,” said Todd Clear, a university professor at Rutgers who specializes in criminal justice.   He said the prison census dropped to numbers not seen since the 1980s. “New Jersey was the most aggressive [state] and it was the most expansive across the largest proportion of the population,” Clear said.

"Why is New Mexico’s prison population on the decline?"

There’s been a “dramatic” decline in the state’s prison population from summer of 2020 to summer of 2021, according to the New Mexico Sentencing Commission (NMSC). In early November, the commission, which evaluates policies related to the criminal justice system, told state legislators that the recent declines in part are likely due to ongoing criminal justice reform, increased prison diversion programs, and changes in how criminals are sentenced.

The COVID-19 pandemic is also thought to have played a role, as jury trials were suspended and the Department of Corrections worked to find elderly and at-risk prisoners who were eligible for early release, according to the NMSC. However, the decline in prison population began even before the pandemic.

For the first time in the last 10 years, the peak male prison population — the maximum number in prison in a fiscal year — has dropped below 6,000 prisoners. And the peak female prison population has dropped by a total of 24% over the last two fiscal years to 607 prisoners in 2021, according to data from the NMSC.

“Some of the decline may be attributable to a decrease in prosecutions during the pandemic,” Linda Freeman, the executive director at NMSC, told the legislature. As a result, the NMSC predicts a slight increase in prison populations in the coming years, as the effects of COVID-19 wane.

November 24, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1)

Friday, November 12, 2021

Highlighting compassion's limits as to prison releases during pandemic

Wanda Bertram has this notable New Republic commentary fully headlined, "State Prisons Released More People Before Covid-19 Than During It: Prison officials touted a compassionate response to Covid, but the statistics tell another story."  I recommend the full piece, and here is how it starts (with links from the original):

As Covid-19 first spread through the United States, it became clear that jails and prisons would see the worst of it. Already suffering from overcrowded, unsanitary facilities and medical neglect, incarcerated people lived in prime conditions for deadly outbreaks.  Responding to pressure from advocates, prison officials insisted they would look for opportunities to release people who could go home safely or who were at high risk of dying from the disease.

But state prison statistics show another story: Relatively few people have been released from prisons over the course of the pandemic.  According to data collected by the Prison Policy Initiative (where I work as a spokesperson) tracking releases in 11 states, 10 of those states reported releasing even fewer prisoners in 2020 and the beginning of 2021 than they had in 2019.  This drop in releases occurred as the coronavirus infected one in every three people in prison nationwide, leading to 2,800 deaths as of this October.

Many prisons did make policy changes designed to expedite early releases.  In most places, though, these changes didn’t result in more people going home.  An apparent drop in the overall prison population during the last two years, most agree, is due to fewer people being sent to prison in the first place, not people being freed. So why did releases go down?  Prison officials say that they make decisions on petitions for early release by weighing several factors, including an individual’s behavior, the nature of their original offense, their potential risk to public safety, and circumstances that might prompt a “compassionate” release (such as a prisoner suffering from severe dementia).  To be sure, the pandemic posed logistical challenges — making it hard to hold in-person parole hearings, offer classes that are sometimes prerequisites for parole, or place people in halfway houses.  But the pandemic also introduced what should have been a compelling new factor in release decisions: the risk of serious illness or death.  One would think this would have tipped the scales in a significant number of cases, adding up to more releases.  The fact that it did not raises disturbing questions about the conduct of prison officials.

While the data collected by my colleagues at the Prison Policy Initiative is incomplete, because only some states publish monthly release data, anecdotes and statewide reports help fill in the gaps. We know, for instance, that compassionate releases have stagnated in many states.  A recent investigation by The Salt Lake Tribune showed Utah’s parole board didn’t increase compassionate releases during the pandemic; instead it denied people like Jesus Gomez, an 84-year-old man confined to a wheelchair who can’t remember his crimes.  Over in Nevada, officials granted zero compassionate releases in 2020; medical staff in its prisons failed even to identify candidates to review. Alabama, whose infamously crowded prisons hold about 28,000 people, identified just 15 candidates for compassionate release last year and granted it to five.  Alabama also granted parole to a smaller percentage of the people who applied in the spring and summer of 2020 than it had from 2018 to 2019.  Meanwhile, the Southern Poverty Law Center obtained a list of the oldest incarcerated people in Alabama, discovering that hundreds were parole-eligible but either had been denied or hadn’t had a hearing.

November 12, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, November 04, 2021

Split Sixth Circuit panel finds multiple errors in district court's reduction of LWOP sentence via 3582(c)(1)(A)

The Sixth Circuit yesterday handed down a notable split panel opinion reversing the grant of compassionate release to a defendant who had been serving a life without parole sentence in US v. Bass, No. 21-1094 (6th Cir. Nov. 3, 2021) (available here).  Here i how the majority opinion gets started:

In 2003, John Bass, a local drug kingpin in the state of Michigan, was convicted of murdering a hitman whom Bass had hired to kill Bass’s half-brother.  Though the Government sought the death penalty, Bass was ultimately sentenced to two concurrent terms of life imprisonment without the possibility of release.  In 2020, Bass moved for compassionate release due to COVID-19.  The district court granted Bass’s request in January 2021 and ordered his immediate release.  In March, a divided panel of this court granted the Government’s emergency motion to stay the release.  In this merits appeal, the Government argues that the district court abused its discretion when it granted Bass’s request for immediate release.  Because the district court’s decision rested upon legal errors, its decision to release Bass constituted an abuse of its discretion.  On remand, moreover, the district court must reevaluate the compassionate release request based on current facts and circumstances, which have materially changed.

The "legal errors" identified by the majority relate largely to how the district court framed and balanced various 3553(a) factors, but the seriousness of the crime seems to be driving much of the analysis:

The district court also reasoned that, balancing Bass’s crimes “with the circumstances under which they were committed,” his twenty-two-year incarceration was “‘sufficient, but not greater than necessary,’ to fulfill the purposes of his punishment.” Bass, 514 F. Supp. 3d at 984 (quoting 18 U.S.C. § 3553(a)).  This conclusion does not fit the facts of Bass’s case.  Bass’s crimes were so severe that the Government sought the death penalty, and Bass’s own defense counsel assured the jury that Bass would never leave prison in an effort to avoid imposition of the death penalty.  Bass, 460 F.3d at 834.  The district court justified Bass’s release by repeatedly emphasizing Bass’s commitment to rehabilitation and education.  Bass, 514 F. Supp. 3d at 984-88.  But the district court failed to square this lengthy rehabilitation analysis with the fact that Bass’s original sentence was life imprisonment without the possibility of release. This sentence would have ensured that the fifty-two-year-old Bass would remain in prison for the rest of his life, which could conceivably extend for several decades.  In deciding Bass’s original sentence, the jury and the district court had already considered and rejected the possibility that Bass could be rehabilitated, or that his capacity for rehabilitation warranted the potential for an early release.  This is not to say that compassionate release is never available for a defendant sentenced to life imprisonment without the possibility of release.  We assume that there are circumstances that would warrant compassionate release for a defendant so sentenced.  But the nature of Bass’s life sentence calls into question the district court’s decision to afford substantial weight to Bass’s efforts at rehabilitation after only twenty-two years in prison.

Notably, as detailed here, a few months ago in US v. Hunter, 12 F. 4th 555 (6th Cir. 2021), a unanimous Sixth Circuit panel reversed a life sentence reduced to "only" 21 years in prison based on questionable conclusions that certain factors could never permit a sentence reduction via 3582(c)(1)(A).  Here the reversal is focused on the weighing of 3553(a) factors, and that reality in part drives  the dissent that Judge White penned here.  Her opinion starts and ends this way:

I would not have granted Bass’s motion for compassionate release, but under the compassionate-release jurisprudence this court has developed over the past year and a half or so, our disagreement with a district court’s exercise of its discretion is expressly excluded as a ground for reversal. We require district courts to provide only the most minimal explanation, see, e.g., United States v. Quintanilla Navarro, 986 F.3d 668, 673 (6th Cir. 2021) (affirming a district court's single-sentence order), and we must defer to their judgment in weighing the § 3553(a) factors and not substitute our own, see United States v. Ruffin, 978 F.3d 1000, 1005 (6th Cir. 2020); United States v. Hogg, 858 F. App’x 816, 818 (6th Cir. 2021); United States v. Keefer, 832 F. App'x 359, 362–65 (6th Cir. 2020)....

As I said at the outset, I would not have granted this motion.  However, the district court adequately explained its decision and did not abuse its discretion in concluding otherwise.  We must apply the same rules on review without regard to whether the government or the inmate is aggrieved by the district court’s decision.  “Our trust in the discretion of the district court must be consistent regardless of whether the district court grants or denies a [compassionate-release motion].” Bass, 843 Fed. App’x at 740.

November 4, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, October 25, 2021

"A crisis of undertesting: how inadequate COVID-19 detection skews the data and costs lives"

The title of this post is the title of this new report authored by Erika Tyagi, Neal Marquez, and Joshua Manson of the UCLA Law COVID Behind Bars Data Project. Here is part of the report's introduction:

Earlier this month, our team co-authored an article in the Journal of the American Medical Association on our findings that, during the first year of the pandemic, the COVID-19 infection rate for people incarcerated in state and federal prisons was 3.3 times higher than the rate for the U.S. population as a whole, and the COVID-19 death rate was 2.5 times higher.

These disparities are stark but not surprising — in an earlier study, we found that, in the first months of the pandemic, incarcerated people faced even more disproportionate infection and death rates.

There is reason to believe, however, that actual outcomes have been far worse than these data reveal.  That is because calculating infection rates that reflect the true prevalence of COVID-19 requires adequate testing.  If tests are not widely administered in prisons and jails, and, by many accounts, they have not been, then infections will go undetected.  As a result, infection and death rates will appear lower than they actually are....

The Centers for Disease Control and Prevention has issued guidance recommending testing “at least weekly” of unvaccinated, asymptomatic employees of all workplaces, even those without known or suspected exposures.  Even before vaccines became available, many schools, universities, nursing homes, and other workplaces mandated weekly — or even daily — testing.

In nearly all jails and prisons, however, officials have been conducting orders of magnitude fewer tests than congregate settings with much lower risks of transmission. This provides strong evidence that more testing behind bars would reveal many more infections.

Similarly, COVID-19 deaths are often only recorded as such if individuals test positive before dying.  Because undertesting for COVID-19 results in many infections going undetected, it also increases the likelihood that individuals in prison may have died of COVID-19 without the cause of death being accurately recorded.  As a result, the true number of people who died from COVID-19 behind bars may be higher than the figures officially reported.

In the following pages, we break down three important public health metrics — testing rates, test positivity rates, and case fatality rates — that provide critical context to officially reported infection and death data and reveal just how unreliable reported infection and death data may be.  These three metrics suggest that, in many places, true infection and death numbers may be much higher than those officially reported.

October 25, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Thursday, October 21, 2021

"Data update: As the Delta variant ravages the country, correctional systems are dropping the ball (again)"

The title of this post is the title of this new briefing from the Prison Policy Initiative authored by Emily Widra.  Here is how it starts and ends:

The COVID-19 pandemic is far from over, particularly inside prisons and jails.  The death rate from COVID-19 in prisons is more than double that of the general U.S. population. In state and federal prisons across the country, over 2,800 people have died of COVID-19 and almost 438,000 people in prison have been infected, and thousands of additional cases are linked to individual county jails.  As the more contagious Delta variant ravages parts of the nation, public health officials continue to recommend prison population decreases as a primary method of risk reduction.  Our data show that with just a few exceptions, state and local leaders are continuing to fail to reduce their prison and jail populations.

The federal Bureau of Prisons, state governments and departments of corrections, and local officials have a responsibility to protect the health and lives of those who are incarcerated.  After 18 months of outbreak after outbreak in prisons and jails, it is clear correctional authorities must be held accountable for their failure to reduce their populations enough to prevent the illness and death of those who are incarcerated and in surrounding communities....

