Wednesday, April 21, 2021

"Assessing the Mortality Impact of the COVID-19 Pandemic in Florida State Prisons"

The title of this post is the title of this notable new paper by multiple authors with this abstract:

Background

The increased risk of COVID-19 infection among incarcerated individuals due to environmental hazards is well known and recent studies have highlighted the higher rates of infection and mortality prisoners in the United States face due to COVID-19.  However, the impact of COVID-19 on all-cause mortality rates in incarcerated populations has not been studied.

Methods

Using data reported by the Florida Department of Corrections on prison populations and mortality events we conducted a retrospective cohort study of all individuals incarcerated in Florida state prisons between 2015 and 2020.  We calculated excess deaths by estimating age-specific expected deaths from mortality trends in 2015 through 2019 and taking the difference between observed and expected deaths during the pandemic period.  We calculated life table measures using standard demographic techniques and assessed significant yearly changes using bootstrapping.

Findings

The Florida Department of Corrections reported 510 total deaths from March 1, 2020 to December 31, 2020 among the state prison population.  This was 42% higher (rate ratio 1.42, 95% CI 1.15 to 1.89) than the expected number of deaths in light of mortality rates for previous years.  Reported COVID-19 deaths in a month were positively correlated with estimated excess deaths (80.4%, p <.01).  Using age-specific mortality estimates, we found that life expectancy at age 20 declined by 4 years (95% CI 2.06-6.57) between 2019 and 2020 for the Florida prison population. 

Interpretation

The Florida prison population saw a significant increase in all-cause mortality during the COVID-19 pandemic period, leading to a decrease in life expectancy of more than four years.  Life years lost by the Florida prison population were likely far greater than those lost by the general United States population, as reported by other studies.  This difference in years lost highlights the need for increased interventions to protect vulnerable incarcerated populations during pandemics.

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

Tuesday, April 20, 2021

Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement?

The question in the title of this post is what I keep wondering as days pass since I saw this FAMM press release from last Friday and yet still fail to see any updated official information from the Department of Justice or the the Bureau of Prisons.  The FAMM press release, dated April 16, 2021, starts this way (my emphasis added):

FAMM President Kevin Ring released the following statement in response to the Department of Justice (DOJ) releasing a memo expanding the criteria for home confinement.

“We’re grateful that that the new administration heeded the widespread calls to make more people eligible for home confinement,” Ring said. “The original criteria were too narrow. These changes will protect vulnerable people in federal prisons.

“We are extremely disappointed, however, that the administration has not rescinded or overruled the legal memo that could force people on home confinement back to prison when the pandemic subsides.  Thousands of families are rightfully anxious that they will be separated again soon.  We worry that today’s announcement will result in more families being in the same boat.”

I understand why the FAMM release expresses concern that the Biden Administration has not yet addressed the worrisome OLC memo discussed in this post that would require returning some folks to prison post-pandemic.  But, in the short term, I am quite concerned that an important memorandum expanding the criteria for home confinement seemingly has not yet been made widely publicly available.

Notably, on this DOJ coronavirus page, there is no link to or any reference to a new DOJ memo on home confinement criteria.  And this BOP COVID page still states expressly that "eligibility requirements for an inmate to be considered for Home Confinement are set forth in the Attorney General's March 26 and April 3, 2020 Memoranda."  Given these webpages, one might say that DOJ and BOP are now not just guilty of a lack of transparency on an important matter of public concern, but they are actually providing misleading information about what the current home confinement criteria are right now.

Misleading information about home confinement criteria is not just problematic for persons in federal prisons and their families who might think they ought to be eligible for home confinement.  It is also problematic for federal judges around the country who are considering compassionate release motions and who might be influenced by the new home confinement criteria in their decision-making.  And, most fundamentally, it is problematic for the American people who have every right to expect and demand that consequential criminal justice decisions by government actors will be transparent and clear, not hidden and opaque.

UPDATE:  The folks at FAMM have posted here what looks like the full text of the new "Updated Home Confinement Guidance under the CARES Act  [as of] April 2021"  Here is how this document gets started:

On Wednesday, April 14, 2021, FAMM received the text of a memo outlining new criteria for home confinement under the CARES Act.  As of this time, the memo has not been shared online by the BOP or Justice Department, but a BOP spokesperson confirmed to The Marshall Project that this memo was sent to all BOP facilities.

Frustratingly, it is hard to tell from the text of this still-officially-secret DOJ memo just how the criterial for home confinement has been changed and how many current federal prisoners might be impacted by the change.  Moreover, the memo also says that it "provides updated guidance and direction and supercedes the memorandum dated November 16, 2020," but I am not sure that November 16 memo was ever made public.  Sigh. 

April 20, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (6)

Sunday, April 18, 2021

Big new report examines "U.S. Criminal Justice System in the Pandemic Era and Beyond"

I just saw this big new 350+ page report from the Priority Criminal Justice Needs Initiative, which is a partnership of the RAND Corporation, the Police Executive Research Forum (PERF), RTI International, and the University of Denver.  The full report title highlights what it tackles and why it is so long: "The U.S. Criminal Justice System in the Pandemic Era and Beyond: Taking Stock of Efforts to Maintain Safety and Justice Through the COVID-19 Pandemic and Prepare for Future Challenges."  This webpage provides highlights, and here are excerpts therefrom:

In an effort to gather lessons learned from the responses of different justice agencies to the pandemic, the Priority Criminal Justice Needs Initiative convened a set of workshops at the end of September 2020 with justice agency representatives and others to take stock of what had been done and look toward the future.  A variety of common challenges and innovations were identified in the workshops that assisted in continuing the operation of the system through the pandemic and also might support broader reforms and justice system innovation going forward.

Key Findings

Shifts in crime during the pandemic had implications throughout the system

  • Increases in such offenses as domestic violence created new needs, made some strategies for responding more difficult, and magnified demands on service providers.

Physical infrastructure can constrain responses to infectious disease

  • Responding to the pandemic required space to physically distance, and the high density of many facilities in the criminal justice system made that exceedingly difficult.

A shift to virtual access to justice could be valuable, but it could leave some behind

  • Connecting to the justice system virtually was useful during the pandemic, and preserving it going forward could be valuable. For tasks where it is appropriate, virtual justice can make participation in justice processes much less burdensome for the public and save resources for justice agencies.
  • However, shortcomings in the availability, speed, and capacity of internet infrastructure mean that the benefits of virtual options will not be universally shared.

A justice system can respond more effectively than a group of justice organizations acting independently

  • Collaborating with public health agencies was noted as important. Panelists discussed examples where the decisions in one part of the system affected others, and although those choices might have been unavoidable, more coordination and information-sharing might have cushioned effects throughout the system.

Challenges remain to protect the health and safety of emergency responders during large-scale disasters

  • Mental health consequences from the stresses of the pandemic already are occurring, and panelists wondered whether responders would have long-term consequences from COVID-19.

Recommendations

  • Panelists identified several promising practices related to virtual components of the justice process that stakeholders might consider continuing. For law enforcement and the courts, panelists recommended maintaining virtual access to the courts, virtual police calls for service, and elements of in-person court processes, such as jury selection. Panelists also recommended maintaining virtual connectivity between courts and corrections agencies. For community corrections and victim services organizations, panelists recommended maintaining virtual service-delivery models.
  • Panelists identified work models and processes that will be useful beyond the pandemic, including flexible schedules, telework models, and paperless processes to improve efficiency.
  • Panelists noted communication and connectivity practices, including use of virtual platforms to support leadership and community situational awareness among law enforcement. For institutional corrections, panelists recommended maintaining expanded use of virtual and video visitation systems. For victim services, panelists recommended maintaining alternative approaches to reach victims in need, such as text lines.
  • Panelists also identified some sector-specific recommendations, such as integrating corrections agencies into public health planning, preserving reductions in inmate density to reduce disease risk, and strengthening partnerships to enable service delivery to victims during crisis periods.

April 18, 2021 in Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Sunday, April 11, 2021

Headlines providing more reminders of how COVID meets mass incarceration

A number of notable reads about the state of COVID in incarceration nation in recent days.  Here are some headlines and links:

From the AP, "As states expand vaccines, prisoners still lack access"

From Business Insider, "Thousands of inmates given the chance to serve their sentence at home because of COVID-19 might go back to prison cells"

From Reuters, "Thousands of low-level U.S. inmates released in pandemic could be headed back to prison"

Fom the New York Times :

From Undark magazine, "Prisons Are Covid Hotspots. But Vaccine Access Remains Patchy."

April 11, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Thursday, April 01, 2021

CCJ's National Commission on COVID-19 and Criminal Justice releases "Impact Report: COVID-19 Testing in State Prisons"

noted here some months ago that the Council on Criminal Justice (CCJ) had launched an important, timely and impressive new commission titled the "National Commission on COVID-19 and Criminal Justice" and headed by two former US Attorneys General.  That commission has already helped produce a number of important works (examples here and here and here), and I see that it released today this notable new report on COVID testing in prisons.  Here are the highlights as set forth in the relatively short report (with emphasis in original):

Highlights

+ As of February 16, 2021, one of every three prisoners in 32 states with available testing data tested positive for COVID-19 — more than four times the rate outside of prisons.  Additionally, the COVID-19 death rate inside prisons is more than three times the community rate.

+ There was substantial variation across state prison systems in testing rates. Of the 32 states, three had testing rates of 1,000 per 1,000 individuals incarcerated, or lower (less than one test per person), while six had rates of 10,000 or higher (10 or more tests per individual).

+ Higher testing rates and, in particular, mass testing, especially in states that implemented this strategy early in the pandemic, likely resulted in lower rates of COVID-19 mortality behind bars. It is possible that early detection of coronavirus infections led to more and better prevention and treatment measures that improved outcomes.

  • States with lower disparities between prison and community death rates tested prison residents at rates that were nearly double those of states with higher prison/community disparities.  Positivity rates for lower-disparity states were almost half as high.
  • States that did not use a mass-testing strategy for their incarcerated populations had COVID-19 death rates among incarcerated people that were nearly eight times the death rate for non-incarcerated populations similar in age, gender, and race/ethnicity.  This disparity was cut in half in states that implemented a mass testing strategy.

+ Four states that carried out mass testing — Colorado, Connecticut, Michigan, and Vermont — varied in their specific protocols but had relatively good COVID-19 outcomes compared to other state prison systems.

+ Taken together, the evidence suggests that more testing, early testing, and early mass testing may have been strategies that helped states achieve lower rates of COVID-19 mortality behind bars, although causality cannot be conclusively established.

April 1, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Monday, March 29, 2021

NY Supreme Court finds that excluding incarcerated people in New York from vaccine access is "arbitrary and capricious and violates Equal Protection"

A state judge in New York Supreme Court ruled today that New York violated the constitutional rights of incarcerated people by refusing to offer them COVID-19 vaccines at the same time it was offered to other groups in congregate settings. In Holden v. Zucker, No. 801592/2021E (N.Y. S. Ct. Mar. 29, 2021) (available here), the judge ordered that every incarcerated person in the state be made eligible for the vaccine immediately, and here is part of her discussion:

In all material respects, incarcerated adults face the same heightened risk of infection, serious illness, and death, as people living in other congregate settings, and even more so than juveniles in detention centers, where individuals have been prioritized for the vaccine.  Moreover, CDC has recommended those confined in jails and prisons should be vaccinated at the same time as those working in the very same facilities.  However, Respondents have excluded those confined in prisons and jails from the COVID-19 vaccine, while granting access to correctional workers, as well as those working and living in other government-run congregate facilities. This Court finds that this exclusion is by definition arbitrary and capricious and violates Equal Protection....

Respondents have irrationally distinguished between incarcerated people and people living in every other type of adult congregate facility, at great risk to incarcerated people’s lives during this pandemic, in violation of State and Federal Equal Protection guarantees, and their decision must be vacated and modified to allow incarcerated individuals as a group to access vaccine eligibility in phase 1b.  People working and living together are at exponentially heightened risk for contracting COVID-19, a virus that can cause long-term health complications and death.  In light of this, New York’s Health Commissioner and Governor Cuomo have specifically prioritized vaccinations for thousands of New Yorkers who work and live in congregate facilities that are the breeding grounds for this deadly virus.  This prioritization is consistent with the unanimous recommendations of the CDC and public health and medical experts.  Despite these scientific recommendations, Respondents have excluded individuals who are incarcerated.  There is no acceptable excuse for this deliberate exclusion as COVID-19 does not discriminate between congregate settings.

March 29, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

Friday, March 26, 2021

The new death penalty: latest reporting chronicles that COVID has now killed more than 2500 prisoners in the United States

I have been pleased that the encouraging slow down in the number of national COVID deaths has also been reflected in prisoner COVID death in recent times: though prisoner COVID death increased by over 100 some weeks in December and January, lately there have been only about a dozen weekly deaths reported.  However, I am still sad to be reporting that we have now passed yet another remarkable milestone in COVID prisoner deaths according to the data assembled by The Marshall Project. 