Even before COVID-19, prisons and jails were a threat to public health and considered notoriously dangerous places during any sort of viral outbreak.  And yet, correctional facilities continue to be the source of a large number of infections in the U.S.  The COVID-19 death rate in prisons is almost three times higher than among the general U.S. population, even when adjusted for age and sex (as the prison population is disproportionately young and male).  Since the early days of the pandemic, public health professionals, corrections officials, and criminal justice reform advocates have agreed that decarceration is necessary to protect incarcerated people and the community at large from COVID-19. Decarceration efforts must include releasing more people from prisons and jails.  Despite this knowledge, state, federal, and local authorities have failed to release people from prisons and jails on a scale sufficient to protect incarcerated people’s lives — and by extension, the lives of everyone in the communities where incarcerated people eventually return, and where correctional staff live and work.

October 21, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, October 20, 2021

"The policy lessons learned from the criminal justice system response to COVID-19"

The title of this post is the title of this notable new essay authored by Alex Piquero just published by Criminology & Public Policy.  Here is part of the essay's introduction (with cites removed):

Since the onset of the novel coronavirus, criminologists have researched how the virus and its policy responses have affected crime and criminal justice, with the most significant findings indicating: (1) a steady increase in specific forms of violence, including primarily homicides/community gun violence and domestic violence; (2) reductions or stability in virtually all property crimes, but the acceleration of certain types of offending, such as fraud and cybercrime, due in large part to increased reliance on the internet and related platforms; (3) the emergence of new crime types, such as public health violations for breaking COVID-19 safety protocols; (4) a reduction in prison and jail populations — especially in the first 6–9 months of the pandemic; (5) a rapid spread of viral infections in jails and prisons; (6) a substantial increase in opioid use and fatalities; (6) the creation of gaps in the delivery of needed medical and mental health screening and treatment; and (7) an initial reduction in police stops, citations, and arrests — particularly in the first few months of the pandemic as many departments pulled back on patrol and limited contact with the public in large part due to viral spread, lockdowns — leading to fewer persons out in public, and a lack of protective equipment.

These research efforts have been important in documenting changes in crime and the criminal justice response and have provided important baseline information to compare against as criminologists continue to track changes in crime in the COVID-19 era.  Yet, one of the glaring omissions from the research accumulated thus far — and not necessarily the fault of criminologists per se — has been the lack of policy-relevant discussion surrounding the effects of all-things-COVID on the criminal justice system.  This essay takes a step in that direction.

In the sections that follow, I highlight what was the nonexistent policy playbook and initial response by the various actors of the criminal justice system and the subsequent policy decisions and lessons learned as the system navigated the viral outbreak in real time with little — or constantly changing guidance — from state and federal officials.  Not only were communities ravaged by the virus — and the racial/ethnic health injustices brought to light, but so to were police, court, and correctional systems and personnel as many became infected, hospitalized, and died — all the while the wheels of the justice system continued at a slower pace (with respect to policing) and in some cases stalled or stopped altogether for a period of time (such as the court system).  Following this section, I turn to some of the early experiences as to how policing, courts, and corrections made decisions to adapt to the spread of the virus.  The essay closes with some lessons learned by criminal justice agencies, some policy considerations, and importantly how the COVID-19 pandemic in concert with calls for social and racial justice within the justice (and health) system(s) have hopefully moved the dial to reform and reimagine what criminal justice could look like and should like with respect to trust, legitimacy, accountability, and transparency.

October 20, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, October 09, 2021

"Creating Cautionary Tales: Institutional, Judicial, and Societal Indifference to the Lives of Incarcerated Individuals"

The title of this post is the title of this notable new article authored by Nicole Godfrey available via SSRN.  Here is its abstract:

As the COVID-19 pandemic wreaked havoc on American society in the spring of 2020, advocates for incarcerated people began sounding alarm bells alerting society to the impending devastation for incarcerated people once the coronavirus scaled the prison walls.  For too many incarcerated people, the alarms fell on deaf ears and the COVID-19 pandemic has had life-shattering consequences for thousands of individuals locked inside American prisons.  But to anyone with an understanding of the historical realities of and legal parameters around the American carceral state, the devastation came as no surprise.

Since the 1980s, America has led the world in imprisoning its own citizens, and, to many, American justice means locking human beings in overcrowded cages and throwing away the key.  This Article explores how American criminal “justice” has created a system wherein three interconnected strands of indifference render incarcerated people particularly vulnerable to devastating harms like those associated with the COVID-19 pandemic.  First, the sheer enormity of the American carceral state has led to the creation of prison bureaucracies that operate with institutional indifference to the lives of the incarcerated.  Sympathetic to the complex task of administering enormous prison systems, the federal judiciary has created a doctrine of judicial indifference to harms experienced to incarcerated people.  Finally, the Article explores how a general societal indifference to the lives of incarcerated individuals in particular and marginalized groups in general has allowed the institutional and judicial indifference to develop and proliferate.  The Article posits that the damaging consequences of the COVID-19 pandemic on the incarcerated population are directly tied to these interwoven indifferences and calls on widespread reform and decarceration to avoid future cautionary tales.

October 9, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, September 30, 2021

Examining "life-or-death lottery for thousands of federal inmates" from compassionate release

Ai2html-graphic-desktop.93a75d10This lengthy new CNN article, Headlined "Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic," takes a deep dive into the realities of compassionate release processes and outcomes. Here are excerpts:

Judge Danny Reeves ... has denied compassionate release motions from at least 90 inmates since the beginning of the coronavirus pandemic, a CNN review of court records found. In Reeves' district, the Eastern District of Kentucky, judges granted about 6% of compassionate release motions in 2020 and the first half of 2021, according to data released by the US Sentencing Commission this week. In some judicial districts, the approval rate was even lower.

But elsewhere in the country, compassionate release is a different story: Nearly 50% of compassionate release motions decided by the federal court in Massachusetts and more than 60% decided by the court in Oregon were approved during the same time period -- including some for inmates with far less serious medical conditions.... [The image shows darker colors based on percentage of motions for compassionate release that were granted, by judicial district.]

Federal judges in all of these districts are applying the same laws, which allow compassionate release in "extraordinary and compelling" cases. But those wide disparities show that whether defendants get released early during the pandemic has had almost as much to do with which courts are hearing their motion as it does with the facts of their cases, legal advocates and researchers say.

The compassionate release process, expanded by Congress in a landmark 2018 criminal justice reform bill, has acted as a safety valve for the federal prison system during the pandemic, with more than 3,600 inmates being released in 2020 and the first half of 2021. But it has given judges broad discretion to interpret which sentences should be reduced, leading to a national patchwork of jarringly different approval rates between federal courts.

The reasons behind the disparities have to do with variations in sentence length and legal representation for inmates, as well as differing approaches between more liberal and conservative judges, according to interviews with more than a dozen lawyers, advocates and experts studying compassionate release.

More broadly, the percentage of motions granted nationwide has fallen this year, as judges and Department of Justice lawyers have been pointing to inmates' vaccination status as a reason to oppose their release. "Judges are looking at the same law and policy but interpreting it differently," said Hope Johnson, a researcher with the UCLA School of Law who's studied compassionate release cases. "There's an arbitrariness in the way these decisions are being made."...

Overall, 17.5% of compassionate release motions were granted in 2020 and the first six months of 2021, newly released sentencing commission statistics show. But that rate ranged from a low of 1.7% in the Southern District of Georgia, where all but four of 230 motions were denied, to a high of 77.3% in the District of Puerto Rico, where 17 of 22 motions were granted.

Judge Charles Breyer, the only current member of the sentencing commission, said in an interview that he thought the lack of updated compassionate release guidelines was exacerbating the wide disparities between districts. He said he would like the commission to pass a new standard urging judges to take "the pernicious effect of Covid" into account in deciding compassionate release cases. "You need a national standard," Breyer told CNN, adding that without one, "it creates a vacuum and it creates uncertainty, and most importantly it creates disparity."

September 30, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Friday, September 24, 2021

"Sex Offender Registration in a Pandemic"

The title of this post is the title of this new piece authored by Wayne Logan now posted on SSRN. Here is its abstract:

This Essay, part of a symposium examining how the COVID-19 pandemic has affected the criminal justice system, addresses whether, and how, state and local governments maintained their requirement that individuals convicted of sex offenses meet with authorities in person to confirm and update their registry information.  Focusing in particular on the first months of 2020, the tale told highlights the distinctiveness of registration: while many governmental operations were suspended, or went online, in-person registration very often persisted.  As a result, registrants were required to travel to a government office (perhaps by public transport), wait in a closed space very possibly with poor ventilation, sometimes for extended periods of time, where social distancing might not have been feasible.  If they failed to satisfy the registration requirement they faced significant criminal punishment.

The in-person registration requirement remained in effect even though registrants often share many of the same health and age-related characteristics of the broader at-risk population, risks often aggravated by sanitary problems associated with chronic homelessness (e.g., lack of access to soap for hand washing) that registrants often experience.  As a result, in-person registration posed the threat of registrants transmitting and contracting the virus, affecting not only the registrants themselves, but also friends, family, and employers, as well as the governmental authorities with whom they had to interact.  As states and localities undertook aggressive measures to stem the spread of COVID-19, the persistence of in-person registration provides a stark reminder of the continued exceptionalism of registration and the population it targets (individuals convicted of sex offenses).

The Essay explores the reasons accounting for this distinctiveness and provides some thoughts on how and why in-person registration persisted in the early stages of the pandemic when so many other governmental operations were suspended or significantly modified.

September 24, 2021 in Collateral consequences, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Sex Offender Sentencing | Permalink | Comments (3)

Law enforcement and prosecutor groups urge Prez Biden to commute sentence of all in home confinement cohort

Via email, I learned this morning about this new letter to Prez Biden from the groups Law Enforcement Leaders to Reduce Crime & Incarceration, Fair and Just Prosecution, and Law Enforcement Action Partnership. Here is how it starts:

We write as individuals and on behalf of our respective national organizations — Law Enforcement Leaders to Reduce Crime & Incarceration, Law Enforcement Action Partnership, and Fair and Just Prosecution — as it pertains to the approximately 4,000 individuals placed on home confinement pursuant the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, who face the continued threat of reincarceration due to the prior administration’s January 15, 2021, Office of Legal Counsel memo (“OLC memo”).  We are pleased to see reports that your Administration is beginning to consider commutations for individuals who have committed nonviolent drug offenses and have been placed on home confinement pursuant the CARES Act.  Joining members of Congress, justice reform advocates across the political spectrum, and companies that currently employ these individuals, we seek to add our law enforcement perspective and urge you to grant clemency to all individuals placed on home confinement pursuant the CARES Act — regardless of underlying offense or sentence.

Some of many prior related posts:

September 24, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, September 21, 2021

Sending a better clemency message while shooting the messenger

This new New Republic commentary, fully headlined " Biden’s Conservative Vision on Clemency: Thousands of incarcerated people went home early thanks to a Covid relief program. Why would the Biden administration send them back to prison?," continues the annoying tendency of blaming the Biden folks for threatening to send the home confinement cohort back to prison when it is the law passed by Congress (as interpreted by two Justice Departments) that has created the problem.  Here are excerpts (with links from the original):

The Cares Act ... gave the Bureau of Prisons discretion to send certain people home early.  The process involved a rigorous vetting, to ensure that the people chosen were low risk and had served a substantial part of their sentence, and it was effective: Of roughly 4,400 people released under the program, only 190 were sent back for violations, a strikingly low number given how easy it is to break the terms of home confinement. No serious crimes have been reported.

But before Donald Trump left office, administration lawyers determined that once pandemic emergency measures were lifted, Cares Act recipients would have to return to prison.  And Biden’s Office of Legal Counsel declined to reverse the memo.  Still, advocates were hopeful that Joe Biden would issue mass clemency.  So far, that hasn’t happened, leaving Cares Act people anxious about their future and frustrating criminal justice advocates....