I am grateful that The Marshall Project is continuing the critical job of counting via this webpage prisoner deaths from coronavirus, reports as of Thursday, March 25, 2021 that there are now "at least 2502 deaths from coronavirus reported among prisoners."  It should come as no surprise to regular readers that we have generally seen increases and decreases in COVID cases and deaths that largely track the general population; in this particular context, prisons are very much reflective of broader community realities.   We are also seeing a relatively reduction in reports of correctional staff dying from COVID, but The Marshall Project still reports we are up to "at least 195 deaths from coronavirus reported among prison staff." 

I am hopeful that we are not far from having all incarcerated persons and staff fully vaccinated, though there are disconcerting reports of vaccines not being made available to prisoners and of prison staff refusing to get vaccinated.

A few of many prior related posts:

March 26, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

Friday, March 19, 2021

"Bottleneck: The Place of County Jails in California’s COVID-19 Correctional Crisis"

The title of this post is the title of this new paper now on SSRN authored by Hadar Aviram. Here is its abstract:

This Article examines a lesser-known site of the COVID-19 epidemic: county jails.  Revisiting assumptions that preceded and followed criminal justice reform in California, particularly Brown v. Plata and the Realignment, the Article situates jails within two competing/complementary perspectives: a mechanistic, jurisdictional perspective, which focuses on county administration and budgeting, and a geographic perspective, which views jails in the context of their neighboring communities.  The prevalence of the former perspective over the latter among both correctional administrators and criminal justice reformers has generated unique challenges in fighting the spread of COVID-19 in jails: paucity of, and reliability problems with, data, weak and decentralized healthcare policy featuring a wide variation of approaches, and serious litigation and legislation challenges.  The Article concludes with the temptation and pitfalls of relying on the uniqueness of jails to advocate for vaccination and other forms of relief, and instead suggests propagating a geography-based advocacy, which can benefit the correctional landscape as a whole.

March 19, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Notable new review and accounting of COVID and federal compassionate release results

Vice News has this effective and thorough new piece bringing together a lot of notable data on federal compassionate release in the COVID era under the full headline "Prisoners Keep Dying of COVID While ‘Compassionate Releases’ Stall in Court: At least 54 federal prisoners have died from COVID-19 after having a compassionate release request denied or left pending."  Though the headline is focused on prisoner deaths, the lengthy article covers a lot of ground is worth reading in full.  Here are excerpts (with links from the original):

Steven Brayfield was almost home. The 63-year-old from Springfield, Missouri, fought over six months for “compassionate release,” arguing in his emergency bid for freedom that he’d be unlikely to survive a coronavirus outbreak in federal prison. In the end, he was proven right.

Brayfield suffered from Type 2 diabetes, kidney problems, and obesity, among other health issues. He first asked his warden for compassionate release in July, when the dangers of COVID-19 in prison were already well documented but before the virus began to wreak havoc inside the minimum-security camp at the U.S. Penitentiary in Leavenworth, Kansas. He had just under two years left to serve on a non-violent, meth-related drug conviction....

But by Jan. 3, he was running a fever and tested positive for COVID. As he was struggling to breathe, prison staff escorted him to the hospital, where he was handcuffed to the bed. The next day, Brayfield’s judge granted his compassionate release request, reducing his sentence to time served. But his condition worsened and doctors put him on a ventilator. His public defender asked the judge to reverse the ruling, telling the court that if Brayfield died a free man, his family would be unable to afford the medical bills. He hung on until Jan. 19, remaining a federal prisoner until his last gasps for air. “You keep on thinking, my god, he’s so close to coming home,” said Shirley Marler, Brayfield’s 84-year-old mom. “Well, he came home alright, but in a box.”

Brayfield is one of at least 54 federal prisoners to die from COVID-19 after having a compassionate release request denied or delayed without a final resolution, according to data provided to VICE News.  The data, compiled by the University of Iowa’s College of Law’s Federal Criminal Defense Clinic, shows how a deluge of compassionate release requests during the pandemic overwhelmed the recently reformed system, leading to vulnerable people dying behind bars when they were eligible for freedom. 

Additional analysis of over 4,000 cases, based on data compiled by a researcher at Georgetown Law School and shared with VICE News, highlights a lasting legacy of former President Donald Trump: Judges appointed by Republicans grant compassionate releases at lower rates than Democratic appointees. Trump’s prolific stacking of the federal courts, where judges serve for life, will likely shape the way such cases are handled for many years to come. 

From 2020 to mid-January 2021, federal judges granted compassionate release to 2,271 prisoners, according to data provided to VICE News by the Administrative Office of the U.S. Courts in Washington, D.C. The rulings freed people who might have otherwise contributed to the tragic toll of COVID-19 (225 deaths and counting) inside the federal Bureau of Prisons.

In years past, compassionate release was virtually impossible for federal prisoners to obtain—an option made available only in life-or-death emergencies, at the discretion of prison officials. Between 2013 and 2017, the BOP approved just 6 percent of requests, letting out over 300 people, while 266 others died in prison custody after their requests were denied.

The passage of the First Step Act in 2018 reformed the system, allowing federal prisoners under “extraordinary and compelling” circumstances to petition their sentencing judges directly for compassionate release. Prisoners still have to “exhaust” their options within the BOP, but after 30 days the request goes to the courts. Prosecutors typically argue against the person getting out, and defendants can submit evidence such as medical records or letters of support. But even with the changes, compassionate releases remained rare at first. In 2019, judges granted fewer than 100 total, according to the Administrative Office of the Courts.

The pandemic changed everything. Coronavirus turned federal prisons into death traps, especially low-security institutions with dorm-style housing units. Suddenly the federal courts were flooded with compassionate release requests, with judges receiving more than 10,000 applications in just three months, from last March to May. Those who follow the courts closely have been frustrated by inconsistent applications of the law or lack of leniency by judges, especially ones appointed by Trump and George W. Bush.

A few of many prior related posts:

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

Thursday, March 11, 2021

"How Compassionate? Political Appointments and District Court Judge Responses to Compassionate Release during COVID-19"

The title of this post is the title of this notable new paper authored by Victoria Finkle now available via SSRN. Here is its abstract:

This paper seeks to examine how judges are deciding compassionate-release motions in the wake of the COVID-19 pandemic, which has proven particularly deadly inside the nation’s prisons.  I explore how judges appointed by Republicans and Democrats have ruled in more than 4,000 federal compassionate-release cases since March 2020, finding that judges appointed by Democrats are granting compassionate release at far higher rates than their Republican counterparts, with Trump judges granting among the fewest requests. 

The First Step Act of 2018 gave incarcerated individuals the right to file a motion for early release in court in light of “extraordinary and compelling” circumstances, and requests for release have skyrocketed since the outbreak of the virus.  The unique conditions of the pandemic, high levels of virus transmission in prisons, and the highly discretionary nature of the compassionate-release statute together offer a natural experiment for considering how judicial ideology impacts real lives.  The results of this analysis underscore the importance of the fight over control of the judiciary going forward.

March 11, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Bureau of Justice Statistics releases new report on "Impact of COVID-19 on the Local Jail Population, January-June 2020"

The Bureau of Justice Statistics yesterday released this notable new report titled "Impact of COVID-19 on the Local Jail Population, January-June 2020."  Here is part of the start of the document and its listed "Highlights."

Local jails in the United States experienced a large decline (down 185,400 inmates) in their inmate populations from June 30, 2019 to June 30, 2020, which can be attributed mainly to the COVID-19 pandemic (figure 1 and table 1). The inmate population confined in local jails was 549,100 at the end of June 2020, down from 734,500 at the end of June 2019. The midyear 2020 inmate population was the lowest since 1996, when 518,500 inmates were confined in local jails (not shown in tables).

The impact of COVID-19 on local jails began in March 2020, with a drop of 18% in the inmate population between the end of February and the end of March, followed by an 11% drop by the end of April. By the last weekday in April 2020, the number of jail inmates dropped to a low of 519,500. By the end of May 2020, the population increased about 3% and was up another 2% by the end of June 2020.

The decline in the inmate population since midyear 2019 resulted from both a reduction in admissions to jails and expedited releases in response to the COVID-19 pandemic from March to June 2020.

Local jails reported 8.7 million admissions during the 12-month period ending June 30, 2020, which was about 16% lower than the 10.3 million admissions during the 12-month period ending June 30, 2019 (appendix table 10)....

This special report is the first of two that describe the impact of COVID-19 on the local jail population. BJS will release a final report that will include results from July to December 2020.

HIGHLIGHTS:

  • From March to June 2020, about 208,500 inmates received expedited release in response to COVID-19.

  • During the pandemic, jail facilities became less crowded, as indicated by the decrease in occupied bed space from 81% at midyear 2019 to 60% at midyear 2020.

  • The number of inmates held for a misdemeanor declined about 45% since midyear 2019, outpacing the decline in the number of inmates held for a felony (down 18%).

  • The percentage of inmates held for a felony increased from 70% at midyear 2019 to 77% at midyear 2020.

  • From March to June 2020, jails conducted 215,360 inmate COVID-19 tests. More than 11% of these tests were positive.

  • Jails in counties with confirmed residential COVID-19 infection rates of 1% or more tested nearly 21% of persons admitted to their jails from March to June 2020. 

  • From March to June 2020, nearly 5% (10,850) of all local jail staff (233,220) tested positive for COVID-19.

March 11, 2021 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, February 26, 2021

New coalition letter urges Prez Biden "to aggressively reduce jail and prison populations" in first 100 day

Via email this afternoon, I learned of this new extended letter addressed to Prez Biden on behalf of The Leadership Conference on Civil and Human Rights and organizations urging various criminal justice with particular focus on "the health and safety of incarcerated individuals during the COVID-19 pandemic." The full letter covers lots of ground, and here is its first substative paragraph:

While the pandemic jeopardizes everyone’s safety, incarcerated individuals are much more likely to be people with disabilities or to have pre-existing health conditions, making them exceptionally vulnerable due to overcrowding, unsanitary prison conditions, and a lack of access to quality healthcare services.  Though the COVID-19 vaccine is a critical advancement, distribution to incarcerated populations will take precious time, and correctional medical experts expect participation rates will be low because the Bureau of Prisons (BOP) has failed to pair vaccine rollout with needed outreach and education.  Indeed, BOP has already reported a low adherence rate by staff to the vaccine: a January 15, 2021 BOP press release reported that roughly half of staff had agreed to accept the vaccine.  Moreover, the emergence of new strains of the virus that are potentially more contagious and deadly means that the need to protect high-risk individuals remains as urgent as ever.  To uphold your campaign commitments to advance racial justice and criminal justice reform and effectively confront COVID-19 during your first 100 days, it is imperative that you use existing authorities to aggressively reduce jail and prison populations.

February 26, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Wednesday, February 24, 2021

"Viral Injustice"

The title of this post is the title of this notable new article now available via SSRN authored by Brandon Garrett and Lee Kovarsky.  Here is its abstract:

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect.  Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs.  They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards.  Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes the comprehensive look at the decisional law growing out of the COVID-19 detainee litigation, and situates the judicial response as part of a comprehensive institutional failure.  We read hundreds of COVID-19 custody cases, and our analysis defines the decision-making by reference to three attributes: the substantive right asserted, the form of detention at issue, and the remedy sought.  Several patterns emerged.  Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge — limiting such relief to vulnerable subpopulations.  The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses — including vaccination efforts — and incarceration more generally.  First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments.  Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function.  Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend.  Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

February 24, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 23, 2021

"Tax Administration and Racial Justice: The Illegal Denial Of Tax Based Pandemic Relief To The Nation's Incarcerated"

The title of this post is the title of this notable and timely new article authored by Leslie Book now available via SSRN.  (Among other virtues, this piece provides yet another example of how all areas of law have something to do with sentencing and corrections.)  Here is its abstract:

In the midst of a devastating pandemic that would sicken millions, kill hundreds of thousands, and cause widespread financial distress, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act. CARES provided for the IRS to deliver up to $1,200 for adults and $500 for dependent children.  It was ostensibly structured as a refundable credit to be claimed on a 2020 tax return, but with a twist.  The statute authorized the IRS to pay it in advance, even to those who did not have a tax return filing obligation, and to do so as “rapidly as possible.”  While there were some problems, the IRS generally did remarkably well, and within six months it had delivered about 160 million payments totaling over $270 billion.