Last week, Politico reported that some case workers are being encouraged to have their Cares clients apply to the Justice Department’s Office of the Pardon Attorney, which sounds promising.  But it also suggests that Biden is wedded to an inefficient process that’s created a backlog of close to 16,000 petitions.... 

It’s not clear whether special considerations will be applied to Cares Act recipients, perhaps allowing them to avoid the long trek through the Justice Department.  In fact, not much is clear at all.  Kevin Ring, president of Families Against Mandatory Minimums, said that outside of some leaks to the media, both Cares Act inmates and their advocates are in the dark.  “It’s a crazy lack of transparency,” Ring said.  “Friday afternoon, there’s a phone call to BOP halfway houses saying, this person should fill out a clemency petition in the next couple of days.  Who?  Why?  What [are] the criteria?”...

Amy Ralston Povah, who runs the CAN-DO Foundation, which helps nonviolent drug offenders, is hopeful but frustrated....  She added that Biden’s vision for who deserves early freedom is exceedingly conservative.  “Nonviolent drug offenders are such a limited category,” Povah said.  “Why are others left out?” 

I share Kevin Ring's concerns about a "crazy lack of transparency," though I want to be hopeful along with Amy Ralston Povah about where this is headed.  But I am frustrated because so many seem content to assail the Biden Administration about a problem that is clearly of Congress's making.  As I explained in this post some months ago, titled "Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?",  though Prez Biden could (and I think should) use his clemency authority to extended home confinement for those at risk of being sent back to federal prison post-pandemic, Congress is the body that created the CARES Act home confinement authority, and Congress can and should amend the CARES Act to do extend that authority though a few words in an express statutory provision.  Put simply, this matter is a statutory problem that calls for a statutory fix, and blaming Prez Biden for not fully fixing this problem strike me as shooting the messenger. 

I get especially frustrated by this discourse when it is members of Congress who are the ones urging Prez Biden to fix the statutory problem created by Congress.  As explained in this Hill piece, late last week a new letter from more than two dozen House Democrats called on "President Biden to commute the sentences of thousands who were placed on home confinement."  Frustrations aside, I do like that this new letter has legislators asking Prez Biden to improve the existing and badly broken clemency infrastructure.  Here is a key paragraph from the letter:

In addition to the 4,000 people who have been released to home confinement, there are another 15,752 people who, in the midst of this infectious and deadly pandemic, have pending clemency petitions with no real insight on the best way forward for their case.   Thousands with pending clemency petitions have been waiting for a response for years as their cases have languished during previous administrations, including most recently the Trump administration.  While the Trump administration made an effort through home confinement to reduce the number of people inside of BOP facilities, thousands more have been ignored.  The dismissal of their petitions serves only to demonstrate just how ambiguous and broken our clemency system has become.  We, therefore, implore you to establish an advisory board — independent of the Department of Justice — to streamline and modernize the decades-old clemency process, and provide expeditious review of the thousands of cases awaiting answers to their clemency petitions.  This advisory board must address the racially disproportionate impacts of our criminal-legal system.  There is no reason to wait.

Even though I am never keen to see folks shooting the messenger, I am always pleased to see a better clemency message being delivered in the process.  If the push for clemency for the home confinement cohort ends up helping to get our clemency process improved, all the frustrations may almost be worthwhile.

Some of many prior related posts:

UPDATE: The PBS Newshour had this recent segment on these matters under the headline "Inmates released to home confinement during pandemic fear ‘devastating’ reincarceration."

September 21, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, September 20, 2021

Two notable new Forbes pieces on the state of federal sentencing and clemency practices

Though both piece merit their own posts, a busy time means I have to combine my coverage of two recent Forbes piece that are worth full reads.  I will be content with a link and a paragraph to whet appetites:

From Brian Jacobs, "The U.S. Sentencing Commission’s Inadequate Response To Covid-19":

For the past 18 months, federal courts have grappled with the impact of Covid-19 on sentencing proceedings, and a curious disparity has emerged.  On the one hand, anecdotal evidence suggests that federal judges are imposing more lenient sentences in recognition of how the pandemic has made imprisonment harsher and more punitive than in the past. On the other hand, reports available from the U.S. Sentencing Commission tell a different story — at least for now — suggesting that courts have to a great extent ignored the pandemic when imposing sentence.  I have written in the past (here and here) about how the body of sentencing law is effectively hidden from public view (as it exists primarily in court transcripts).  This dearth of readily accessible sentencing law is particularly problematic during the Covid-19 pandemic, as courts are grappling with novel issues in hundreds of cases.  The U.S. Sentencing Commission is uniquely positioned to fill this gap, but so far has largely failed to do so.

From Walter Palvo, "Biden Considering Options To Avoid Returning Federal Inmates To Prison Post Covid-19":

The Biden administration’s Department of Justice has started sending out applications to inmates at home under the CARES Act for consideration of a presidential clemency. To be eligible, the inmate must be home under CARES Act, have been convicted of a drug offense and have 4 years or less remaining in their sentence. I spoke with Amy Povah who runs the non-profit Can Do for Clemency program to help prisoners achieve freedom from federal prison through changing laws and clemency. “President Biden has been handed an easy political gift. There are 4,000 inmates functioning in society, obeying the laws, bonding with family and held accountable for their past actions. There is no better group vetted to be given clemency than this group of CARES Act inmates.

September 20, 2021 in Data on sentencing, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Notable accounting of a decade of decarceration via Decennial Census

The Marshall Project has this notable new piece fully headlined "There Are Fewer People Behind Bars Now Than 10 Years Ago. Will It Last?: Census data show incarceration rates are down. It may have more to do with the pandemic than broad reforms."  The piece highlights census data that ought to be encouraging to those troubled by modern mass incarceration, but also notes why April 2020 incarceration data may not reflect persistent realities.  I recommend the piece in full, in part because it enables drilling down into a lot of great data, and here are excerpts:

Nearly two million adults were incarcerated across the country, according to the 2020 Decennial Census.  The latest figures show a 13% drop in the total number of incarcerated people, or nearly 300,000 fewer people, compared with the 2010 Census.  Roughly one-third of the drop in total numbers occurred in just two populous states — California and New York.  In total, 41 states, the District of Columbia and Puerto Rico saw reductions in the total number of incarcerated people.

In five states, the number of incarcerated people actually increased compared with a decade ago, but the incarceration rate still shrank because their total population grew more quickly than the prison population. Just four states — West Virginia, Alaska, Nebraska and Arkansas — saw their incarceration rate increase.

The Decennial Census offers a comprehensive and geographically granular look at the U.S. population by attempting to collect information about where everyone lives as of April 1.  By definition though, it is a snapshot of a brief moment in time, which is a limitation in trying to capture fluctuating numbers.

If the Census was held later in the year, for example, it might have shown a more substantial drop.  The Marshall Project’s COVID-19 tracker showed state and federal prisons had 100,000 fewer prisoners in June 2020 than in April, when the census was taken.  Another study estimated that from mid-year 2019 to mid-year 2020, county jails nationwide had 185,000 fewer people.

Experts say that a combination of factors contributed to this decrease: The court system and parole offices slowed down as they moved operations online, which has reduced the number of people who were sentenced or caught up in parole violations.  In many jurisdictions, police departments also cut back on proactive tactics, such as traffic stops, and the number of drug crimes dropped significantly.  Some prison and jail officials also rushed to empty out facilities to prevent COVID-19 outbreaks.

Broadly, these numbers have already started to tick back up as criminal courts begin to reopen and the criminal justice system is returning to normal, according to a recent report from the Vera Institute of Criminal Justice.  Given how unstable incarceration rates have been since the start of the pandemic — which overlapped with the entire period of census data collection — it may be impossible to draw any long-term conclusions from the apparent drop seen in Census data....

In most states, the raw numbers of incarcerated people didn’t change much, despite widespread efforts to decarcerate prisons and jails during the COVID-19 pandemic.  Instead, a few populous states lost a larger share.  For example, California’s incarcerated population shrunk by 50,000, and New York’s by 30,000.  Together, they account for approximately one-third of the national decrease in incarcerated population, while representing less than one-fifth of the country’s population.  Nine states saw an increase in the incarcerated population.

The incarceration rate provides another perspective.  Many southern states with slightly higher incarcerated populations also saw the fastest population increase in the past ten years. Because the number of people in these states grew faster than the number of incarcerated people, their incarceration rates still went down.

September 20, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, September 19, 2021

"Crime, quarantine, and the U.S. coronavirus pandemic"

The title of this post is the title of this notable new paper authored by Ernesto Lopez and Richard Rosenfeld just published in Criminology & Public Policy.  Here is its abstract:

Research Summary

Prior research has produced varied results regarding the impact of the coronavirus pandemic on crime rates, depending on the offenses and time periods under investigation.  The current study of weekly offense rates in large U.S. cities is based on a longer time period, a greater number of offenses than prior research, and a varying number of cities for each offense (max = 28, min = 13, md = 20).  We find that weekly property crime and drug offense rates, averaged across the cities, fell during the pandemic.  An exception is motor vehicle theft, which trended upward after pandemic-related population restrictions were instituted in March 2020.  Robbery rates also declined immediately after the pandemic began.  Average weekly homicide, aggravated assault, and gun assault rates did not exhibit statistically significant increases after March.  Beginning in June 2020, however, significant increases in these offenses were detected, followed by declines in the late summer and fall.  Fixed-effects regression analyses disclose significant decreases in aggravated assault, robbery, and larceny rates associated with reduced residential mobility during the pandemic.  These results support the routine activity hypothesis that the dispersion of activity away from households increases crime rates.  The results for the other offenses are less supportive.

Policy Implications

Quarantines and lockdowns, although necessary to reduce contagious illness, are not desirable crime-control devices.  An object lesson of the coronavirus pandemic is to redouble effective crime reduction strategies and improve police–community relations without confining people to their homes.

September 19, 2021 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

Thursday, September 16, 2021

US Sentencing Commission releases FY 2021 third quarter sentencing data showing COVID's continued (but reduced) impact on federal sentencings

I just noticed that the US Sentencing Commission this week published here its latest quarterly data report which is described as a "3rd Quarter Release, Preliminary Fiscal Year 2021 Data, Through June 30, 2021."  These new data provide another official accounting of how COVID challenges continued to reduce the usual total number of federal sentences imposed, though in the latest quarter we are seeing a return almost to pre-pandemic norms. 

Specifically, as reflected in Figure 2, in pre-pandemic years, quarterly cases sentenced generally averaged around 17,000 to 19,000.  But in the three quarters closing out 2020, amid the worst early periods of the pandemic, there were only between about 12,000 and 13,000 cases being sentenced each quarter.  In the most recent quarter report, which ran from April 1 to June 30, 2021, about 15,000 cases were sentenced in federal court.  Figure 2 also shows that major declines in the total number of immigration cases sentenced are what primarily accounts for the decrease in overall federal cases sentenced.  For the other big federal case categories -- Drug Trafficking, Firearms and Economic Offenses -- the total number of cases sentenced in recent quarters are not off that much from recent historical norms.

Consistent with what I noted in this prior post about pandemic era USSC data, these data show an interesting jump in the percentage of below-guideline variances granted in the last four quarters (as detailed in Figures 3 and 4).  But I remain unsure if these data reflect significantly different behaviors by sentencing judges over the last year or is just primarily a product of the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically.