This Essay addresses one of those exceptional problems: it involves the IRS’s unexplained change in position on the eligibility of those incarcerated in our nation’s federal, state, and local prisons and jails.  At first, the incarcerated, just like other Americans suffering the effects of the pandemic, received the money that they were entitled to receive under the CARES legislation.  That changed.  In early May of 2020, the IRS announced on its web page that those who were incarcerated were not eligible for immediate cash benefits, worked with prison officials to claw back payments it had made, and stopped in their tracks hundreds of thousands of payments that it had not yet made.  By October, the government faced a complete rebuke of its policy in Scholl v Mnuchin, a class action suit that held that the IRS’s actions were contrary to law and arbitrary and capricious under the Administrative Procedure Act.

By looking at the IRS actions that led to Scholl v Mnuchin, this Essay explores the relationship of tax administration and racial justice.  It reveals how tax administration can normalize and reinforce patterns of racial inequality through the presence of racialized administrative burdens.  Finally, this Essay then considers how the IRS’s actions with respect to restricting payments to the incarcerated population can offer lessons to minimize the risk that future IRS actions will harm people of color, especially given the IRS’s role in delivering benefits.

February 23, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Monday, February 22, 2021

"COVID-19 Cases Among Employees of U.S. Federal and State Prisons"

The title of this post is the title of this notabel new research published in the American Journal of Preventive Medicine.  Here is its abstract:

Introduction

Prior research has found coronavirus disease 2019 (COVID-19) cases to be disproportionately prevalent among U.S. prisoners.  Like prisoners, prison staff experience ventilation and social distancing hazards and may have limited access to testing, paid sick leave, personal protective equipment, and other workplace protections.  Yet, systematic case surveillance among prison staff remains unexplored.  The objective of this study is to document trends in COVID-19 cases among U.S. correctional staff relative to prisoners and the U.S. population.

Methods

Reports of COVID-19 cases among prisoners and staff were collected from state Departments of Corrections and the federal Bureau of Prisons from March 31, 2020 to November 4, 2020. In November 2020, this series of aggregated case records was linked to population estimates to calculate COVID-19 period prevalence among prison staff and residents with comparison to U.S. population trends.

Results

Within the prison environment, COVID-19 case burden was initially higher among staff than prisoners in 89% of jurisdictions.  Case prevalence escalated more quickly among prisoners but has remained persistently high among staff. By November 4, 2020, COVID-19 was 3.2 times more prevalent among prison staff than the U.S. population.

Conclusions

Prison staff experienced substantially higher COVID-19 case prevalence than the U.S. population overall.  Across prison staff and resident populations, cases were rapidly rising in November 2020, indicating poor outbreak containment within the prison environment.  An Emergency Temporary Standard, issued by federal and state Occupational Safety and Health Administrations, and priority vaccination are urgently needed to reduce COVID-19 occupational risk.  Reduced occupational transmission of COVID-19 will benefit workers, incarcerated people, and community members alike.

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

Thursday, February 11, 2021

Senators Durbin and Grassley re-introduce "COVID-19 Safer Detention Act"

As detailed in this post from last June, US Senators Dick Durbin and Chuck Grassley responded to the ugly realities of the COVID pandemic and its impact on incarcerated persons by introducing a modest, but still important, new bill to reform the procedures surrounding federal elderly home release and compassionate release.  Disappointingly, that bill never moved forward in the last Congress, but this press release reports that it is back on the docket for the new Congress.  Here are excerpts from the release:

Amid the COVID-19 public health pandemic, U.S. Senate Democratic Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, authors of the bipartisan First Step Act, landmark criminal justice reform legislation, introduced bipartisan legislation to reform the Elderly Home Detention Pilot Program and compassionate release from federal prisons.  Sadly, more than 200 federal prisoners with pre-existing medical conditions that made them more vulnerable to COVID-19 have died as a result of the virus, more than half of whom were over 60 years old.  Elderly offenders, the fastest-growing portion of the prison population, have much lower rates of recidivism and are much more expensive to incarcerate due to their health care needs.  

Since enactment of the First Step Act, the Federal Bureau of Prisons (BOP) has opposed the vast majority of compassionate release petitions.  Since March of last year, BOP has opposed nearly all compassionate release requests, while courts have granted more than 2,000 over the objections of the Department of Justice and BOP.  BOP has reportedly refused to approve any compassionate releases based on vulnerability to COVID-19.

“My legislation with Senator Grassley would help ensure that the most vulnerable prisoners are quickly released or transferred to home confinement for the remainder of their sentence – just as the First Step Act intended.  This is especially critical during the COVID-19 pandemic to protect against the spread of this deadly virus, which we know thrives in places like prisons.  I’m hopeful that we can take up legislation on a bipartisan basis so we can start to properly implement the First Step Act and protect communities from further COVID-19 outbreaks,” said Durbin.

“In the middle of a pandemic the federal government ought to be doing everything it can to protect the inmates in its care.  We already established important home confinement and early release programs in 2018, which are especially important right now as older inmates face very serious risks because of the virus.  Our bill will clarify and expand those programs we wrote into the First Step Act, so we can better protect these vulnerable populations,” Grassley said.

Specifically, the COVID-19 Safer Detention Act would reform the Elderly Home Detention Pilot Program and compassionate release by:

  • Clarifying that the percentage of time served required for the Elderly Home Detention Pilot Program should be calculated based on an inmate’s sentence, including reductions for good time credits (H.R. 4018, which passed the House by voice vote last Congress); 
  • Expanding the eligibility criteria for the Elderly Home Detention Pilot Program to include nonviolent offenders who have served at least 50 percent of their term of imprisonment;
  • Clarifying that elderly nonviolent D.C. Code offenders in BOP custody are eligible for the Elderly Home Detention Pilot Program and that federal prisoners sentenced before November 1, 1987 are eligible for compassionate release;
  • Subjecting elderly home detention eligibility decisions to judicial review (based on the First Step Act’s compassionate release provision); and
  • Providing that, during the period of the pandemic, COVID-19 vulnerability is a basis for compassionate release and shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days.

Joining Durbin and Grassley in cosponsoring the legislation are Senators Thom Tillis (R-NC), Sheldon Whitehouse (D-RI), Kevin Cramer (R-ND), Chris Coons (D-DE), Roger Wicker (R-MS), and Cory Booker (D-NJ). 

As the release reveals, Senators Durbin and Grassley are now the leading member of the Senate Judiciary Committee, which would seem to improve the odds of this bill moving forward. But, of course, Congress moves in mysterious ways, and I have learned never to expect too much from inside the Beltway.

February 11, 2021 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Saturday, February 06, 2021

New AP report concludes "Federal executions likely a COVID superspreader"

This new Associated Press article details the conclusions of its investigation concerning the spread of COVID-19 in and around the federal facilities responsible for executions at the tail end of the Trump Administration.  Here is how the lengthy piece gets started:

As the Trump administration was nearing the end of an unprecedented string of executions, 70% of death row inmates were sick with COVID-19.  Guards were ill.  Traveling prisons staff on the execution team had the virus.  So did media witnesses, who may have unknowingly infected others when they returned home because they were never told about the spreading cases.

Records obtained by The Associated Press show employees at the Indiana prison complex where the 13 executions were carried out over six months had contact with inmates and other people infected with the coronavirus, but were able to refuse testing and declined to participate in contact tracing efforts and were still permitted to return to their work assignments.  Other staff members, including those brought in to help with executions, also spread tips to their colleagues about how they could avoid quarantines and skirt public health guidance from the federal government and Indiana health officials.

The executions at the end of Donald Trump’s presidency, completed in a short window over a few weeks, likely acted as a superspreader event, according to the records reviewed by AP.  It was something health experts warned could happen when the Justice Department insisted on resuming executions during a pandemic.

It’s impossible to know precisely who introduced the infections and how they started to spread, in part because prisons officials didn’t consistently do contact tracing and haven’t been fully transparent about the number of cases.  But medical experts say it’s likely the executioners and support staff, many of whom traveled from prisons in other states with their own virus outbreaks, triggered or contributed both in the Terre Haute penitentiary and beyond the prison walls.

Of the 47 people on death row, 33 tested positive between Dec. 16 and Dec. 20, becoming infected soon after the executions of Alfred Bourgeois on Dec. 11 and Brandon Bernard on Dec. 10, according to Colorado-based attorney Madeline Cohen, who compiled the names of those who tested positive by reaching out to other federal death row lawyers. Other lawyers, as well as activists in contact with death row inmates, also told AP they were told a large numbers of death row inmates tested positive in mid-December.

In addition, at least a dozen other people, including execution team members, media witnesses and a spiritual adviser, tested positive within the incubation period of the virus, meeting the criteria of a superspreader event, in which one or more individuals trigger an outbreak that spreads to many others outside their circle of acquaintances.  The tally could be far higher, but without contact tracing it’s impossible to be sure.

February 6, 2021 in Death Penalty Reforms, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Wednesday, February 03, 2021

Federal judge in Oregon orders state to vaccinate inmates along with correctional workers

As reported in this local press piece, "A federal judge ordered Oregon officials late Tuesday to immediate offer state prison inmates COVID-19 vaccines."  Here is more about this notable ruling:

U.S. Magistrate Judge Stacie Beckerman granted a temporary restraining order as part of a larger case by a group of prison inmates. They’ve criticized the state’s response to the pandemic inside prisons and argue it’s violated the U.S. Constitution. Beckerman’s ruling applies to more than 12,000 inmates who live in one of the state’s 14 prisons. “Defendants shall offer all [Adults in Custody] housed in [Oregon Department of Corrections] facilities, who have not been offered a COVID-19 vaccine, a COVID-19 vaccine,” she wrote....

Gov. Kate Brown is also named in the lawsuit. Brown’s communications director, Charles Boyle, confirmed Wednesday that the state won’t appeal the decision. “The court’s decision is clear,” Boyle said in a written statement. “We will move ahead with a weekly approach that will integrate adults in custody into our Phase 1a distribution plans.”...

Beckerman’s order comes as the Oregon Department of Corrections has struggled to combat the COVID-19 pandemic. More than 3,000 inmates have tested positive for the virus. Of those, 42 people in custody have died; including 20 in January alone. “From the beginning of the COVID-19 pandemic, it was clear that our country’s prisons were uniquely vulnerable to the transmission and spread of the virus,” Beckerman wrote in her 34-page order. “Oregon prisons have not been spared from this reality, as COVID-19′s toll continues to mount behind bars.”

The full 34-page ruling is available at this link, and the press coverage does not fully highlight the important point that Oregon was prioritizing vaccinations for prison workers but not for people confined to prison.  Here are a few paragraphs from the start of the opinion:

Defendants are aware of the higher risk of COVID-19 exposure and infection to individuals living and working in congregate living facilities, and do not dispute that vaccination is an essential component of protecting against COVID-19 exposure.  For these reasons, defendants Governor Brown and Oregon Health Authority (“OHA”) Director Patrick Allen (“Allen”) have prioritized in Phase 1A of Oregon’s COVID-19 Vaccination Plan the vaccination of those living and working in congregate care facilities and those working in correctional settings.  Yet, Governor Brown and Allen have excluded from Phase 1A individuals living in correctional settings.

The Court acknowledges the difficult and unenviable task faced by defendants Allen and Governor Brown: they must determine the order in which Oregon citizens will receive a lifesaving vaccine that is limited in supply during a global pandemic.  The question of which groups of Oregonians should receive priority is best left to the policymakers, and is not the question before this Court.  The narrow question before the Court is whether prioritizing those living and working in congregate care facilities and those working in correctional settings to receive the vaccine, but denying the same priority for those living in correctional settings, demonstrates deliberate indifference to the health and safety of those relying on the state’s care.

Our constitutional rights are not suspended during a crisis.  On the contrary, during difficult times we must remain the most vigilant to protect the constitutional rights of the powerless.  Even when faced with limited resources, the state must fulfill its duty of protecting those in its custody.  See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“It is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself.”) (quotation marks and citation omitted).  For the reasons that follow, the Court finds that the law and facts clearly favor Plaintiffs’ position, and therefore grants Plaintiffs’ request for preliminary injunctive relief.

February 3, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

Disconcerting new data on pandemic parole practices from the Prison Policy Initiative

The Prison Policy Initiative has this new briefing authored by Tiana Herring that provides some notable data on parole realities in 2022. Authored by Tiana Herring, the full title of the piece highlights its themes: "Parole boards approved fewer releases in 2020 than in 2019, despite the raging pandemic: Instead of releasing more people to the safety of their homes, parole boards in many states held fewer hearings and granted fewer approvals during the ongoing, deadly pandemic."  Here is much of the exposition (click through to see data):

Prisons have had 10 months to take measures to reduce their populations and save lives amidst the ongoing pandemic.  Yet our comparison of 13 states’ parole grant rates from 2019 and 2020 reveals that many have failed to utilize parole as a mechanism for releasing more people to the safety of their homes.  In over half of the states we studied —Alabama, Iowa, Michigan, Montana, New York, Oklahoma, Pennsylvania, and South Carolina — between 2019 and 2020, there was either no change or a decrease in parole grant rates (that is, the percentage of parole hearings that resulted in approvals).

Granting parole to more people should be an obvious decarceration tool for correctional systems, during both the pandemic and more ordinary times.  Since parole is a preexisting system, it can be used to reduce prison populations without requiring any new laws, executive orders, or commutations.  And since anyone going before the parole board has already completed their court-ordered minimum sentences, it would make sense for boards to operate with a presumption of release.  But only 34 states even offer discretionary parole, and those that do are generally not set up to help people earn release.  Parole boards often choose to deny the majority of those who appear before them.

We also found that, with the exception of Oklahoma and Iowa, parole boards held fewer hearings in 2020 than in 2019, meaning fewer people had opportunities to be granted parole.  This may be in part due to boards being slow or unwilling to adapt to using technology during the pandemic, and instead postponing hearings for months.  Due to the combined factors of fewer hearings and failures to increase grant rates, only four of the 13 states — Hawaii, Iowa, New Jersey, and South Dakota — actually approved more people for parole in 2020 than in 2019.

February 3, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, February 01, 2021

CCJ's National Commission on COVID-19 and Criminal Justice releases latest "Impact Report: COVID-19 and Crime"

noted here some months ago that the Council on Criminal Justice (CCJ) had launched an important, timely and impressive new commission titled the "National Commission on COVID-19 and Criminal Justice" and headed by two former US Attorneys General.  That commission has already helped produce a number of important works (examples here and here and here), and I see that it released yesterday this new report formally titled "Pandemic, Social Unrest, and Crime in U.S. Cities: 2020 Year-End Update."  This webpage, titled "Impact Report: COVID-19 and Crime," provides this overview:

This report examines changes in crime rates in 34 American cities during calendar year 2020, with a special emphasis on homicide and other violent crimes.  The current study updates previous studies by the authors with additional data through December 2020.  The study was conducted by criminologist and Professor Emeritus Richard Rosenfeld and Ernesto Lopez of the University of Missouri–St. Louis and Thomas Abt, Commission Director and Council on Criminal Justice Senior Fellow.

Methodology

This study examines monthly crime rates for ten violent, property, and drug offenses in  34 U.S. cities. Not all cities reported monthly data for each crime.  The largest city in the sample is New York, with 8.42 million residents.  The smallest is Norfolk, Virginia, with 245,000 residents.  The crime data were obtained from the online portals of city police departments. The data are subject to revision, and offense classifications varied somewhat across the cities.

Findings

  • Homicides rose sharply in 2020, and rates of aggravated assaults and gun assaults increased as well.  Homicide rates were 30% higher than in 2019, an historic increase representing 1,268 more deaths in the sample of 34 cities than the year before.
  • The magnitude of this increase is deeply troubling, but absolute rates of homicide remain well below historical highs.  In 2020, the homicide rate was 11.4 deaths per 100,000 residents in sample cities; 25 years earlier, in 1995, the rate was 19.4 per 100,000 residents.
  • Aggravated assault and gun assault rates in 2020 were 6% and 8% higher, respectively, than in 2019.  Robbery rates declined by 9%.
  • Domestic violence increased significantly during the early months of the pandemic, but these results should be viewed with caution as year-end rates were comparable to year-end rates in 2019, and findings were based on data from just 12 cities.
  • Property and drug crime rates, with the exception of motor vehicle theft, fell significantly in 2020.  Residential burglary decreased by 24%, nonresidential burglary by 7%, larceny by 16%, and drug offenses by 30%.  Motor vehicle theft rose by 13%.
  • Homicides increased in nearly all of the 34 cities in the sample.  In the authors’ view, urgent action is necessary to address these rapidly rising rates.  Subduing the pandemic, increasing confidence in the police and the justice system, and implementing proven anti-violence strategies will be necessary to achieve a durable peace in the nation’s cities.

Fox News has this lengthy discussion of this report under the full headline "America's murder rate increase in 2020 has 'no modern precedent,' crime analyst group finds: New report analyzes crime rates amid coronavirus pandemic, civil unrest across U.S."  Notably, Salon has a different take on the data in this new piece fully headlined "Did 'defund the police' lead to an increase in murder? Almost certainly not: In fact, hardly any cities have 'defunded' cops—the troubling spike in homicide is probably pandemic-related."

As regular readers know, crime trends are challenging to understand and predict even during calm times, and 2020 was surely the antithesis of calm times.  I am inclined to guess that the multi-factors chaos of 2020 contributed in multiple ways to the big increase in violent crimes and the continued decrease in most property crimes.  (I would hypothesize that drug crimes actually increased in 2020, but detection and arrests decreased.)  I would also guess that we will see some regression to the mean in 2021 no matter what happens with the pandemic and policy efforts.

That all said, I continue to wonder how a nation that has now become somewhat acclimated to thousands of COVID deaths every day will react to reports of a few dozen more homicide deaths each week in 2020.  It might be especially interesting to see surveys of community perspectives on the perceived threats of, and possible responses to, COVID and violent crime in a wide array of American neighborhoods.  Stay safe everyone during these remarkable times.

UPDATE:  Paul Cassell has a detailed examination of the new CCJ report under a full headline that highlights its main themes: "Explaining the Great 2020 Homicide Spike: While a new report released today by the Council on Criminal Justice downplays the role anti-police protests played in last year's unprecedented homicide spike, a decline in pro-active policing following the protests remains the most likely cause."

February 1, 2021 in Impact of the coronavirus on criminal justice, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Thursday, January 28, 2021

ACLU urging Prez Biden to "use his clemency powers to bring home 25,000 people" from federal prisons

In this post yesterday reviewing commentary on former Prez Trump's use of the clemency power, I mentioned that on this front I am always more eager to look forward than look back.  Consequently, I am pleased to see that via this press release that the ACLU is looking forward and pressing the new President to use his clemency powers boldly.  Here are excerpts:

On Tuesday, the Biden administration announced a slate of executive orders on racial justice. Notably missing was any executive action to boldly use his power of clemency. Today, the American Civil Liberties Union launched a six-figure advertising buy asking President Biden to honor his commitment to significant decarceration by immediately using his clemency authority to help tens of thousands of people in federal prison who could be safely released immediately.

poll released by the ACLU last year found widespread support for executive officials to use their clemency authority to correct past injustices.... “The American public, voters, and most importantly, incarcerated people and their families were encouraged by President Biden’s commitment to reduce our country’s prison population significantly. Now that he is in office, the president has the opportunity to act on this commitment and correct the harms created by decades of racist policies that have led to the unjust and disproportionate incarceration of Black and Brown people by using his executive power to grant clemency to thousands of people,” said Cynthia Roseberry, deputy director of the ACLU’s Justice Division and former project manager for the Obama administration’s 2014 Clemency Initiative. “Clemency provides an opportunity for the Biden administration to show mercy to those who are incarcerated, repair injustices, and mend communities most impacted by mass incarceration. The new administration must commit itself to the routine and bold use of clemency.”

Specifically, the ACLU is asking President Biden use his clemency powers to bring home 25,000 people in some of our most vulnerable populations including individuals who are currently incarcerated under statutes that have since changed, older people and medically vulnerable people, particularly people at risk of COVID-19 infections, and people incarcerated for drug offenses. Collectively, these categories add up to tens of thousands of people currently incarcerated in the federal prison system.

I am quite pleased that the ACLU is making a big, big ask in this way, but I think it critical for everyone to also be pushing Prez Biden to just get his clemency pen flowing ASAP in even modest ways.  Though it would be amazing to see thousands of commutations in short order, Prez Biden could send a powerful signal by simply making a regular habit of commuting, say, a few dozen sentences every week while also encouraging all the nation's governors to do the same. 

If Prez Bden would just grant 10 clemencies each week (with perhaps five pardons and five commutations), he would set a record-setting pace for the use of the historic clemency power.  According to the latest BOP data, there are over 10,000 federal prisoners aged 60 or older and over 66,000 in for drug offenses; surely five can be found among this group each week who could safely be released from confinement.  There are hundreds of thousand of Americans still bearing the burdens of a long-ago federal conviction, surely five can be found among this group each week who deserve a pardon.

Interestingly, though not properly attributed to anything done by the Biden Administration, the federal prison in the last week has increased by over 400 persons.  Last week, BOP reported the federal prison population at 151,646; today, BOP reports that it stands at 152,071.  This reality provide an important reminder that, absent proactive and sustained effort to decarcerate, the federal punishment bureaucracy may often be lkely to drive up prison populations.

January 28, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, January 24, 2021

Why not a clemency push focused on the (more lethal) new death penalty that is COVID in federal prisons?

I noted in this recent post that group of Democratic members of Congress signed a letter calling upon Prez Biden to "commute the sentences of all those" on federal death row.  I wondered in my post if there might be a less politically controversial group of federal prisonsers who might be a better focal point for the very first clemencies from Prez Biden.  And this new BuzzFeed News piece, which carries the subheadline "In crowded cells, where COVID is running rampant, appeals for clemency for thousands of prisoners have gone unanswered or flat-out rejected," reminded me that Prez Biden might actually save many more lives right away if he were to focus on communiting federal prison sentences for the most vulnerable persons at risk of suffering "the new death penalty" that takes the form of COVID-19.  Here is some contexnt from the BuzzFeed piece: 

For many federal inmates who aren’t politically connected to the president, or state inmates with no sway with their governor, a pardon isn’t just about getting out of prison or having their sentence overturned, it’s literally a case of life and death.  In crowded prisons, with little access to healthcare or the ability to socially distance, COVID-19 cases have exploded, with at least 1 in 5 inmates infected.

A new report from the Prison Policy Initiative found that crowded jails and prisons led to more than half a million additional COVID-19 cases nationwide — or about 1 in 8 of all new cases — over the summer, including cases both inside and outside correctional facilities because the virus spreads via prison workers to the world beyond bars. At least 2,144 inmates and 146 corrections staff have died from the disease, according to data collected by the Marshall Project....

Wanda Bertram, a spokesperson for the nonpartisan Prison Policy Institute, pointed out that people in prison are infected with COVID-19 at a rate four times higher than that of the general population and twice as likely to die from the disease. “What that means is that people who were never sentenced to death are being killed by COVID-19,” Bertram said. “More people have been killed by COVID-19 in prisons than have been killed by the death penalty in like the last few decades, all over the country.”

Bertram pointed to a report published last month showing places with prisons record higher levels of community infection. “This is a tragedy,” she said. “It’s something that governors and the federal government should have been dealing with a long time ago by doing whatever it is that they had to do to get huge numbers of people out.”

The federal Bureau of Prison's COVID-19 page currently reports that there "have been 204 federal inmate deaths ... attributed to COVID-19 disease."  That amounts to more than four times the number of persons on federal death row; in a few older posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes, and thus crimes much less serious than the aggarvated murders that lead to formal death sentences.   

The Buzzfeed piece rightly notes that "Public officials have been slow to use clemency powers, despite calls from the American Medical Association and other groups to reduce the prison population."  I sure wish a bunch of members of Congress and lots and lots of other folks would focus a push for clemency on the persistent and pressing need to try to depopulate federal prisons in order to reduce the spread and carnage of COVID in federal prisons.

A few of many prior related posts:

January 24, 2021 in Clemency and Pardons, Death Penalty Reforms, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Friday, January 22, 2021

"Can We Wait 60 Years to Cut the Prison Population in Half?"

The question in the title of this post is the title of this new publication authored by The Sentencing Project's Senior Research Analyst Nazgol Ghandnoosh.  Here is how it gets started:

The U.S. prison population declined 11% in 10 years after reaching an all-time high in 2009.  This modest reduction follows a nearly 700% increase in the prison population between 1972 and 2009.  As of year end 2019, 1.4 million people were in U.S. prisons; an imprisonment rate unmatched worldwide.  At the recent pace of decarceration, it will take nearly six decades to cut the U.S. prison population in half.

This analysis is based on the most recent data from the Bureau of Justice Statistics on people serving sentences greater than one year.  Since the coronavirus pandemic began in 2020, a number of states and the federal system have made additional, albeit limited, reductions in their prison populations.  This analysis underscores the need to reduce unnecessarily high levels of imprisonment amidst a public health crisis and going forward.  Meaningful decarceration, as explained below, requires reducing excessive prison terms for violent convictions.