Prior recent related post:

September 16, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Wednesday, September 15, 2021

"COVID-19 Relief and the Ordinary Inmate"

The title of this post is the title of this new article now available via SSRN and authored by Jenny Carroll.  Here is its abstract:

As scholars and advocates have lamented the deficiencies of remedies pre- and post-conviction for the extraordinary, the “ordinary” are not saddled with slow and deficient remedies -- they have none.  This Essay explores this absence of such relief for those unable to make an extraordinary claim during the COVID-19 public health crisis of 2020.  For the ordinary men, women, and children held in custody in 2020 and beyond, pretrial detention and sentencing laws make no exception in the face of a potentially fatal contagion or the public health crisis it creates.  Yet, the pandemic highlights the reality that systematic flaws -- carceral systems that permit mass infection within and outside their walls and release triggers premised on extraordinary circumstances or conditions -- are a sort of roulette of disaster for ordinary people in custody who lack access to pre- and post-conviction relief.  As problematic as these flaws are, they also represent an opportunity to reconsider the priorities that animate such relief and to question (or reimagine) systems that rebalance those priorities not just around the lives of the extraordinary, but around the lives of the ordinary. 

September 15, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, September 13, 2021

Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort

As discussed in this post from late last month, there has been talk that Prez Biden might use his clemency powers to help ensure that some member of the CARES home confinement cohort does not have to return to prison after the pandemic.  This new Politico piece, headlined "Biden starts clemency process for inmates released due to Covid conditions," reports on new action on this front:

The Biden administration has begun asking former inmates confined at home because of the pandemic to formally submit commutation applications, criminal justice reform advocates and one inmate herself tell POLITICO.

Those who have been asked for the applications fall into a specific category: drug offenders released to home under the pandemic relief bill known as the CARES Act with four years or less on their sentences.  Neither the White House nor the Department of Justice clarified how many individuals have been asked for commutation applications or whether it would be expanding the universe of those it reached out to beyond that subset.  But it did confirm that the president was beginning to take action.

“The Biden-Harris Administration is working hard every single day to reform our justice system in order to strengthen families, boost our economy, and give Americans a chance at a better future," said White House spokesperson Andrew Bates. "As part of this, President Biden is deeply committed to reducing incarceration and helping people successfully reenter society.  As he has said, too many Americans are incarcerated -- and too many of those incarcerated are Black and Brown. That is why the President is exploring the use of his clemency power for individuals on CARES Act home confinement. The Administration will start the clemency process with a review of non-violent drug offenders on CARES Act home confinement with four years or less to serve.”

The requests from the administration are a concrete sign that the president is planning to use his clemency powers to solve what was shaping up to be one of the thornier criminal justice matters on his desk. The New York Times previously reported that such requests for applications would be coming....

“While we are excited to hear the Biden administration is actively seeking clemency petitions for non violent drug offenders, we pray he will not carve up CARES Act recipients into small subsets,” said Amy Povah, a former prisoner who has become a well known clemency advocate.  “No other president in history has been handed a 'dream come true' opportunity to easily identify a large group of individuals who have already been vetted and successfully integrated into society, many of whom are now gainfully employed, found housing, and are healing the family unit that was injured due to tough-on-crime sentencing policies that previous administrations have acknowledged are horribly unjust.”

Rachel Hanson, 37, was one of those paroled inmates who was at risk of being sent back to her federal facility.  She was 8.5 years into a 151 month sentence for charges of possession with intent to distribute an unspecified amount of cocaine.  She had been released from prison in August of 2021 under the CARES Act but kept in home confinement wearing an ankle monitor.  She was contacted by her case manager on Friday, who told her that her name was submitted by the Department of Justice for expedited clemency and that she needed to fill out her clemency packet right away.

She described the events of the past few days as a blur. “I was so surprised,” she said. “I didn’t expect it.  You hear about clemency. You know it happens to people but you don’t always see.” Hanson has three children, one of whom is a senior in high school. She has a job interview lined up for Tuesday for a production coordinator post at a welding factory.  She has to rush to get her clemency packet completed first....

Udi Ofer, the ACLU’s deputy national political director, said that while he was heartened that the administration was now acting, he faulted the administration for acting in a less than transparent way with advocates and advocacy groups in the criminal justice space.  He said he was troubled by the possibility that it was cleaving off CARES Act recipients into those deserving commutation and those who didn’t.  He noted that the Bureau of Prisons, in originally releasing inmates under the CARES Act, had already made a determination between those who posed a threat of violence and those who didn’t.  “On the other hand, through the anecdotal information we’re seeing, we are worried that the White House is viewing this issue too narrowly and unnecessarily restricting the category of people being asked to apply for clemency,” said Ofer.

Some advocates for clemency and other forms of sentence reduction also expressed concern that the Biden administration’s move essentially put it in the position of working from a list developed by the Bureau of Prisons during the Trump administration, in a process critics said lacked clear guidelines and transparency.  “It’s not clear how the Bureau of Prisons chose people for this home confinement program, which raises the question of whether it’s fair to give a special benefit to these folks not available to those who have filed clemency petitions sometimes years ago and have been patiently waiting,” said Margaret Love, who served as Justice Department pardon attorney under Presidents George H.W. Bush and Bill Clinton.

I am very pleased to hear of some tangible developments on this long-simmering front, though I would really now be eager to see some detailed accounting of how many members of the CARES home confinement cohort are drug offenders with four years or less on their sentence.  I am also not going to expect or assume that Prez Biden is going to grant clemency to a notable number of individuals until he actually grants clemency to a notable number of individuals.  And I hope this process might prove transparent along the way (as well as robust and just the start of  overdue clemency efforts).

I am now wondering about the expected specifics of clemency grants by Prez Biden for some members of the CARES home confinement cohort.  Through clemency, Prez Biden could shorten the prison terms of individuals so that they have no more time left to serve in prison or on home confinement.  I am assuming that is the working plan, though I think Prez Biden could also opt to just convert remaining prison terms into time to be served only and entirely on home confinement.  As I have highlighted in prior posts here and here, many member of the CARES home confinement cohort could be bringing sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A), and it is interesting to think how pending clemency talk and coming action might impact efforts to secure relief through the courts.

Interesting times.

Some of many prior related posts:

September 13, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, September 01, 2021

"States of emergency: The failure of prison system responses to COVID-19"

The title of this post is the title of this notable new report from the Prison Policy Initiative authored by Tiana Herring and Maanas Sharma giving state-by-state grades to pandemic responses in incarceration nation. As the title suggestion, a whole lot of states received failing grades. Here is how the report gets started:

From the beginning of the pandemic, it was clear that densely packed prisons and jails — the result of decades of mass incarceration in the U.S. — presented dangerous conditions for the transmission of COVID-19. More than a year later, the virus has claimed more than 2,700 lives behind bars and infected 1 out of every 3 people in prison.

A year after we first graded state responses to COVID-19 in prisons, most state departments of corrections and the federal Bureau of Prisons are still failing on even the simplest measures of mitigation.

In this report, we evaluated departments of corrections on their responses to the pandemic from the beginning of the pandemic to July 2021.  We looked at a range of efforts to:

  • Limit the number of people in prisons: States received points for reducing prison populations as well as for instituting policies that reduced admissions and facilitated earlier releases.
  • Reduce infection and death rates behind bars: We penalized prison systems where infection and mortality rates exceeded the statewide COVID-19 infection and mortality rates, because some key decisions were based on correctional agencies’ faulty logic that prisons were controlled environments and therefore better positioned to stop the spread of infection than communities outside prison walls.
  • Vaccinate the incarcerated population: States were rated higher for including incarcerated people in their vaccine rollout plans, as well as for higher vaccination rates among their prison populations.
  • Address basic health (and mental health) needs through easy policy changes: We credited states for waiving or substantially reducing charges for video and phone calls, or providing masks and hygiene products to incarcerated people.  States also received points for suspending medical co-pays (which can discourage people from seeking treatment), requiring staff to wear masks, and implementing regular staff COVID-19 testing.

While some states performed well on one or two of these criteria, no state’s response to COVID-19 in prison has been sufficient.  The highest letter grade awarded was a “C”, and most states completely failed to protect incarcerated people.

September 1, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Monday, August 30, 2021

Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence

The New York Times has this notable new report, headlined "White House Weighs Clemency to Keep Some Drug Offenders Confined at Home," which suggests a limited subclass of the home confinement cohort may the focal point for clemency efforts by the Biden White House.  Here are the details, many of which are not that new, but all of which are important as efforts move slowly forward to help this cohort:

President Biden is considering using his clemency powers to commute the sentences of certain federal drug offenders released to home confinement during the pandemic rather than forcing them to return to prison after the pandemic emergency ends, according to officials familiar with internal deliberations.

The legal and policy discussions about a mass clemency program are focused on nonviolent drug offenders with less than four years remaining in their sentences, the officials said. The contemplated intervention would not apply to those now in home confinement with longer sentences left, or those who committed other types of crimes.

The notion of clemency for some inmates is just one of several ideas being examined in the executive branch and Congress. Others include a broader use of a law that permits the “compassionate release” of sick or elderly inmates, and Congress enacting a law to allow some inmates to stay in home confinement after the pandemic.

Interviews with officials in both the executive branch and Congress, most of whom spoke on the condition of anonymity to discuss sensitive deliberations, suggest there is broad support for letting nonviolent inmates who have obeyed the rules stay at home — reducing incarceration and its cost to taxpayers. But officials in each branch also foresee major challenges and have hoped the other would solve the problem....

Inmate advocates and some Democratic lawmakers have urged the Biden legal team to rescind the Trump-era memo and assert that the bureau can lawfully keep the prisoners in home confinement even after the pandemic ends.

But The New York Times reported last month that the Biden legal team had concluded that the memo’s interpretation of the law was correct, according to officials briefed on the internal deliberations. Officials have subsequently characterized that scrutiny as a preliminary review and said that a more formal one was underway, but suggested that a reversal of the Trump-era legal interpretation continued to be highly unlikely.

Against that backdrop, in a little-noticed comment at a press briefing this month, the White House press secretary, Jen Psaki, let slip that Mr. Biden was taking a closer look at clemency to help the subgroup who are nonviolent drug offenders....  In interviews, officials have subsequently confirmed that focus.  As a first step, the Justice Department will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office, they said.

It is unclear whether the Biden team is leaning toward commuting the sentences of the nonviolent drug offenders to home confinement, reducing the length of their sentences to bring them within the normal window for home confinement or a mix of the two.  The officials said focusing on nonviolent drug offenders, as opposed to other types of criminals, dovetailed with Mr. Biden’s area of comfort on matters of criminal justice reform. In his campaign platform, Mr. Biden had said he pledged to end prison time for drug use alone and instead divert offenders to drug courts and treatment.

Inimai Chettiar, the federal director of the Justice Action Network, called the idea a good start but also questioned the basis for limiting it to some nonviolent drug offenders, saying there was “no scientific evidence” for restricting the help to that category.  She suggested another explanation. “Politically, it’s an easier group to start with,” Ms. Chettiar said.

In addition, officials said, the Justice Department is studying other options that could help keep different groups from being forced back into prison.  Another idea under consideration is to petition the courts to let some individual inmates stay in home confinement under a “compassionate release” law. While the compassionate release law is normally used to permit terminally ill inmates to rejoin their families shortly before dying, the statute includes a broad standard for what a judge could decide warrants a sentence reduction — “extraordinary and compelling reasons” — that is not defined and might be applied to the pandemic-era home confinement population.

Kristie Breshears, a spokeswoman for the Bureau of Prisons, said additional options included expanding a pilot program that allows for the early release of older inmates in order to keep some who are over the ago of 60 in home confinement, and placing some inmates in halfway houses for 12 months.

Separately, Senators Richard J. Durbin of Illinois and Charles E. Grassley of Iowa — the top Democrat and Republican on the Senate Judiciary Committee — have also been discussing potential bipartisan legislation that would solve the problem in a simpler way by explicitly authorizing the Justice Department to extend home confinement after the pandemic.

At a hearing in April, Mr. Grassley joined Democrats in voicing support for allowing inmates in home confinement to stay there.  Taylor Foy, a spokesman for Mr. Grassley, said his office had drafted legislation that month that would let “inmates moved to home confinement during the pandemic complete their sentences there rather than returning to prison after the pandemic ends.”