January 22, 2021 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, January 21, 2021

Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency"

In this post from this past October, I wondered "Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends?".  That post was prompted by this Walter Palvo piece at Forbes reporting on a US Attorney suggesting that persons who BOP placed on home confinement in response to COVID would be returned to prison after the pandemic ended for any remaining time.  Though the end of the pandemic still seems depressingly far away, the outgoing Trump Justice Department addressed this issue last week when the Office of Legal Counsel put out this opinion titled ""Home Confinement of Federal Prisoners After the COVID-19 Emergency."  Here is how it gets started:

The Federal Bureau of Prisons (“BOP” or “the Bureau”) has statutory authority to place a prisoner serving a term in a federal prison in home confinement for the concluding portion of his sentence. See 18 U.S.C. § 3624(c)(2).  In connection with the COVID-19 pandemic, Congress expanded the authority of the Director of BOP to place federal prisoners in home confinement earlier than that statutory period.  See Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281, 516 (2020) (“CARES Act”).  The question is what happens to these prisoners once the pandemic emergency ends.  At that time, some inmates will have completed their sentences or be sufficiently close to the end to be eligible for home confinement.  Other inmates, however, may have a substantial time to go before becoming eligible.  Although the pandemic emergency remains ongoing, the issue arises because BOP must plan for an eventuality where it might need to return a significant number of prisoners to correctional facilities.

We conclude that the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning.  See id.  Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2).  We also conclude that the general imprisonment authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES Act authority to authorize home confinement under the Act beyond the limits of section 3624(c)(2).

I had assumed that BOP might have some discretion to keep persons on home confinement whenever we emerged from the pandemic; but this OLC opinion asserts that BOP has no discretion in this matter and thus "would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement."  This opinion is certain contestable, the new Biden Justice Department could reconsider it and a court might reject it, and we are surely a long ways from reaching a post-pandemic world.  Nevertheless, as FAMM's Kevin Ring explains in this Twitter thread, this OLC opinion could cause lots of heartache and worry for lots of persons on home confinement and their families.

Persons on home confinement are those that BOP generally determined posed little risk to public safety and that were at high risk of COVID and so likely older and less healthy relative to most other prisoners.  And, since the BOP has had discretion to return these persons to prison for misbehavior while in home confinement, it is hard to see a compelling public safety justification for sending all these individuals back to prison post-pandemic.  But if extant law is interpreted to require BOP to recall all these folks, policy arguments alone cannot fix this legal reality.

But even if this particular interpretation of BOP authority under the CARES Act were to persist, there are multiple means to address these matters.  Most obviously, Congress could modify the applicable statutes to clearly give BOP discretion to keep persons on home confinement.  And even without congressional action to address this problem, the other two branches could step in: Prez Biden could grant a kind of conditional clemency and/or district courts could grant compassionate release to keep these folks on home confinement.  Walto Palvo discusses these matters further in this new Forbes piece, which concludes with this fitting sentence: "One thing is for sure, the pandemic is not over but discussions on how to handle inmates currently on home confinement is something that should begin now."

January 21, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?

Regular readers know that I have been following federal prison population data quite closely during the COVID era and giving particular attention to the numbers the federal Bureau of Prisons updates weekly at this webpage.  This morning, which just happens to be the first full day of the new Biden Administration, BOP reports "Total Federal Inmates" at 151,646.  I am very curious to hear predictions as to what this number might be a year from now, or two years from now, or four years from now.

Here is some notable recent historical perspective.  Thanks to the wayback machine, we can see here that during Prez Trump's first week in office in late January 2017, BOP was reporting 189,212 total federal inmates.  Because I cannot find parallel data going back to the Obama inaugural months, I can just link to BOP historical data showing the federal prison population was reported at 201,668 at the end of 2008 and was at 218,687 at the end of 2012.  So, roughly speaking, the federal prison population increased by 17,000 persons during Prez Obama's first term (roughly 8%), and then it declined nearly 20,000 persons during Prez Obama's second term (roughly 9%).  And then the federal prison population decreased by nearly 38,000 persons(!) during Prez Trump's term (nearly 20%).

Gosh knows I would not have predicted that the federal prison population would have increased so significantly during Prez Obama's first term, and I also would not have predicted that this prison population would have decreased so much more significantly during Prez Trump's time in office.  Of course, the unpredictable COVID pandemic is a big part of this Trump era story, but BOP data shows that the federal prison population was declining at a pretty steady clip even in the pre-COVID years of the Trump era despite the fact Trump's Justice Department back in 2017, as noted here, was forecasting prison population increases. 

In short, hindsight shows that the direction of the federal prison population is quite hard to predict.  So, all the more reason for me to want to hear any and all new predictions now.  I am tempted to predict the federal prison population will be relatively steady during the Biden years, at least initially.  Though I would like to see Biden's Justice Department do a lot more to get a lot more vulnerable inmates out of federal prisons, I suspect it may be many months before we see any big DOJ policy changes and likely many more months before any big policy changes start to impact the federal prison population.  (I would love to see the Biden Administration have the gut to set a target of a federal prison population under 100,000, but I will save discussion of that idea for a future post.)

So, dear readers, any federal prison population predictions for the Biden era?

January 21, 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)

Sunday, January 17, 2021

"Mass Incarceration, Meet COVID-19"

The title of this post is the title of this paper now available via SSRN authored by Sharon Dolovich. Here is its abstract:

With the global pandemic still unfolding, we are only beginning to make sense of the overall impact of COVID-19 on the people who live and work inside American prisons and jails, and of what effect, if any, the pandemic will have on the nation’s continued commitment to mass incarceration under unduly harsh conditions.  In this Essay, I take stock of where things now stand.  I also consider how we got to this point, and how penal policy would need to change if we are to prevent another round of needless suffering and death when the next pandemic hits.

Part I explains why the incarcerated face an elevated risk of infection and potentially fatal complications from COVID-19. Part II describes the measures various corrections administrators took at the start of the pandemic to try to limit viral spread inside jails and prisons, and why, however well-intentioned, these measures were insufficient to bring the virus under control.  Part III addresses the steps taken by public officials at all levels to reduce the number of people in custody and offers initial thoughts as to why, after a concerted push for releases on the part of many public actors in the first months of the pandemic, these efforts had already considerably slowed by the latter part of May 2020. (Here, the focus is primarily, though not exclusively, on the federal courts’ nonresponse to urgent petitions from incarcerated plaintiffs.)

Part IV draws on the work of the UCLA Law COVID-19 Behind Bars Data Project.  It explores what the data shows regarding infection rates and COVID deaths in custody, describes the limits of the available data, and explains why the impact on people in jails and prisons is likely even greater than the official numbers suggest.  Part V zeroes in on the culture of secrecy that American corrections administrators have long been empowered to cultivate regarding what goes on behind bars.  It argues that this culture has exacerbated the threat COVID poses to the incarcerated as well as to staff, that such secrecy is at odds with the imperatives of a public institution, and that we need to replace the reigning default posture of concealment with an ethos of transparency.  This Essay concludes with a call for a broad normative reorientation toward assessing carceral policy through a public health lens.

January 17, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, January 15, 2021

"Top Trends in State Criminal Justice Reform, 2020"

The title of this post is the title of this short paper from Nicole Porter at The Sentencing Project. Here is how it gets started and its concluding paragraph:

The United States is the world leader in incarceration and keeps nearly 7 million persons under correctional control.  More than 2 million are in prison or jail, and 4.6 million are under community surveillance on probation or parole.  At least 19 million persons are living with a felony conviction while an estimated 100 million have a criminal record.  The persistence of extremely punitive sentencing laws and policies, not increases in crime rates, sustain the nation’s high rate of incarceration.  Ending mass incarceration requires a transformative change to sentencing policies and practices aligned with the scaling back of collateral consequences of conviction, and challenging racial disparities in the criminal justice system.  In recent years most states have enacted reforms designed to reduce the scale of incarceration and the impact of the collateral consequences.  This briefing paper highlights key reforms undertaken in 2020 prioritized by The Sentencing Project....

Lawmakers advanced policy reforms to address mass incarceration and scale back collateral consequences.  Too few policy changes were adopted to address COVID-19 and its impact on the incarcerated in overcrowded congregate lock ups.  While reforms help improve criminal justice policy, most measures will have a modest impact on the scale of incarceration.  It will take substantial changes to significantly reduce the nation’s rate of incarceration.  Given the limited impact of incarceration on crime, there continues to be potential for substantial reductions in state prison populations.  Lawmakers and advocates must explore key changes that limit the use of incarceration by retroactively ending mandatory minimum sentencing, adopting universal sentencing review policies, challenging racial disparities through structural reforms, and addressing collateral consequences.

January 15, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, January 14, 2021

"Incarcerated Activism During COVID-19"

The title of this post is the title of this new essay authored by Eve Hanan now available via SSRN. Here is its abstract:

Incarcerated people have a notoriously difficult time advocating for themselves.  Like other authoritarian institutions, prisons severely curtail and often punish speech, organizing, and self-advocacy.  Also like other authoritarian institutions, prison administrators are inclined to suppress protest rather than respond to the grounds for protest.  Yet, despite impediments to their participation, incarcerated people have organized during the pandemic, advocating for themselves through media channels, public forums, and the courts.  Indeed, a dramatic increase in prisoner activism correlates with the onset of the COVID-19 pandemic.

Just as the COVID-19 pandemic highlights injustice in other areas of criminal legal practice, it reveals both the dangers of silencing prisoner speech and the potential for prisoner self-advocacy.  This Essay first discusses silencing and speech in carceral spaces during the pandemic using a theory of political philosophy called epistemic injustice.  The theory of epistemic injustice addresses how disfavored social groups are excluded from sharing knowledge in public conversations. The stifling of prisoner speech occurs in part because incarcerated people are deliberately separated from the outside world.  But it also reflects their status as a stigmatized — and thus discredited — group.  Even when their speech is heard, it is discounted as manipulative and untrustworthy.

Second, this Essay argues that the self-advocacy efforts made by incarcerated people during the pandemic demonstrates the democratic value of their participation.  Among the necessary predicates to meaningful change in criminal legal practices is the democratic participation of the targets of those practices, including suspects, criminal defendants, and prisoners.  Their participation in the political sphere serves a vital democratic function the absence of which is felt not only in the authoritarian structure of prisons, but in the society-wide failure to enact widespread change to criminal legal practices.

January 14, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, January 13, 2021

"More states need to use their 'good time' systems to get people out of prison during COVID-19"

The title of this post is the title of this new briefing from the Prison Policy Initiative. The subtitle highlights its themes: "Most states have statutes that allow incarcerated people to earn time off of their sentences. Why aren’t more states using this tool to safely reduce prison populations during COVID-19?".  Here is an excerpt (with links from the original):

With the COVID-19 infection rate in prisons four times that of the general U.S. population, public health and medical experts are urging prisons to reduce their populations to save lives.  But governors and corrections officials are still passing the buck — almost a year into the pandemic. Overlooking existing mechanisms that could be used to release people, states have instead imposed a number of policy changes that have caused further harm to the incarcerated people they are supposed to protect....

What states need now is a simple, equitable way of getting lots of people out of prison safely, rather than continuing to incarcerate them in ever more dangerous and cruel conditions.  A solution — albeit one that will require legislative action in most states — is for states to immediately change their “good time” policies.

Good time” — also called “earned time,” “meritorious credit,” or similar — is a system by which people in prison can earn time off their sentences.  States award time “credits” to incarcerated individuals to shorten the time they must serve before becoming parole-eligible or completing their sentences altogether.  Good time systems vary between states (see the National Conference of State Legislatures’ detailed table) but time credits are often given out for participating in programs.  For example, New York offers a six-month credit for completion of the GED.  26 states have a good time program that offers credits for certain educational programs and attainments, while 23 states offer credits for vocational training, 17 for participation in mental health or substance abuse treatment, 16 for work, 21 for other programming, and five for participating in disaster response (like firefighting).  Almost none of these kinds of programs are being offered consistently during the pandemic, effectively eliminating the option for incarcerated individuals to reduce their sentences while in prison during COVID-19.

People in prison can also often earn time off their sentences by complying with prison rules.  During the pandemic, people in prison have had to comply with much stricter rules than usual, including lockdowns that subject entire prisons to conditions “akin to solitary confinement.”  Yet most have not been rewarded with additional “good time” for compliance with these harsher conditions.

Rather than holding people back from accruing good time credits during the pandemic, states should give out more of those credits, not just because it’s the fair thing to do but because it will allow some people to leave prison immediately.

January 13, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Friday, January 08, 2021

The new death penalty: Marshall Project reporting COVID has now killed more than 2000 prisoners in the United States

I am always sad to report when we pass yet another remarkable milestone in COVID prisoner deaths, but passing a new big ugly number prompts another one of my series of "new death penalty" posts.  The Marshall Project, which continues the critical job of counting via this webpage prisoner deaths from coronavirus, reports as of Thursday, January 8, 2021 that there are now "at least 2010 deaths from coronavirus reported among prisoners." 