Mr. Durbin had been among those who urged the Biden administration to instead reinterpret existing law as permitting perpetual home confinement for those inmates who were placed there during the emergency period. In a statement, Mr. Durbin embraced the idea of new legislation, but also said he did not think it would be easy — or necessary.  The prospects for legislation in “an evenly divided Senate are uncertain,” he said, reiterating his view that “the Biden administration has ample executive authority to immediately provide the certainty” to the inmates.

I would be eager it see an "all of the above" and more approach move forward in the months ahead. Prez Biden should certainly consider commuting many of the sentences of nonviolent drug offenders on home confinement (and also many others) AND there should be a continued push to seek sentence reductions in the courts for others on home confinement (and also many others) AND BOP should expand its pilot program for releasing older offenders into home confinement AND Senators Grassley and Durbin should keep pushing forward with legislation to expand the authority for placement into home confinement and to prevent those so placed from having to return to prison absent misbehavior.

When campaigning for his current job, Prez Biden promised that he would "take bold action to reduce our prison population."  But the federal prison population has so far grown significantly in the first seven month of the Biden Administration.  Specifically, the federal prison population has grown by over 4000 persons according to BOP numbers, from 151,646 total inmates on Jan 21, 2021 to 155,730 total inmates on Aug 26, 2021.  To date, I cannot really think of any actions (let alone bold ones) that Prez Biden has taken to reduce the federal prison population.  Talk of some clemency action is heartening, but just a start.  And whatever clemency efforts are made, they should extend beyond just a limited group who are already home.

August 30, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, August 29, 2021

"What's (Really) Driving Crime in New York"

The title of this post is the title of this interesting new short report produced by New Yorkers United for Justice (NYUJ), a coalition of criminal justice organizations. Here are parts of the introduction and conclusion:

A rise in certain categories of violent crime, most notably gun-related homicides and shootings, in New York State has created public concern and widespread speculation about its causes.  This publication examines possible causes for this uptick and debunks the assertions that New York’s criminal legal reforms — including the bail reform of 2018 — caused increases in these categories of crimes in our state.

The exceptional increase in homicides coupled with the decreases in other crime categories suggests that novel factors, rather than well-studied criminal justice reforms, are at work.  A careful look at the data, set in the context of national and world events, reveals that a complex blend of factors is likely at play — including the pandemic and its significant economic impacts, a drastic increase in gun sales, and the racial reckoning and discourse on policing that have contributed to a deterioration of police and community relations.

Furthermore, the increases in certain categories of crime in 2020 actually came on the heels of decades of steady downward trends in crime, both in New York and across the nation.  And the recent increases in homicides bring New York nowhere near the levels of homicides experienced in the early 1990s, when numbers peaked.  In fact, New York City’s 2020 homicide rates are lower than those of Houston, Philadelphia, and Los Angeles.

Some local opponents of criminal justice reform are pouncing on the increase in some crimes to stoke fear, slow progress, and double down on failed, outmoded policies.  And yet the increase in homicides — particularly those using guns — is national in scope, affecting communities big and small, and those that have instituted criminal justice reforms as well as those that have not.....

NYUJ’s review of the available crime data for New York State reveals the wholesale lack of a connection between recent upticks in certain categories of crime and recently adopted criminal legal reforms, such as pretrial reform.  Rather, similar upticks have been experienced across communities with varied criminal justice strategies, not just ones that have adopted reforms.

As discussed above, the most likely explanation for the crime data fluctuations is not a single explanation at all, but a confluence of conditions — from a once-in-a-century global pandemic and its attendant economic disruptions to a profusion of guns entering communities already on edge to strained relations between communities and law enforcement.  This toxic stew of factors has produced an environment of fear and mistrust.

Unfortunately, the complexity of this data is not readily apparent in many media reports.  As a result, there is a danger that policy decisions will be made based on unsupportable conclusions that defy consistent, longstanding evidence about what works to reduce crime and recidivism.  In presenting this information, NYUJ hopes to engage in a productive dialogue about what is driving the concerning crime numbers, what the existing data show, and the most effective policies indicated by the evidence.

A few of many prior recent related posts:

August 29, 2021 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

Wednesday, August 25, 2021

"When the Conditions Are the Confinement: Eighth Amendment Habeas Claims During COVID-19"

The title of this post is the title of this new paper authored by Michael Zuckerman with an abstract now available via SSRN.  Here is that abstract:

The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States.  It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane.  This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then dives into surveying eight prominent federal cases involving habeas claims related to COVID-19 outbreaks at carceral facilities.  The Article then distills six key tensions from these cases and discusses their implications for future litigation and doctrine. 

Specifically, the Article addresses: (a) the relationship between habeas and classic “conditions of confinement” cases; (b) the nature of Eighth Amendment “deliberate indifference” in this context; (c) the efficacy and availability of class-wide procedures for adjudicating these kinds of claims; (d) issues involving federalism and comity, and how courts may source such concerns through exhaustion requirements; (e) whether temporary release is better conceived of under these circumstances as preliminary or final relief; and (f) the fraught interplay between rights and remedies.  The Article concludes by suggesting potential solutions for courts and legislatures.

August 25, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, August 20, 2021

"Virtual Guilty Pleas"

The title of this post is the title of this new paper authored by Jenia Iontcheva Turner and available via SSRN.  Here is its abstract:

The coronavirus pandemic led criminal courts across the country to switch to virtual hearings to protect public health.  As the pandemic subsides, many policymakers have called for the continued use of the remote format for a range of criminal proceedings.  To guide decisions whether to use remote criminal justice on a regular basis, it is important to review the advantages and disadvantages of the practice.

Remote criminal proceedings have been praised for their convenience and efficiency, but have also raised concerns.  Many have worried that videoconferencing inhibits effective communication between defendants and their counsel, hinders defendants’ understanding of the process, impedes effective confrontation of witnesses, and prejudices the court’s perceptions of the defendant and witnesses.

Previous scholarly work has attempted to evaluate remote criminal proceedings through legal and policy analysis, surveys of practitioners, and a comparison of outcomes of in-person and remote proceedings.  This Article adds insights based on direct observations of over three hundred remote criminal proceedings in misdemeanor and felony courts across Michigan and Texas.

Our observations reveal that judicial review of guilty pleas in the virtual setting is as brief and superficial as it is in person and may fail to detect inaccurate, coercive, or uninformed guilty pleas.  But the virtual format presents additional risks to the fairness and integrity of the plea process, including the disengagement from the process by defendants, the difficulty of counsel and defendant to communicate privately, and the potentially prejudicial effects of inadequate technology and informal settings.

The Article concludes by arguing that states should not use remote plea hearings on a regular basis after the pandemic is over.  To the extent they do continue conducting remote plea hearings, they must bolster procedural safeguards in the proceedings.  Judges must review virtual pleas and plea agreements more closely, verify that defendants are making an informed and voluntary choice to proceed remotely, take measures to ensure that defendants are represented adequately, and address the potentially prejudicial effects of the remote setting.  These measures can help protect fairness in the plea process and ensure that virtual guilty pleas remain constitutionally valid.

August 20, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, August 19, 2021

Still more attention (and some helpful action) for the home confinement cohort

It has now been a full month since the news broke that the Biden Justice Department was going to accept the legal opinion that federal prisoners released into home confinement would have to be returned to prison after the pandemic.  The dilemma of the home confinement cohort continues to generate considerable attention and here are a few new pieces:

From The Bulwark, "Biden Must Act to Ensure Nonviolent Offenders Aren’t Sent Back to Prison"

From Inquest, "Keeping Them Home: During the Trump administration, lawyers at DOJ said thousands of people who were sent home from prison during the pandemic need to be sent back when the COVID emergency ends. They got the law wrong, and DOJ should say so."

Helpfully, in addition to attention, this week also brought action to help this group as detailed in this new press release titled "FAMM, NACDL, and Washington Lawyers’ Committee launch CARES Act Home Confinement Clearinghouse."  Here are the basics:

FAMM, the National Association of Criminal Defense Lawyers (NACDL), and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (WLC) launched the “CARES Act Home Confinement Clearinghouse” today in an effort to prevent up to 4,000 people on CARES Act home confinement from returning to prison.

The Home Confinement Clearinghouse will match people on home confinement with pro bono attorneys or federal public defenders who will consider filing compassionate release motions in federal court on their behalf.

“Sending thousands of people back to prison after nearly two years of being with their families and reintegrating into society is unnecessary and cruel,” said FAMM President Kevin Ring. “The White House has shown no willingness to act so we are turning to the courts.”...

Due to the Biden Administration’s failure to act, FAMM, NACDL, and WLC have determined that it is essential for people on home confinement to pursue other viable options to avoid their unnecessary return to prison. Compassionate release is one such option....

People eligible for free representation through the CARES Act Home Confinement Clearinghouse fall into the extraordinary and compelling circumstances provision in the federal compassionate release law. Many of them have been deemed by the Bureau of Prisons as “low risk,” were released to home confinement during a global pandemic due to their vulnerability to the virus, were never informed about the possible return to prison, have successfully reintegrated into family and community for a year or longer, and face the re-emergence of COVID-19 threat.

The CARES Act Home Confinement Clearinghouse is modeled after the highly successful Compassionate Release Clearinghouse COVID-19 Project launched by the same organizations last year. The Clearinghouse was launched in an effort to protect vulnerable incarcerated people from the spread of COVID-19 in federal prisons and placed over 2,000 cases with pro bono counsel. Federal public defenders helped even more people. Federal judges answered the call by granting more than 3,500 compassionate release motions, despite BOP and Justice Department opposition to nearly every case,

The Cares Act Home Confinement Clearinghouse will turn to federal judges again to help prevent the cruel unnecessary reincarceration of up to 4,000 law-abiding people. We will also urge the Justice Department to not oppose any of the motions as they have done in the past.

Some of many prior related posts:

August 19, 2021 in Criminal Sentences Alternatives, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, August 12, 2021

Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison

As detailed in this new Hill article, "two top Democrats on the Senate Judiciary Committee are calling on President Biden to quickly adopt a plan to keep thousands of federal inmates who were transferred to home confinement during the pandemic out of prison."  Here is more:

Sen. Dick Durbin (D-Ill.), the committee's chairman, and Sen. Cory Booker (D-N.J.), who chairs a subcommittee on criminal justice, are urging Biden in a letter sent to the White House on Thursday to use the "ample executive authority" at his disposal to ensure that those on home confinement are not sent back to prison.

"Given the breadth of available executive authority, no person who has successfully transitioned to home confinement should be required to return to federal prison," Durbin and Booker wrote in the letter, which was shared with The Hill.  "The uncertainty of the current situation unnecessarily interferes with the efforts of those on home confinement to rebuild their lives and participate in our economic recovery.  With the goal of facilitating successful community reentry, we urge you to act immediately to resolve this issue and enable those on release to move forward with their lives."

The full two-page letter is available at this link, and here are excerpts:

We respectfully request that your Administration take immediate action to ensure that thousands of individuals who have successfully transitioned to home confinement from federal prison during the pandemic are not returned to prison without cause.  Your Administration has ample executive authority to immediately provide the certainty these returning citizens deserve as they reintegrate into their communities, reunite with their families, and join in rebuilding our economy....

On January 15, 2021, in the last days of the Trump Administration, the Department of Justice Office of Legal Counsel issued a memorandum opinion entitled “Home Confinement of Federal Prisoners After the COVID-19 Emergency” (“OLC opinion”).  The OLC opinion incorrectly found that following the emergency period of the pandemic, BOP must recall federal inmates released to home confinement pursuant to the CARES Act and require these inmates to complete their sentences at BOP facilities. In fact, the CARES Act does not require or permit BOP to recall these prisoners.

On April 23, 2021, we asked Attorney General Garland to rescind the OLC opinion, and are awaiting his response.  However, the opinion does not prevent you from acting. We urge you to use your unfettered pardon power to immediately commute the sentences of those on home confinement pursuant to the CARES Act.  These individuals, who were released only after careful vetting by BOP, have successfully transitioned to home confinement.  They have reunited with family, obtained jobs, and are abiding by the conditions of their release.

Additional executive authorities are also available. BOP can provide relief for certain individuals through prerelease home confinement, under 18 U.S.C. § 3624(c)(2), and the Elderly Home Detention Pilot Program, pursuant to 34 U.S.C. § 60541(g). For those who do not qualify for those provisions, BOP can recommend, and DOJ should support, compassionate release pursuant to 18 U.S.C. 3582(c)(1)(A).  Compassionate release is authorized whenever extraordinary and compelling reasons warrant a sentence reduction, and the once-in-a-century global pandemic that led to these home confinement placements certainly constitutes such an extraordinary and compelling circumstance.

Some of many prior related posts:

August 12, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, August 09, 2021

Is it problematic for sentencing judges to require the COVID vaccine as a probation condition?

The question in the title of this post is prompted by this new New York Times article headlined "Get a Covid-19 Vaccine or Face Prison, Judges Order in Probation Cases." Here are excerpts:

As cases of coronavirus infections rise in Ohio, some judges have attached unusual conditions for those released on probation: Get a Covid-19 vaccine or face being sent to prison.

On Aug. 4, Judge Christopher A. Wagner of the Court of Common Pleas in Hamilton County told Brandon Rutherford, who was convicted on drug offenses, that as part of his release on “community control,” or probation, he must receive the vaccination within 60 days.

“I’m just a judge, not a doctor, but I think the vaccine’s a lot safer than fentanyl, which is what you had in your pocket,” the judge told Mr. Rutherford, 21, according to a transcript provided by the judge’s office on Monday. “I’m going to order you, within the next two months, to get a vaccine and show that to the probation office,” the judge said. “You violate, you could go to prison.”

On June 22, another Court of Common Pleas judge, Richard A. Frye in Franklin County, gave Sylvaun Latham, who had pleaded guilty to drugs and firearms offenses, up to 30 days to receive the vaccination, according to court records. If Mr. Latham violated that condition and others, he could go to prison for 36 months. Mr. Latham agreed to be vaccinated, the records show.

The sentences were a unique breakthrough in the public health debate taking place in the United States about how civil liberties intersect with mask and vaccination mandates. The judges’ decisions go to the heart of how personal freedoms are being examined through the lens of public health in a pandemic. David J. Carey, the deputy legal director of the American Civil Liberties Union of Ohio, said he saw no “clear cut” violation of civil rights.

“It is a potentially murky area,” he said. “There is certainly a legitimate concern around ordering someone to do something that pertains to their bodily autonomy. They need to have a compelling reason to have to do so.”...

Asked about his decision, Judge Frye said in an email on Monday that he had issued vaccine orders three times so far, and none of the defendants raised medical or religious objections. “Ohio law allows judges to impose reasonable conditions of probation, intended to rehabilitate the defendant and protect the community,” Judge Frye said. He said that, based on medical evidence, the vaccination would protect others and keep those on probation safer as they search for or keep jobs.

Sharona Hoffman, a professor and co-director of the Law-Medicine Center at Case Western Reserve University’s School of Law, said it was unusual to pair sentencing with the vaccine. “Judges get creative in order to keep people out of jail,” she said. “They impose all sorts of sentences and, again, this is to the benefit of the person. And if you are going to be out in the community, you can’t run around infecting people with Covid.”

In some states, such as Georgia, judges have offered reduced sentences if defendants get vaccinated, WSB-TV in Atlanta reports. Early this year, prisoners in Massachusetts were offered the possibility of reduced prison sentences for receiving the vaccine, but the decision was later rescinded....

Judge Wagner, in response to questions on Monday, said in an email that “judges make decisions regularly regarding a defendant’s physical and mental health, such as ordering drug, alcohol, and mental health treatment.” He added that Mr. Rutherford was in possession of fentanyl, “which is deadlier than the vaccine and COVID 19.”

August 9, 2021 in Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (2)

Thursday, August 05, 2021

Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded

As highlighted in this Hill article, headlined "Civil rights groups offer DOJ legal strategy on keeping inmates home after pandemic," a number of advocacy groups have this week made a lengthy pitch to the Justice Department seeking to undo DOJ's internal memo concluding that federal prisoners released into home confinement will have to be returned to prison after the pandemic.  Here is an excerpt: 

Civil rights groups on Wednesday urged the Department of Justice (DOJ) to reconsider its position on sending back to prison thousands of federal inmates transferred to home confinement during the pandemic, offering a legal analysis they believe would justify keeping them out from behind bars. 

Five organizations sent a 20-page letter to DOJ critiquing a Trump-era legal memo that concluded the department is required by law to revoke home confinement for those transferred during the pandemic as soon as the emergency period is over.  They argued that the memo from the DOJ's Office of Legal Counsel (OLC) is based on a flawed interpretation of the CARES Act....

The letter was signed by the Democracy Forward Foundation, Families Against Mandatory Minimums, Justice Action Network, The Leadership Conference on Civil and Human Rights, National Association of Criminal Defense Lawyers and Tzedek Association....

"The reasoning of the Memo is flawed and potentially harmful to the credibility of the office," the organizations wrote. "It overlooks important points of law and does not address reliance or due process issues that might apply to its analysis."

The full 20-page letter is available at this link, and here are portions of its introduction and conclusion:

OLC may reasonably determine that the Memo does not reflect the best (or even a permissible) reading of the relevant statutory language.  Specifically, the Memo read into the CARES Act a new requirement to revoke home confinement — immediately, and without discretion, at the end of the emergency — that does not exist anywhere in that statutory text. Under a plain reading of the CARES Act, the authority of the Bureau of Prisons to grant and revoke home confinement is the same as it always was under the pre-existing statutory scheme, except that BOP was authorized to “lengthen” the period of time a person may serve on home confinement.  Additionally, the Memo did not consider the affected prisoners’ reliance interests, potentially triggering a wave of hundreds or thousands of challenges when and if BOP attempts to implement the Memo’s instructions and placing BOP in legal jeopardy under recent Supreme Court precedent.

We have great respect for OLC’s non-partisan stance and the office’s general practice of stare decisis.  Consistent with OLC policy, however, we encourage you to reassess the Memo because it is incorrect and will present serious practical obstacles to BOP and the U.S. Attorneys’ Offices, not to mention the thousands of affected prisoners.  We provide the analysis below on why we believe that OLC should reconsider the Memo....

For these reasons, we respectfully request that OLC review the Memo and rescind it.  Time is of the essence. Each day that this Memo remains in place is a day that interferes with the ability of people living on home confinement to make the kinds of investments in families and employment necessary to successfully reintegrate into society.

Some prior recent related posts:

August 5, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, August 03, 2021

"Empathy and Remote Legal Proceedings"

The title of this post is the title of this notable new paper authored by Susan Bandes and Neal Feigenson now available via SSRN.  Here is its abstract:

Do remote legal proceedings reduce empathy for litigants?  Pre-COVID studies of remote bail hearings and immigration removal hearings concluded that the subjects were disadvantaged by the remote nature of the proceedings, and these findings are sometimes interpreted to mean that decision-makers tend to be less empathetic toward remote litigants.  Reviewing both the pre-COVID literature and more current studies, we set out to determine whether empathy is reduced in virtual courts. 

The notion that it is more difficult for decision-makers to exercise empathy toward someone they encounter only on a video screen is consistent with findings that physical distance increases social and hence psychological distance, and may well be borne out by further research.  However, while there are reasons to suspect that the exercise of empathy may be altered on Zoom or comparable platforms, thus far there is no firm evidence that the remote nature of legal proceedings, in itself, reduces empathy for litigants, witnesses, or other participants in legal proceedings.  On the other hand, there are ample grounds for concern that remote proceedings may further disadvantage litigants who are already unequally burdened by empathy deficits based on race, social class, gender, ethnicity, or other factors that may differentiate them from decision-makers.  We call attention to particular ways in which virtual proceedings may exacerbate these empathy deficits.

August 3, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, August 02, 2021

More encouraging(?) news from Capitol Hill on federal statutory criminal justice reform efforts

Axios has this interesting new piece headlined "Senate plans barrage on crime," which provides an encouraging update on the commitment of some key Senators to get additional federal criminal justice reforms to the finish line soon. Here are some details (with a bit of my emphasis added):

Sens. Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa) are working to win Senate passage of a big criminal justice reform package this Congress.

Why it matters: Crime is spiking in big cities. Sen. Tim Scott (R-S.C.) is still working on a police reform measure.  The bipartisan dynamic duo atop the Senate Judiciary Committee is stepping up, passing three piecemeal bills out of their committee....

What they're saying: It's these three measures, Grassley told Axios, they "hope to package along with potentially other proposals to pass the Senate sometime this Congress." Durbin told Axios in his own statement that he's "committed to bringing these bills to the Senate floor this Congress."

What to watch: The final package also may include a measure for the thousands of inmates who were released to home confinement during the pandemic but will be forced to return behind bars when it's over, a Republican Senate staffer told Axios.  In addition, it may address sentencing disparities in crack and powder cocaine offenses.

One challenge will be the crime spike, which has the potential of sapping support from senators afraid of being branded soft on crime.  "Negotiations have always been an important part of enacting criminal justice reform, and this time will be no different, especially given the increase in crime we are seeing across the country,” Grassley said.

Between the lines: It's still early, but advocates said they need to take advantage of any opening they see for criminal justice reform — especially since police reform has stalled. They pointed to the House Judiciary Committee recently voting out the bipartisan EQUAL Act.  It would eliminate disparities in sentencing for powder and crack cocaine offenses and allow some inmates to appeal their sentence.  Even normally critical Republicans like Rep. Louie Gohmert (R-Texas) are cosponsors for the bill, which they take as a good sign.  That has supporters believing whatever emerges from the Senate can be packaged with House measures in conference committee and, ultimately, pass Congress.

I use the term "encouraging(?)" to describe this news in my post title because "this Congress" only means sometime before January 3, 2023.  Given how hard it is to get a divided Congress to complete anything these days, I suppose I should find any talk of any serious commitment to getting anything done to be just "encouraging."  But because of the modest nature of the "three piecemeal bills" primarily being discussed here (details in links below), I have been hoping that one or more of these bills might have a real change of getting to the desk of Prez Biden before the end of this year.

That all said, if these three Durbin/Grassley bills were to be combined with the EQUAL bill to reduce crack sentences and with some statutory fix to the pandemic home confinement problem, then I think all sentencing advocates would have something to really get excited about.  Notably, the FIRST STEP Act ended up having a lot of smaller reform proposals rolled into it, and I would love to see  five good reform proposals (and a few more) put together so that reform legislation can really improve a federal criminal justice system broken in so many ways.

Last but not least, I cannot complete this post without emphasizing, yet again, how effective implementation of any congressional reforms demands a well-functioning US Sentencing Commission.  The FIRST STEP Act is now nearly three years old, and the absence of a fully functioning USSC has impeded needed follow-up reforms and analyses that only the USSC can complete.  All the Durbin/Grassley bills and others in this space likewise need a working USSC to aid implementation (and a functional USSC could and would now be able to aid legislative analysis and consideration of various proposals).  But, with no USSC nominations from Prez Biden yet named, I am now fearing we may not ever get a full slate of Commissioners during "this Congress."

Some of many prior related posts:

August 2, 2021 in Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (3)

Sunday, August 01, 2021

Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action)

The news a few weeks ago that the Biden Justice Department is not disputing the legal opinion that federal prisoners released into home confinement would have to be returned to prison after the pandemic continues to generate coverage and commentary.  Here is a round-up of just some recent pieces I have seen:

From Common Dreams, "Advocates Condemn Biden Plan to Send 4,000 Inmates Back to Prison After Pandemic"

From The Hill, "Inmates grapple with uncertainty over Biden prison plan"

From The Intercept, "Biden Has Said Pot Prisoners Should Be Free.  Now He’s Poised To Send Some Back To Prison."