Notably, just a month ago as noted in this post, the COVID prisoner death accounting was "only" at 1568 deaths.  So we have seen a huge uptick in prisoner deaths in just the last month (which is somewhat unsurprising because the same uptick has been seen in the general population).   Sadly, we are also seeing a big increase in correctional staff dying from COVID.  The Marshall Project now reports "at least 139 deaths from coronavirus reported among prison staff," when that number was "only" at 105 deaths as of last month. 

I highlighted here a few weeks ago some of the sound arguments being made that incarcerated persons should be high on the list of who first receives the COVID vaccines.  These latest data should further advance that notion.

A few of many prior related posts:

January 8, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Tuesday, January 05, 2021

US Sentencing Commission releases more 2020 sentencing data revealing COVID's impact on federal sentencings

Regular readers know I have been keenly eager to see any US Sentencing Commission data providing a window into the COVID state of federal sentencing.  Back in October, as blogged here, the USSC released here its "3rd Quarter ... Preliminary Fiscal Year 2020 Data Through June 30, 2020."  And I just saw that yesterday, the USCC released here its 4th Quarter ... Preliminary Fiscal Year 2020 Data Through September 30, 2020." 

These new data provide another official accounting of federal sentencing outcomes that make clear that COVID concerns dramatically reduced the number of federal sentences imposed in the third and fourth quarters of Fiscal Year 2020.  Specifically, as reflected in Figure 2, it appears that the previous three quarters averaged roughly 20,000 federal sentencings, whereas the quarter ending in June 2020 saw only around 12,000 federal sentences imposed and the quarter ending in September 2020 had about 13,000 sentencings. 

Digging into these numbers, Figure 2 also reveals that the mix of cases being sentenced changed considerably from quarter 3 to quarter 4 in 2020.  In quarter 3, all major categories of cases declined considerably in total number sentenced.  But in quarter 4, immigration cases kept declining while drug, firearm, and economic cases bounced back somewhat closer to "pre-COVID normal."  (Of course, quarter 4 ended in September 2020 before the big second wave of COVID cases; it will be interesting to see what case processing data looks like in in quarters 1 and 2 of Fiscal Year 2021.) 

Critically, the change in the caseload would seem to help explain a dramatic uptick in average sentence imposed during the last quarter of FY 2020.  As detailed in Figure 5, average sentences pre-COVID were pretty stable, clocking in each quarter for many years between 38 and 43 months.  But in the quarter ending in June 2020, the average federal sentence averaged only roughly 30 months; but in the next quarter ending in September 2020, the average sentence jumped to nearly 48 months.  This leads me speculate that the sentencings that went forward during the early COVID period may have generally been the less serious cases; into the late summer, it would appear, more serious cases moved forward to sentencing despite COVID concerns.  In addition, because immigration cases typically have lower sentences than drug, firearm, and economic cases, the average sentence for all cases is likely to increase when the number of immigration cases in the pool declines so considerably.

In sum, these latest USSC data show that the total number of federal sentences imposed in the first six months of the COVID era (April to September 2020) dropped about 30% below historical normal, but the mix of cases and the length of the sentences imposed in this period varied dramatically between the two quarters of existing USSC data.  Very interesting, and now I am even more eager for the next data run and for even more intricate reporting and analysis from the US Sentencing Commission.

January 5, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Sunday, January 03, 2021

New year round-up highlights more of the same struggles with COVID in incarceration nation

Gosh knows we all wish we could forget about COVID in this new year, and I sure wish the turn of the calendar would lead to a big turn in the stories of how the coronavirus is impacting prisons and the broader criminal justice system.  But, as this round-up of recent headlines and stories highlight, incarceration nation continues to be ravaged by COVID-19 in so many ways:

From the Anchorage Daily News, "Nearly every inmate in Alaska’s largest prison has now had COVID-19, officials say"

From the New York Times, "States Are Shutting Down Prisons as Guards are Crippled By Covid-19"

From Time, "With Over 275,000 Infections and 1,700 Deaths, COVID-19 Has Devastated the U.S. Prison and Jail Population"

From the Washington Post, "Early vaccination in prisons, a public health priority, proves politically charged"

From the Wisconsin State Journal, "‘They played with our lives’: How one Wisconsin prison failed to contain a COVID-19 outbreak"

 

From the AP, "COVID vaccine being administered at same Indiana prison where DOJ carries out executions"

From The Intercept, "How the Pandemic Exposed the Failures of Capital Punishment"

From NBC News, "Ohio inmate who survived execution attempt dies in prison of probable Covid-19"

I have broken out the "death penalty" pieces even as they highlight how the death penalty is necessarily intertwined with broader stories of incarceration.  I find the last of these pieces especially stunning as it reports that Rommel Broom, who survived a botched Ohio execution attempt way back in 2009 and had a pending US Supreme Court appeal seeking to preclude a second Ohio execution effort, could not survive the new death penalty that is COVID-19.

January 3, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Friday, January 01, 2021

Chief Justice's "2020 Year-End Report on the Federal Judiciary" provides pandemic perspectives (and pictures)

The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary, and nobody will be surprised to hear that the 2020 version of this report from Chief Justice John Roberts is focused on how the judiciary has responded, past and present, to pandemics.  The full 2020 year-end report can be found at this link, and it is worth checking out in full (in part for the pictures showing outdoor court activities in 1918 and 2020).  Here are a few passages that capture the report's substantive spirit:

[J]udges who serve on the Judicial Conference of the United States and its committees — in particular, the Committee on Rules of Practice and Procedure — sprang into action to make possible video and audio conferencing in certain criminal proceedings, with help from Congress through authorization in the CARES Act.  By April, judges around the country were guiding critical court functions from their home offices — or their kitchen tables.

Hearings of all sorts went virtual. Judges quickly (or at least eventually) learned to use a wide range of available audio and video conferencing tools....  Courts have used every available avenue to prepare for resumption of jury trials, the bedrock of fairness in our system of justice.  Judges and court staff have reconfigured spaces in courtrooms around the country.  Many courts have repurposed their largest courtrooms for physical distancing and reconfigured jury boxes to extend into public gallery areas....

All this is a credit to judges and court staff, but also to the citizens who serve as jurors. Judges from around the country report that, where jury trials have resumed, responses to jury summonses have met or exceeded their high hopes for the public’s willingness to participate in the legal system during these very challenging times....  None of this would be achievable without unsung heroes in the judicial branch and throughout government.

Because I had the honor of working within the federal judiciary for a couple of years way back when, and especially because I have an inkling for how challenging judicial work can be even under the very best of circumstances, I am keenly appreciative of all the work being done by federal and state courts nationwide.  It is thus nice to see the Chief Justice conclude his substantive remarks by saying that he is "privileged and honored to thank all of the judges, court staff, and other judicial branch personnel throughout the Nation for their outstanding service."  It is also nice to see the report includes an Appendix on the "Workload of the Courts" with these notable federal criminal justice caseload data:

In the regional courts of appeals, filings fell less than one percent from 48,486 to 48,190.... Criminal appeals fell three percent.

Cases with the United States as defendant grew 16 percent, primarily reflecting increases in social security cases and prisoner petitions....

Criminal defendant filings (including those for defendants transferred from other districts) dropped 20 percent to 73,879.  Defendants charged with immigration offenses, who accounted for 32 percent of total filings, were 25 percent fewer, largely in response to a 70 percent reduction in defendants accused of improper entry by an alien.  The southwestern border districts received 84 percent of 23,618 national immigration crime defendant filings.  Drug crime defendants, who accounted for 29 percent of total filings, fell 17 percent.  Defendants prosecuted for firearms and explosives offenses declined 13 percent.  Filings for defendants accused of fraud decreased 27 percent.  Reductions also occurred in filings related to traffic offenses, property offenses, sex offenses, general offenses, regulatory offenses, justice system offenses, and violent offenses.

A total of 126,970 persons were under post-conviction supervision on September 30, 2020, a reduction of two percent from the total one year earlier.  Of that number, 112,849 persons were serving terms of supervised release after leaving correctional institutions, a decrease of less than one percent.  Cases activated in the pretrial services system, including pretrial diversion cases, decreased 26 percent to 80,603.

January 1, 2021 in Data on sentencing, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, December 31, 2020

Federal prison population closes out 2020 at new modern low of 152,184 according to BOP

Screenshot 2020-12-31 at 9.56.12 AMA helpful reader recently reminded me that the last federal prison population headcount from the Bureau of Prisons in 2019 — specifically from December 26, 2019 — reported "175,858 Total Federal Inmates."  That number was itself a pretty notable decarceration achievement for the federal system: just six years earlier, in 2013, the federal prison population clocked in at around 220,000 total inmates according to the BOP.

I am focused on the last federal prison population headcount from last year because the Bureau of Prisons this morning reported at this webpage the "Total Federal Inmates" count at the very end of 2020.  Remarkably, this remarkable year has brought a decline of over 23,500 inmates, as the total now stands at 152,184

The COVID pandemic, of course, accounts in various ways for these 2020 decarceral developments.  It is hard to unpack just how much this year's decline can be attributed to a lot more persons being moved out of federal prisons or a lot fewer people being moved into federal prison.  (As noted in this post, the US Sentencing Commission released some early COVID-era sentencing data showing that the number of federal sentences imposed between April and June 2020 dropped about 40% from the usual rate.)  Interestingly, after the pace of declines in the federal prison population seemed to slow considerably in the late summer and fall, there has now been a 2000-person decline in the BOP population since Thanksgiving.  These data make me a bit more hopeful that we could end up below 150,000 total federal inmates during the first few months of 2021.

A few of many prior related posts:

December 31, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, December 22, 2020

Following the Garden State's path to ending mass incarceration

This new commentary authored by Jeremy Travis and Marc Mauer provides yet another reason to love the Garden State. The piece is headlined "New Jersey shows that we can end mass incarceration," and here are excerpt:

New Jersey is on a path to release more than 3,000 people from prison as part of Gov. Phil Murphy’s attempts to fight the spread of the COVID-19 virus in the criminal justice system.  While the pandemic has kept far too many of us feeling trapped at home, Murphy is responding to this crisis in a way that prioritizes freedom for thousands of Americans.  In fact, since the beginning of the outbreak, New Jersey’s prison population has shrunk by 35%.

But it shouldn’t take a deadly virus to know that too many Americans remain stuck in prisons, serving sentences that are unnecessarily long and being denied basic human dignities like privacy and safety....

Rather than asking taxpayers to maintain this massive prison system, our nation should be demanding a different investment strategy.  Prison budgets should be cut and the savings directed to support crime prevention strategies of proven effectiveness, including substance abuse treatment programs, early intervention with families at risk, and community-based anti-violence initiatives.  Savings should also be reinvested in Black and brown communities that have borne the brunt of this failed policy.  Achieving this goal will move society toward repairing decades of harm while also advancing a stronger and healthier nation....

The United States has become the world leader in incarceration not simply because we send more people to prison.  We also keep them behind bars far longer than other nations. One in every seven people in prison today — an estimated 206,000 — is serving some form of a life sentence.  People are staying behind bars well into old age, leading modern-day prisons to resemble a network of high-security nursing homes.

These excessive sentences are counterproductive in reducing crime because individuals “age out” of their high crime years.  Long prison terms frequently extend well past the point of diminishing returns for public safety.  Other democracies have recognized this statistical truth and rarely imprison individuals for more than 20 years.

New Jersey is already starting to make these changes.  Following the recommendations of a bipartisan Criminal Sentencing and Disposition Commission, the state is tackling critical reforms that may shrink the prison population and close the racial gap in incarceration rates.  So far, the Legislature has debated policies like ending mandatory minimum sentences for many nonviolent crimes, expanding compassionate release, and resentencing people assigned multi-decade punishments when they were teenagers.

Under the leadership of Gov. Murphy, New Jersey is becoming a model for how states can use thoughtful, systemic, and data-driven policies to chart the end of mass incarceration and eliminate racial disparities.... In response to the onslaught of the COVID-19 pandemic, tens of thousands of people have been released from U.S. prisons.  It took the United States 40 years to quadruple its incarceration rate. With brave leadership and sustained community advocacy, we can end the reality of mass incarceration and its underlying systemic racism within a generation.  Our national promise of freedom demands no less.

December 22, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Sunday, December 20, 2020

Is there any chance COVID might halt the three pending federal executions slated for next month?

The question in the title of this post is prompted by this AP piece headlined "Lawyers: 2nd US inmate scheduled to be executed has COVID-19."  Here are the details:

A second federal inmate scheduled to be put to death next month in a series of executions by the Trump administration has tested positive for COVID-19, his lawyers said Friday. The diagnosis of Cory Johnson, who was convicted of killing seven people related to his drug trafficking in Virginia, comes a day after attorneys for Dustin John Higgs confirmed he tested positive at a U.S. prison in Terre Haute, Indiana, where both men are on death row.

Johnson, Higgs and a a third inmate, Lisa Montgomery, are scheduled to be put to death by lethal injection at a death chamber at the federal prison complex in Terre Haute just days before President-elect Joe Biden takes office.

Johnson’s lawyers, Donald Salzman and Ronald Tabak, called on federal authorities to strike their client’s current execution date of Jan. 14.  Higgs is scheduled to die a day later. Montgomery’s execution date is Jan. 12, but because she is the only woman on federal death row she is currently held at a separate prison for female inmates in Texas but would need to be brought to Indiana to be executed.

Johnson’s attorneys said his infection would make it difficult to interact with him in the critical days leading up to his scheduled execution, adding that “the widespread outbreak on the federal death row only confirms the reckless disregard for the lives and safety of staff, prisoners, and attorneys alike.” “If the government will not withdraw the execution date, we will ask the courts to intervene,” they said.

The Justice Department and Bureau of Prisons did not immediately respond to requests for comment.

Prosecutors alleged that Johnson was one of three crack cocaine dealers who carried out a string of murders and that he killed seven people in 1992 in an attempt to expand the territory of a Richmond, Virginia, gang and silence informants. His legal team has argued that he is intellectually disabled, with a far-below average IQ, and therefore ineligible for the death penalty.

Higgs was convicted of ordering the 1996 murders of three women in Maryland. Montgomery was convicted of using a rope to strangle a pregnant woman in 2004 and then using a kitchen knife to cut the baby girl from the womb, authorities said. She would be the first woman executed federally in more than half a century....

The Bureau of Prisons confirmed in a statement to The Associated Press on Thursday that inmates held on federal death row — known as the Special Confinement Unit — have tested positive for COVID-19.  As of Thursday, there were more than 300 inmates with confirmed cases of COVID-19 at FCC Terre Haute.  The Bureau of Prisons said “many of these inmates are asymptomatic or exhibiting mild symptoms.”

Assuming that Higgs and Johnson are asymptomatic or exhibit only mild symptoms in the coming weeks, I greatly doubt that their diagnosis will lead the Trump Administration or courts to decide to postpone their scheduled executions. (In this post a few weeks ago, I wondered if the coming departure of AG Barr might impact somehow federal execution plans.  But, after two more federal executions went forward earlier this month, I somewhat doubt that the incoming Acting AG will be eager to change course absent clear direction from Pez Trump.)

Ironically, if Higgs and/or Johnson were to get seriously ill from COVID and need to be hospitalize for an extended period, such a turn of events might extend their lives.  Despite pending execution dates, it would be unconstitutional for federal prison officials to knowingly refuse to provide needed medical care for Higgs or Johnson.  And if needed medical care kept Higgs and/or Johnson in a hospital facility at the time of their execution dates, I do not think prison officials would be logistically able to carry out the planned executions.  And yet, adding another layer of irony, even if Higgs and/or Johnson were to get very ill and need hospitalization, federal authorities could and likely would work extra hard to nurse them back to health just in time for other federal authorities to move forward their scheduled executions.

December 20, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Saturday, December 19, 2020

"1 in 5 Prisoners in the U.S. Has Had COVID-19"

The title of this post is the headline of this Marshall Proeject accounting of the ugly state of the pandemic in incarceration nation. Here are some excerpts:

One in every five state and federal prisoners in the United States has tested positive for the coronavirus, a rate more than four times as high as the general population. In some states, more than half of prisoners have been infected, according to data collected by The Marshall Project and The Associated Press.

As the pandemic enters its tenth month — and as the first Americans begin to receive a long-awaited COVID-19 vaccine — at least 275,000 prisoners have been infected, more than 1,700 have died and the spread of the virus behind bars shows no sign of slowing. New cases in prisons this week reached their highest level since testing began in the spring, far outstripping previous peaks in April and August....

Nearly every prison system in the country has seen infection rates significantly higher than the communities around them. In facilities run by the federal Bureau of Prisons, one of every five prisoners has had coronavirus. Twenty-four state prison systems have had even higher rates.

Not all states release how many prisoners they've tested, but states that test prisoners broadly and regularly may appear to have higher case rates than states that don't. Infection rates as of Tuesday were calculated by The Marshall Project and the AP, based on data collected weekly in prisons since March. Infection and mortality rates may be even higher, because nearly every prison system has significantly fewer prisoners today than when the pandemic began, so rates represent a conservative estimate based on the largest known population.

And here are just a few of many recent headlines reporting on some of the ugly particulars in various prison facilities and systems:

From Cincinnati Enquirer, "Coronavirus in Ohio: COVID-19 cases surging among state inmates, prison employees

From FOX10 Pheonix, "Yuma prison warden dies from COVID-19; facility fighting virus outbreak"

From NBC News, "'Like a war zone': Prison that freed Paul Manafort early now ravaged by Covid: Nearly 75 percent of the 856 prisoners at FCI Loretto in Pennsylvania tested positive for Covid-19 in the last month."

From WXYZ, "MDOC hits bleak milestone: Over 100 Michigan prisoners have died from COVID-19"

Sadly, I could links to dozens of stories about COVID outbreaks in prisons all around the country.  Especially given research (some noted here) detailing how COVID caseload grews in the broader community in regions with prisons and fails, I sure hope everyone sees the public health wisdom of prioritizing incarcerated persons for the vaccines.

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

Wednesday, December 16, 2020

DPIC releases year-end report stating "Death Penalty Hits Historic Lows Despite Federal Execution Spree"

Death-sentences-by-yearThis new press release from the Death Penalty Information Center, titled "Executions and Death Sentences Drop to Historic Lows in 2020, even as Federal Government Ramps Up Executions," provides a three-page summary of the DPIC's 36-page year-end 2020 report on the administration of the death penalty in the United States.  The full reports carries this intricate full title "The Death Penalty in 2020: Year End Report; Death Penalty Hits Historic Lows Despite Federal Execution Spree; Pandemic, Racial Justice Movement Fuel Continuing Death Penalty Decline." Here is how the report's introduction starts:

2020 was abnormal in almost every way, and that was clearly the case when it came to capital punishment in the United States. The interplay of four forces shaped the U.S. death penalty landscape in 2020: the nation’s long-term trend away from capital punishment; the worst global pandemic in more than a century; nationwide protests for racial justice; and the historically aberrant conduct of the federal administration.  At the end of the year, more states had abolished the death penalty or gone ten years without an execution, more counties had elected reform prosecutors who pledged never to seek the death penalty or to use it more sparingly; fewer new death sentences were imposed than in any prior year since the Supreme Court struck down U.S. death penalty laws in 1972; and despite a six-month spree of federal executions without parallel in the 20th or 21st centuries, fewer executions were carried out than in any year in nearly three decades.

The historically low numbers of death sentences and executions were unquestionably affected by court closures and public health concerns related to the coronavirus.  But even before the pandemic struck, the death sentences and executions in the first quarter of the year had put the United States on pace for a sixth consecutive year of 50 or fewer new death sentences and 30 or fewer executions.  The execution numbers also were skewed by a rash of executions that marked the federal government’s death-penalty practices as an outlier, as for the first time in the history of the country, the federal government conducted more civilian executions than all of the states of the union combined.

The erosion of capital punishment at the state and county level continued in 2020, led by Colorado’s abolition of the death penalty.  Two more states — Louisiana and Utah — reached ten years with no executions. With those actions, more than two-thirds of the United States (34 states) have now either abolished capital punishment (22 states) or not carried out an execution in at least ten years (another 12 states). The year’s executions were geographically isolated, with just five states, four of them in the South, performing any executions this year.  The Gallup poll found public support for the death penalty near a half-century low, with opposition at its highest level since the 1960s.  Local voters, particularly in urban centers and college towns, rejected mass incarceration and harsh punishments, electing new anti-death-penalty district attorneys in counties constituting 12% of the current U.S. death-row population.

A majority (59%) of all executions this year were conducted by the federal government, which in less than six months carried out more federal civilian executions than any prior president in the 20th or 21st centuries, Republican or Democratic, had authorized in any prior calendar year.  The Trump administration performed the first lame-duck federal execution in more than a century, while scheduling more transition-period executions than in any prior presidential transition in the history of the United States.  The executions reflected systemic problems in the application of capital punishment and drew widespread opposition from prosecutors, victims’ families, Native American leaders, religious leaders, regulatory law experts, and European Union officials.  In addition to the legal issues, the executions also presented public health problems, likely sparking an outbreak in a federal prison, infecting members of the execution teams, and causing two federal defense attorneys to contract COVID-19.

Death sentences, which were on pace for sustained low levels prior to the pandemic, plunged to a record low of 18.  While the resumption of trials delayed by the pandemic may artificially increase the number of death verdicts over the next year or two, the budget strain caused by the pandemic and the need for courtroom space to conduct backlogged non-capital trials and maintaining a functioning court system may force states to reconsider the value and viability of pursuing expensive capital trials.

As I have done in past posts, I have reprinted here one of DPIC's graphics on number of death sentences imposed because I think that data may prove the most critical and consequential for the fate and future of the death penalty. Helpfully, the DPIC report has lots of other important data about a remarkable year. Ninth months ago in a post, I wondered aloud "Might COVID-19 ultimately bring an end to the death penalty in the United States?."  This DPIC report details that the death penalty is still alive, but it seems COVID has certainly contributed to capital punishment's extended decline.

December 16, 2020 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Tuesday, December 15, 2020

Prison Policy Initiative reports on "Mass Incarceration, COVID-19, and Community Spread"

Gregory Hooks and Wendy Sawyer with the Prison Policy Initiative has authored this important new report titled "Mass Incarceration, COVID-19, and Community Spread." The full report is today's must-read, and here are parts of its introduction and conclusion:

In 2020, a decades-long American policy failure — mass incarceration — collided with a brand new American policy failure: the mismanagement of the COVID-19 pandemic. After decades of needlessly locking up ever more people in jails and prisons, state and federal lawmakers now faced a public health disaster if they were unable to decarcerate quickly. In this report, we show that the persistent overuse of incarceration — despite decades of evidence of its inefficacy and harms — has had serious consequences. Mass incarceration and the failure to reduce prison and jail populations quickly led directly to an increase in COVID-19 cases, not just inside correctional facilities, but in the communities and counties that surround them.

Since the beginning of the pandemic, it was abundantly clear that the crowded and unsanitary conditions in American prisons and jails would facilitate the rapid spread of the virus, putting incarcerated people and staff at serious risk once the novel coronavirus entered facilities. Officials across the country ignored the threat for too long, perhaps imagining that confined populations would be too isolated from the outside world to contract the virus. But the boundaries between life “inside” and surrounding communities are actually quite porous, with staff, vendors, volunteers, and visitors constantly flowing in and out of correctional facilities — not to mention the frequent turnover and transfers of incarcerated people themselves....

This report outlines our initial findings so that they may be immediately useful to policymakers and advocates; the full study, which includes an analysis of nursing homes and ICE facilities, will be published by co-author Gregory Hooks separately. In addition, we have compiled Appendix tables with more detailed state and local data. In brief, however, we find that:

  1. COVID-19 caseloads grew more quickly over the summer of 2020 in nonmetro counties with more people incarcerated.
  2. COVID-19 caseloads grew much more quickly over the summer of 2020 among counties in multicounty economic areas with more people incarcerated.
  3. Mass incarceration added to COVID-19 caseloads in multicounty economic areas and states. Nationally, this impact reached a tragic scale: Mass incarceration added more than a half million cases in just three months....

The number of people in prisons and jails has led to more COVID-19 cases, among those working or confined in these facilities and among those who simply live near them. As documented here, the number of new COVID-19 infections over the summer of 2020 was greater in counties and multicounty areas with larger and more concentrated incarcerated populations. In total, we estimate that mass incarceration led to 560,000 additional COVID-19 cases nationwide in just three months....

What is needed immediately, at the policy level, is an increased use of clemency, parole expansion, and other legal mechanisms to depopulate prisons and stop the virus from spreading behind bars.  But there is a greater need over the long term: a profound rethinking of how we use incarceration in this country.  It has never been more obvious that locking up millions of people in crowded and unsanitary conditions is harmful — not only for those who are locked up, but for people outside prisons as well.  With the pandemic dragging on, our ability to radically reduce our use of incarceration is now a life or death matter.  If lawmakers cannot make swift changes to reduce correctional populations and keep them low, we should expect that more COVID-19 outbreaks — and more deaths — in prisons and the communities that surround them are still to come.

December 15, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, December 14, 2020

"Experience to Action: Reshaping Criminal Justice After COVID-19"

Final-Report-Banner-WebsiteI have noted repeatedly (most recently here) the great work being done by a special commission created by the Council on Criminal Justice (CCJ) titled the "National Commission on COVID-19 and Criminal Justice."  This commission today released this important new report with the title that I used for the title of this post.  Here is part of the report's executive summary:

This report, Experience to Action: Reshaping Criminal Justice After COVID-19, provides criminal justice policymakers and practitioners with a priority agenda to prepare the nation’s criminal justice system for future public health crises.