From Politico, "Biden's prisoner's dilemma"

From The Root, "Biden Needs to Grant Clemency to the Over 4,000 People on Home Confinement"

It is understandable, but I still think quite unfortunate, that all of these stories focus almost exclusively on Prez Biden and his potential place in this story.  Most advocates have been talking up blanket clemency as the most efficient way to resolve this issue in order to keep the home confinement cohort from being sent back to prison after the COVID pandemic is over.  But, as I have highlighted in various posts, and stressed in this post titled "Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?," Congress readily could (and I think should) enact a statute that provides for the home confinement program to be extended beyond the end of the pandemic.  This problem is fundamentally a statutory one created by Congress in the CARES Act, and it could be readily fixed by Congress simply by adding a sentence or two to pending pieces of legislation.

In addition, as I highlighted in this other post, another important option for case-by-case relief for members of this cohort is through compassionate release motions.  This is how Gwen Levi got relief, and such motions have the potential to reduce lengthy sentences and not merely allow these sentences to be served at home.  Consider the story told here by Jeanne Rae Green, who was transferred to home confinement in May 2020 after serving serving 6.5 years of a 12.5 year sentence for meth distribution.  It sounds like she and other members of this home confinement cohort could bring strong sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).  The legal limbo in which Jeanne and others now find themselves could be perfectly described as constituting "extraordinary and compelling reasons" for a sentence reduction, especially if prosecutors cannot show how the 3553(a) factors would be better served by a return to prison.  (Indeed, as I have previously mentioned, I think federal prosecutors could and should actively promote and support sentence reduction motions for now on home confinement at risk of being sent back to prison.)

I am pleased to see so many working so hard to ensure this issue garners continued attention, and I am hopeful that Prez Biden will use his clemency pen to bring relief to the home confinement cohort ASAP.  But in the meantime, I also hope that pressure will be brought to bear on all the others — from members of Congress to members of DOJ to members of the judiciary — who can and should also be doing more help this cohort.

Some prior recent related posts:

August 1, 2021 in Criminal justice in the Biden Administration, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Sunday, July 25, 2021

US Sentencing Commission releases more detailed "Compassionate Release Data Report" for 2020

As detailed in this post, last month the US Sentencing Commission released a short data report titled "Compassionate Release Data." That report provided notable but very basic numbers on the grants and denials of federal compassionate release motions nationwide for calendar year 2020.  The report revealed, as further discussed in this follow-up post, that judges granted a good number of these motions once COVID hit, but that the Bureau of Prisons approved stunningly few compassionate release applications and that there were considerable disparities in grant rates in different judicial districts.

I was quite pleased to see the USSC promulgate any compassionate release data, but I was eager for additional data beyond circuit and district breakdowns of these motions.  In my prior post, I hoped we might at some point see "a lot more offender demographic information (e.g., race, gender, age of movant) and sentence modification information (e.g., primary sentenced offense and amount of sentence reduction)."  Excitingly, the USSC has now released this updated expanded data report that provides a lot more details about compassionate release grants for calendar year 2020.

Specifically, this latest report includes data on "Demographic Characteristics Of Offenders Receiving Compassionate Release" and on "Selected Sentencing Factors For Offenders Receiving Compassionate Release" and on "Type Of Crime For Offenders Receiving Compassionate Release" and on "Original Sentence Length For Offenders Receiving Compassionate Release." I am so very pleased to see this additional data, although the extent of sentence reductions is still a data point not covered which seems to me to be important to understand the full compassionate release story (e.g.,ten granted sentence reduction motions that reduce sentences by five months seem quite different than ten granted motions reducing sentences by five years.)   

Upon first glace, it is hard to see if there are any particularly distinctive or disturbing patterns in this enhanced USSC compassionate release data.  Interestingly, looking at the demographics, I noticed that the percentage of black prisoners securing a sentence reduction in 2020 (which was 45.2% according to the USSC data) appears to be greater than the percentage of black prisoners in federal prison (which was 34.9% as of this USSC report with March 2021 data).  Likewise, I was intrigued to see that the percentage of prisoners convicted of drug trafficking securing a sentence reduction in 2020 (which was 53% according to the USSC data) appears to be greater than the percentage of such prisoners in federal prison (which was 43% as of this same USSC report).   

I hope that the US Sentencing Commission not only continues to release more and more granular data about sentencing reduction grants.  I also hope the USSC will (a) track recidivism rates for this population over time, and (b) learn about which guidelines might be seen to produce excessively long sentencing in retrospect as documented through these grants.  The kind of second-look sentencing mechanism now operating the the federal system is not only valuable and important as a means to achieve better justice in individual cases, but also should serve as an important feedback loop providing a kind of on-going audit of the operation of the entire federal sentencing system. 

A few of many prior related posts:

July 25, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Thursday, July 22, 2021

Seventh Circuit panel states (in dicta?) that vaccine availability "makes it impossible" for COVID risks to create eligibility for compassionate release

The Seventh Circuit yesterday released a short panel opinion affirming the denial of a compassionate release motion in US v. Broadfield, No. 20-2906 (7th Cir. July 21, 2021) (available here) (Hat tip: How Appealing).  The opinion has a number of notable passages that make this ruling a useful read in full for those working in this arena, but the closing paragraph seemed especially worth highlighting here:

Section 3582(c)(1)(A) was enacted and amended before the SARS-CoV-2 pandemic, and it will continue to serve a beneficent function long after the pandemic ends.  But for the many prisoners who seek release based on the special risks created by COVID-19 for people living in close quarters, vaccines offer relief far more effective than a judicial order.  A prisoner who can show that he is unable to receive or benefit from a vaccine still may turn to this statute, but, for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an “extraordinary and compelling” reason for immediate release.

This final paragraph seems to me to be dicta (though what precedes it might lead some to conclude it is part of the holding).  I suspect the final clause will garner considerable attention no matter how characterized.  Critically, by using the phrase "the vast majority of prisoners," this final sentence still suggests that, at least for a few prisoners, the risk of COVID-19 can still provide an "extraordinary and compelling" reason for compassionate release.  Even more important may be whether lower courts might read this paragraph to mean that COVID risks cannot be combined with other factors to make out extraordinary and compelling reasons. Even if COVID risks are low for the vaccinated, they are not zero and so should be, as I see it, still a potential contributor to assessing what qualifies as an extraordinary and compelling reason when combined with other factors.

July 22, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, July 19, 2021

New York Times reporting Biden Justice Department agrees with OLC memo stating prisoners transferred to home confinement must return to prison after pandemic ends

As reported in this new New York Times article, headlined "Biden Legal Team Decides Inmates Must Return to Prison After Covid Emergency," it appears that the US Department of Justice is not changing its view of the limits of congressional authority to move people to home confinement under the CARES Act. Here are the details:

The Biden administration legal team has decided that thousands of federal convicts who were released to home confinement to reduce the risk of spreading Covid-19 will be required by law to return to prison a month after the official state of emergency for the pandemic ends, officials said on Monday.

The administration has come under pressure from criminal justice reform activists and some lawmakers to revoke a Trump-era memo by the Justice Department’s Office of Legal Counsel, which said inmates whose sentences lasted beyond the “pandemic emergency period” would have to go back to prison.

But the Biden legal team has concluded that the memo correctly interpreted the law, which applies to about 4,000 nonviolent inmates, according to officials who spoke on condition of anonymity about sensitive internal deliberations.  Several officials characterized the decision as an assessment of the best interpretation of the law, not a matter of policy preference.

The official state of emergency is not expected to end this year because of a rise in new infections caused by the coronavirus’s Delta variant. But the determination means that whenever it does end, the department’s hands will be tied.

That leaves two options if those prisoners are not to be sent back into cells: Either Congress could enact a law to expand the Justice Department’s authority to keep them at home beyond the emergency, or President Biden could use his clemency powers to commute their sentences to home confinement.

The Biden team is said to be wary of a blanket, mass commutation, however, both because it would represent an extraordinary intervention in the normal functioning of the judicial system and it could create political risks if any recipient who would otherwise be locked up commits a serious crime.  Another option is case-by-case assessment for commutations, but the volume of work required to individually evaluate so many people is daunting.

When asked for comment, the White House responded with a general statement about the administration’s support for policies that can reduce incarceration. “President Biden is committed to reducing incarceration and helping people to re-enter society,” said Andrew Bates, a White House spokesman. “As he has said, too many Americans are incarcerated, and too many are Black and brown. His administration is focused on reforming our justice system in order to strengthen families, boost our economy and give people a chance at a better future.”...

The disclosure of the Biden legal team’s internal decision came as an ideologically broad range of advocacy groups — nearly two dozen organizations, including the American Civil Liberties Union, Amnesty International, FreedomWorks and the Faith and Freedom Coalition — stepped up pressure on the Biden administration not to recall inmates from home confinement when the emergency ends.

Notably, however, those organizations issued a letter framing their request in terms of Mr. Biden using his clemency powers to resolve the issue. “On the campaign trail and during your presidency, you have spoken about the importance of second chances,” according to the letter. “This is your opportunity to provide second chances to thousands of people who are already safely out of prison, reintegrating back into society, reconnecting with their loved ones, getting jobs and going back to school. We urge you to provide clemency now to people under CARES Act home confinement.”

I do not find this news especially surprising; if there was any considerable legal wiggle room here, I think the Justice Department would have spoken some time ago.  And, as this article highlights, I have sensed that a number of advocates have been talking up blanket clemency as the most fitting way to resolve this issue.  But I am always eager to highlight the point I made in this recent post, titled "Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?," that Congress readily could (and I think should) enact a statute that provides for the home confinement program to be extended beyond the end of the pandemic.

In addition, as I highlighted in this recent post, another option for case-by-case relief is through compassionate release motions.  This is how Gwen Levi got relief, and such motions have the potential to reduce sentences and not just allow these sentences to be served at home.  Of course "the volume of work required" for so many CR motions would be considerable, but the Justice Department could (and I think should) support and even bring sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).

Some prior recent related posts:

July 19, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, July 16, 2021

"How the Criminal Justice System's COVID-19 Response has Provided Valuable Lessons for Broader Reform"

The title of this post is the title of this notable new research brief written by multiple authors and distributed by RAND Corporation.  I recommend the full document, and here is how it is introduced:

To better understand the challenges that the COVID-19 pandemic has created within the criminal justice system and how the various sectors of the system have adapted to those challenges, the Priority Criminal Justice Needs Initiative conducted a series of panel workshops with representatives of different sectors within the system.  Panels focused on law enforcement, the court system, institutional corrections, community corrections, victim services providers, and community organizations.  This brief presents key lessons learned and recommendations offered by panel workshop participants.

And here is a closing section that is dear to my data-nerd heart:

There is an urgent need to assess what data need to be collected now, as the pandemic continues, for fear of losing the chance to assess what has been learned and how the changes made have performed.  For example, in some agencies, there have been significant differences in the doses of justice intervention received by different people, and solid information about how those doses varied might become very difficult to reconstruct after their program involvement is complete.  What the system did — and the value of it continuing to do some of those things — is part of the story, and the collection of data to support research and evaluation efforts going forward can help support the case for maintaining some of those practices.  And some of the most important lessons from the pandemic come from what the system did not do, including the choice to not arrest many people and not require some individuals to complete their original sentences or periods of detention for particular crimes and violations.  Lessons can be learned from what that inaction means for potential changes that could be made to the justice system of the future.

July 16, 2021 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Thursday, July 15, 2021

Federal prison population starting to grow again as we approach six months into Biden Administration

The day after Joe Biden was inaugurated, I authored this post posing this question in the title: "Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?".  That post highlighted notable realities about the the federal prison population (based on BOP data) during recent presidencies: during Prez Obama's first term in office, the federal prison population (surprisingly?) increased about 8%, climbing from 201,668 at the end of 2008 to 218,687 at the end of 2012; during Prez Trump's one term, this population count (surprisingly!) decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021.

Of course, lots of factors play lots of expected and unexpected roles in shaping federal prosecutions and sentencings, and broader phenomena like the COVID pandemic can impact the federal prison population more than specific justice policies.  Consequently, I was disinclined to make any bold predictions about what we might see in the Biden era, though I suggested we should expect the federal prison population to be relatively steady at the start because it could take months before we saw any major DOJ policy changes and many more months before any policy changes started impacting the federal prison population count.  

Sure enough, when we hit the "100 days" milestone for the Biden Administration, I noted in this May 6, 2021 post that the federal prison population clocked in at 152,085 according to the federal Bureau of Prisons accounting.  In other words, no significant prison population growth early on in the Biden era.  But two months later, as we approach the six month mark for the Biden Administration, the federal prison population is starting to really grow again according to the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage.  Specifically, as of the ides of July 2021, the federal prison population clocks in at 154,596.

A BOP-measured growth of over 2500 federal inmates in just over two months strikes me as pretty significant, although I would guess that an easing of the COVID pandemic is the primary explanation.  The number of federal sentencings and the number of persons required to report to begin serving federal sentences have likely increased significantly in the last few months; I doubt any new Biden Administration (or AG Garland) policies or practices account for the (now 2%) growth in the federal prison population during the first six months of Joe Biden's presidency.

That said, I hope I am not the only one watching this number closely.  Especially given that the COVID pandemic is not really over and that a lot more surely could be safely "cut" from a bloated federal prison population, it will be quite disappointing if the Biden first term replicates the Obama first term marked by quite significant federal prison population growth.

July 15, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Tuesday, July 13, 2021

Interesting (but unclear) local report on federal sentencings in NYC impacted by COVID realities

The New York Daily News has this interesting (but less-than-clear) article discussing some federal sentencing issues under the headline "Brutal conditions in NYC jails during COVID pandemic caused federal judges to impose lighter sentences: analysis."  Here are excerpts:

Federal judges handed down dozens of lighter sentences due to brutal conditions in New York City’s federal jails during the coronavirus pandemic, new statistics obtained by the Daily News show.

A Daily News analysis of 43 cases involving people who could not afford their own attorneys shows that judges in Manhattan and Brooklyn federal courts imposed sentences that were on average 58% lower than what federal guidelines recommended.  In nearly all of the cases, judges either cited coronavirus conditions behind bars in their sentences, or attorneys emphasized the conditions in legal briefs.

In one case in July 2020, Judge Paul Engelmayer noted that punishment for Juan Carlos Aracena De Jesus’ illegal reentry into the U.S. after being deported was never supposed to include catching coronavirus. “I am mindful ... that you have served most of your time in prison so far during the worst pandemic in this country during the past 100 years,” Engelmayer said. “I’m mindful that your experience in prison as a result of the pandemic, the preceding lockdown, the ensuing lockdown, and your own illness was frightful. Prison is supposed to be punishment, but it is not supposed to be trauma of that nature or close.” While the sentence guidelines in the case was for 30-37 months, Engelmayer sentenced Aracena to time served.  He had spent six months at the Metropolitan Correctional Center in Manhattan.

Judge Paul Oetken went so far as to come up with a formula for how much credit inmates should receive toward a sentence if they were behind bars during the pandemic. “I do believe that because it’s been harsher than a usual period that it’s more punitive, that it’s essentially the equivalent of either time and a half or two times what would ordinarily be served,” Oetken said on April 2 while sentencing a low-level crack dealer.  The sentence amounted to time served for the dealer, Daniel Gonzalez, who said he has a recurring foot infection due to unsanitary showers at MCC.

In all the cases, COVID was not the sole factor judges used to determine sentences.  Judges also considered an inmate’s health, the nature of the crime and other factors.  For Victor Marmolejo, 47, the risk of deadly consequences from his diabetes resulted in him receiving an 18-month sentence when prosecutors had asked for up to four years....

Lawsuits have alleged that coronavirus ravaged the MCC in Manhattan and the Metropolitan Detention Center in Brooklyn and that staff failed to implement commonsense preventative measures. Inmates, meanwhile, were kept in lockdown and had limited or no access to family and their attorneys.  Judges have become unusually outspoken about problems at the MCC and MDC since the pandemic began....

The head of the Federal Defenders in Brooklyn, Deirdre Von Dornum, said the cases where incarcerated pretrial detainees received shorter-than-guidelines sentences based on medical and jail conditions were “far more” than they usually get.  “COVID-19 did not change the sentencing calculus.  Consistent with governing sentencing law, judges have always taken medical conditions and medical risks into account.  What changed was the breadth and depth of this medical crisis and the clear inability of MDC and MCC to protect those in their custody and care who had pre-existing medical conditions,” Von Dornum said.

I am not at all surprised to hear accounts of federal judges taking COVID-related matter into account at sentencing.  Indeed, the instructions Congress has set forth for sentencing judges in 18 USC § 3553(a) really mandates consideration of factors that COVID realities can impact in various ways.  So, what is most notable and important is not just how, but really how much, judicial sentencing decision-making is being impacted by COVID matters.

Unfortunately, this Daily News report, which the article describes as an "analysis of 43 cases involving people who could not afford their own attorneys" in Manhattan and Brooklyn federal courts, is too opaque to provide a clear picture of COVID-era sentencing realities.  During the COVID era, there have probably more than 1000 cases sentenced in Manhattan and Brooklyn federal courts, so the 43 cases analyzed by the Daily News are likely not truly representative.  Moreover, even before COVID, judges in the Eastern and Southern Districts of New York typically imposed within-guideline sentences in only about 25% of all cases.  So lots of below-guideline sentences for lots of reasons was the norm even before COVID.

That all said, the impact of COVID on sentencing practices presents critical and hard questions that I am pleased to see this local newspaper discuss.  I hope more media, as well as federal agencies and academics and many others, will keep seeking to explore these important issues.

July 13, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, July 11, 2021

"Innocence in the Shadow of COVID-19: Plea Decision Making During a Pandemic"

The title of this post is the title of this new article by Miko Wilford, David Zimmerman, Shi Yan, and Kelly Sutherland published in the Journal of Experimental Psychology: Applied. Here is its abstract:

Over 95% of criminal convictions in the United States are the result of guilty pleas.  Consequently, it is critical that we ensure the process of pleading guilty is as free of coercion as possible.  Yet, research has indicated that incarcerating defendants to await trial could have an undue influence on their decision to plead guilty.  The current research employed a novel computer simulation to examine the impact of the COVID-19 pandemic on plea decision making among the innocent and the guilty when faced with potential pretrial detention.  While presenting COVID-related information to participants increased both true and false guilty pleas, further analyses indicated that concerns about COVID-19 weighed more heavily on the innocent than the guilty.  These findings illustrate the negative impact a pandemic could have in combination with a system of pleas that often allows prosecutors to provide defendants with just one guaranteed respite from jail — a guilty plea.

July 11, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, July 06, 2021

Gwen Levi, face of federal home confinement cohort at risk of prison return, granted compassionate release

In prior posts (some linked below), I have discussed the Office of Legal Counsel memo which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  In this recent post, I noted one person at risk of serving many more years in prison after success on home confinement, Gwen Levi, who was getting particular attention because she had already been re-incarcerated on the basis of a seemingly minor technical violation.

I expressed hope in that post that she might succeed with sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).  I am now happy to be able report that she has prevailed on such a motion, as detailed in this USA Today article headlined "Woman who was arrested after missing officials' phone call while in computer class is headed home":

An elderly woman who was recently arrested after she missed phone calls from officials while attending a computer class — a possible violation of her home detention — is headed back home following a federal judge's decision to grant her request for compassionate release.

In a four-page ruling Tuesday, U.S. District Judge Deborah C. Chasanow said "it would do little" to force Gwen Levi – a 76-year-old who's in remission from lung cancer and whom the Justice Department had deemed nonviolent – to serve the entirety of her sentence. "During her incarceration, she took many courses, worked, and completed drug education," Chasanow wrote, noting Levi's age, medical conditions and lack of major disciplinary problems.

Levi is among the more than 24,000 federal prisoners who, under the Trump administration, were allowed to serve their sentence through home detention to slow the spread of COVID-19 behind bars. But a Justice Department memo issued in the final days of the Trump administration said inmates whose sentences will extend beyond the pandemic must be brought back to prison. That included Levi, who has four years left to serve, and about 4,000 other prisoners, some of whom have secured jobs and gone back to school....

More recently, Levi attracted media attention after a trip to a computer class led to her arrest. Levi believed she had been approved to go to the class, her attorney said. She had turned her phone off, unaware that officials at her halfway house would be calling her several times. Levi was arrested four days later. A Bureau of Prisons report called the incident an "escape."

Levi was serving more than 30 years for drug conspiracy charges. Her sentence was reduced to 24 years as part of the First Step Act, a Trump-era criminal justice bill that shortened punishments for nonviolent drug crimes. Before her arrest last month, Levi had been on home confinement for 13 months.

In her ruling granting the request for compassionate release, Chasanow said Levi "has done well on home confinement," notwithstanding the incident that led to her arrest.

In a statement following Chasanow's decision, Kevin Ring, president of Families Against Mandatory Minimums, said: "Sending her back to prison for going to a computer class was shameful. She deserves to be home," Ring said. "But the fight is far from over. It's time for the Biden administration to ensure that the 4,000 people on home confinement get to stay home with their families, too."

Advocacy groups have been urging the Justice Department to rescind the Trump-era legal memo, but the administration does not believe the issue is urgent. The Justice Department said in May that inmates with years left to serve are not likely to be sent back to prison anytime soon because the public health crisis is expected to last for the rest of the year.

Some prior recent related posts:

July 6, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered | Permalink | Comments (0)

Thursday, July 01, 2021

Hoping grandmothers and others on home confinement get compassionate consideration

In prior posts (some linked below), I have discussed the Office of Legal Counsel memo which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  There has been particular advocacy directed toward Prez Biden urging him to use his clemency powers to keep these persons from being returned to federal prison, and I have recently argued Congress could and should address this matter with a statutory fix.  But, critically, judges also might be able to grant relief on a case-by-case basis via sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).

One person at risk of serving many more years in prison after success on home confinement, Gwen Levi, is getting particular attention because she seems like low-risk person who has already been re-incarcerated on the basis of a seemingly minor technical violation.  Here are just some of the stories discussing her plight:  

From The Root, " 76-Year-Old Black Woman Released From Prison Amid Pandemic, Sent Back for Missing Phone Calls While Taking a Class"

extraordinary and compelling reasonsFrom USA Today, "'Scared and confused': Elderly inmate sent home during COVID is back in prison after going to computer class"

From the Washington Post, "A grandmother didn’t answer her phone during a class. She was sent back to prison."

Upon hearing about this story, I expressed on Twitter my hope that Gwen Levi was pursuing a compassionate release motion.  Kevin Ring of FAMM informed me not only that she was, but also that he had submitted a letter in support of her effort to secure a sentence reduction.  Kevin recently sent me a copy of this letter and has allowed me to post it here:

Download ECF 2079 Kevin Ring letter in support of comp. release

Though I do not know all the facts surrounding the crimes and current circumstances of Gwen Levi and the 4000 other persons on home confinement at risk of going back into federal prison, I do know that these situations certainly seem to present "extraordinary and compelling reasons" to consider whether further prison time is needed.  

Some prior recent related posts:

July 1, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, June 28, 2021

Still more great new essays in Brennan Center's "Punitive Excess" series

highlighted here a few months a terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I am pleased to see that new essays are continuing to be added to the series now on a weekly basis, and here are the three most recent entries everyone should be sure to check out:

Prior related posts:

June 28, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)