Through its recommendations, the Commission seeks to better balance the roles and responsibilities of the public health and public safety fields.  Launched at the end of July, the Commission received multiple reports and extensive testimony from leading national and local experts.  Key findings include:

  • Crime: Property crime and drug offense rates fell from 2019 to 2020, but violent crime increased significantly. In particular, homicide rates increased by 42% during the summer months (June to August) in a sample of more than 20 medium to large cities, and by 34% in the fall (September to October).

  • Prisons: Prison populations have been reduced by about 5% nationally. On average, the COVID-19 mortality rate within prisons (61.8 deaths per 100,000 people in prison) was double the mortality rate for the general population, after adjusting for the gender, age, and race/ethnicity of those incarcerated.  There are also substantial differences among states in the rate of prison infections and deaths.

  • Jails: Jail populations fell by 31% in the early weeks of the pandemic but have been slowly climbing toward prior levels since May. During the pandemic, the rates at which people have been rebooked on new charges 30, 60, and 180 days after release remain below pre-pandemic rates. Unfortunately, data regarding COVID-related infections and deaths in jails is scarce.

  • Racial and Ethnic Disparities: The COVID-19 pandemic may have exacerbated some racial and ethnic disparities in the criminal justice system.  As jail populations began to fall in March at the onset of the pandemic, there were increases in the proportion of people who were Black, who were booked on felony charges, who were male, and who were 25 or younger.  These changes in the population composition persisted even as jail populations began to rise again in early May.

  • Substance Use and Mental Health Disorders: More than 40 states have reported increases in opioid-related fatalities since the onset of the pandemic.  Mandatory lockdowns, restrictions on movement, social distancing guidelines, orders limiting access to facilities for nonessential workers, and the absence of in-person treatment have created gaps in the system's ability to identify and monitor the needs and legal requirements of people with substance abuse and mental health disorders, and to intervene when they are in distress.

  • Budgets: State and local governments face daunting budget deficits that will worsen as the pandemic wears on, and unemployment levels remain high.  Because criminal justice operations (law enforcement, courts, and corrections) are funded more heavily by state and local governments than most other government functions, revenue shortfalls will disproportionately damage the criminal justice system without effective policy interventions....

The report’s findings and recommendations identify weaknesses in the nation’s criminal justice response to the pandemic and provide concrete suggestions for how to build a stronger, fairer, and more resilient system.

As detailed here, there is a webinar to discuss this report is scheduled for midday tomorrow.

December 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, December 12, 2020

Highlighting arguments that incarcerated persons should be high on the list for the COVID vaccines

I have been pleased to see recently more than a few commentaries making the case for making sure persons in prisons and jails have access to the coming COVID vaccines.  Here is a round up of some of these recent pieces:

From America: The Jesuit Review, "A Covid-19 vaccine has finally arrived. Prisoners must be prioritized."

From The Appeal, "People in Prisons and Jails Should get COVID-19 Vaccines as Early as Possible"

From the News-Gazette, "Vaccinating inmates — early — would be small step on long path toward justice reform"

From the Orange County Register, "An argument for the early immunization of prisoners"

From USA Today, "Here's why inmates should get vaccinated against COVID-19 before the rest of us"

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

Friday, December 11, 2020

Rounding up some headlines in incarceration nation

An array of press stories about prison issues and conditions, none encouraging, caught my eye this morning. Here is a round up organized by state:

Alabama: "U.S. Department of Justice sues Alabama over unsafe prison conditions"

Arizona: "Advocates concerned over COVID-19 outbreaks, no running water inside Arizona prisons"

California: "Disabled California Prisoners Say Mistreatment Persists Despite Court Orders"

Connecticut: "Judge says Danbury prison is slow to enforce COVID-19 agreement and orders immediate release of 17 inmates"

Hawaii: "90% of Waiawa’s inmate population has tested positive for COVID in recent months"

New York: "‘A lack of compassion’: Lawyers say New York prisons are dragging their feet releasing eligible inmates amid coronavirus concerns"

Pennsylvania: "More than half the inmates at Pennsylvania federal prison have covid"

Washington: "Nearly 50-percent of Airway Heights Corrections Center inmates infected with COVID-19"

December 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Thursday, December 10, 2020

BJS seeking comment on data collection regarding state and federal prison responses to COVID

A helpful reader suggested helpfully that I note this new Federal Register notice from DOJ's Bureau of Justice Statistics which seeks to "encourage comments for 60 days until February 8, 2021, on a new data collection: National Prisoner Statistics program: Coronavirus Pandemic Supplement (NPS-CPan)."  The email I received linking to the notice describes the request this way:

The Bureau of Justice Statistics encourages comments for 60 days until February 8, 2021, on a new data collection: National Prisoner Statistics program: Coronavirus Pandemic Supplement (NPS-CPan).  Your comments to BJS's request to the Office of Management and Budget, published in the Federal Register, should address points such as—

  • whether the proposed data collection is necessary, including whether the information will have practical utility
  • the accuracy of the agency's estimate of the burden of the proposed collection of data, including the validity of the methodology and assumptions
  • whether and how the quality, utility, and clarity of the information to be collected can be enhanced
  • the burden of the information collection on respondents, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques.

This data collection will provide data on the state and federal prison response to the coronavirus disease (COVID-19) between March 1, 2020 and February 28, 2021, including: monthly counts of admissions and stock populations in all publicly and privately operated facilities within each state, the total number of persons who received expedited release from prison due to the COVID-19 pandemic and criteria for deciding which prisoners received expedited release, the number of tests performed on prisoners and staff, the number of unique prisoners and staff testing positive for COVID-19, the age, sex, and race distributions of prisoners testing positive for, and dying from COVID-19, the number of prison staff who died from COVID-19, and the use of common mitigation tactics in facilities to identify persons with the disease and prevent its spread.  Respondents will be staff in state departments of corrections and the Federal Bureau of Prisons.

December 10, 2020 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Wednesday, December 09, 2020

Lots of great updates from CCJ's National Commission on COVID-19 and Criminal Justice

Cropped-ccj_nationalcommissioncovid_finallogo_halfreverse-small-2noted here a few month ago that the Council on Criminal Justice (CCJ) had launched an important, timely and impressive new commission titled the "National Commission on COVID-19 and Criminal Justice" and headed by two former US Attorneys General.  That commission has already helped support and has produced a number of important works (examples here and here), and I see that the commission now has a lot of new/updated work linked on the bottom of this webpage.  Here are links to what's there:

Impact Report: COVID-19 and Crime

Two researchers evaluating crime trends in 27 American cities during the pandemic and social unrest over police violence presented new findings through October 2020 in a report for the Commission.

Impact Report: COVID-19 and Jails

A report by researchers with the NYU Public Safety Lab, based on data from 375 jails across 39 states, examined changes in jail populations, their composition, and rebooking trends from Jan. 1 through late October.

Impact Report: COVID-19 and Prisons

Advancing knowledge about the impacts of COVID-19 on state and federal prisons, a report to the Commission updates a previous report on rates of COVID-19 infection and mortality in correctional facilities and describes differences in such rates among states.

December 9, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Tuesday, December 08, 2020

"The Court is in Recession: On the Implications of the COVID-19 Pandemic for Indigent Defense Spending"

The title of this post is the title of this timely new paper available via SSRN authored by Andrew Davies, Victoria M. Smiegocki and Hannah E. Hall. Here is its abstract:

What is the likely effect of the recession brought on by the COVID-19 pandemic on indigent defense budgets in the United States?  To look forward, we look backward.  We examine data on county-level spending on indigent defense in Texas during the Great Recession of 2007-2009.  Redistributive policies — those which use tax payer funds to support individuals who themselves pay little or no tax — are particularly susceptible to cuts during times of fiscal stress. Yet our analysis shows indigent defense policy, measured in terms of spending and access to counsel rates, was generally stable through the Great Recession years, even in counties hit hardest.

We attribute this apparent stability to two general explanations.  First, certain factors made Texas unique: expenditures on indigent defense were already relatively low prior to 2007 and legal changes in the state shored up the mandate to supply representation.  And second, the characterization of indigent defense itself as redistributive seems faulty.  Indigent defense policy is also, in an important sense, a set of mutually-beneficial transactions between lawyers and judges, occurring with comparatively little oversight.  The resilience of indigent defense services during times of scarcity suggests it is not only a policy which allocates funds to help the poor, but also is a policy which allocates funds in support of another clientele — the lawyers.

December 8, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, December 06, 2020

Tangible example of continuing big sentence reductions in COVID era thanks to the FIRST STEP Act

I have highlighted in some recent posts some important new circuit rulings about district courts' sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act (see here and here).  These rulings reinforce that federal judges now have broad authority to consider any and all "extraordinary and compelling reasons" for a sentence reduction and need not just focus on medical reasons for granting compassionate release.  But, of course, amidst the worldwide COVID pandemic, lots and lots of vulnerable inmates have lots and lots of medical reasons for requesting compassionate release, and many federal judges have been responsive to these requests.  

As of this writing, the BOP is now reporting at this FSA page that there have been "2,205 Approved" total "Compassionate Releases / Reduction in Sentences" since the passage of the FIRST STEP Act in December 2018.  The US Sentencing Commission has previously reported, as noted here, that 145 of these motions were granted in "First Step Year One," which in turn suggests that over 2000(!) compassionate release motions have now been granted by federal district judges in the COVID era. 

These topics are on my mind because a helpful reader sent me a district court ruling granting a sentence modification last week that provides a tangible example of a defendant securing quite a significant sentence reduction.  I sometimes get asked about examples of a defendant securing relief despite having served less than half of their initial sentence, and US v. Ferizi, No. 1:16-cr-42 (LMB) (ED Va. Dec. 3, 2020) (available for download below), is such a case.  The defendant in Ferizi was initially sentenced to 240 months in prison, but that sentence was "reduced to time served" after he served just over 60 months. Here is an excerpt (cites removed):

There is no dispute that defendant has a particularized susceptibility to the disease.  Defendant has had a chronic cough since childhood, and was diagnosed with asthma in 2018. Defendant's obesity is yet another factor that places him at greater risk for severe illness — the CDC has warned that having a body mass index greater than 30 is a risk factor, and defendant's BMI has fluctuated between 30 and 31 during his incarceration.  Considering these multiple risk factors, the government has conceded that Ferizi is at elevated risk of contracting COVID-19, and as such has established 'extraordinary and compelling circumstances' to justify release for purposes of 18 U.S.C. § 3582....

Defendant has also satisfactorily responded to the Court's concerns that it might be infeasible to release him if he could not then be promptly deported, either because he might be on a no-fly list or because Kosovo might refuse to accept him.  The government has "confirmed with FBI and ICE" that, in spite of defendant's no-fly status, he would be able to board a specifically-designated deportation flight....

The government argues that even if that is the case, "the seriousness of [defendant's] offense and the danger he poses to the community make him an inappropriate candidate for compassionate release."  There is no doubt that defendant committed a serious offense when he provided the personal information of U.S. government and military employees to ISIL, and as the victim impact letter attached to the Presentence Investigation Report demonstrates, his actions were harmful to the individuals whose names appeared on the list posted by ISIL.  Nevertheless, even defendants who have committed very serious offenses can be appropriately released from custody or supervision where "[t]here is no indication that defendant poses a risk to the public, and reducing defendant's sentence to time served will not diminish the seriousness of his offense or respect for the law."...

In this case, defendant's offense did not involve violence, and none of the individuals whose information he gave to ISIL suffered physical harm. Defendant has explained that he
"totally and completely oppose[s] ISIL and all that it stands for," and that immaturity rather than ideology was the primary motivator of his conduct....  Defendant had no significant criminal history before his arrest for his present offenses, which he committed when he was only 19 years old.  He has incurred only minor infractions while in BOP custody, all of which were more than two years ago.  He has completed educational courses and drug treatment programs, and has been rated by BOP staff as a "low" risk for recidivism....

Given defendant's age; the more than five years he has spent in prison, including the particularly brutal months in the Malaysian prison; his health risks; and the conditions at Gilmer, defendant has established extraordinary and compelling grounds for release, which the § 3552 [sic] factors do not outweigh. 

Download Ferizi Order Granting Compassionate Release

A few of many prior related posts:

December 6, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, December 05, 2020

The new death penalty: COVID has now killed in nine months more US prisoners than capital punishment over last 50+ years

I am sad to report that we have passed yet another remarkable milestone in COVID prisoner deaths, which prompts another one of my series of "new death penalty" posts.  The Marshall Project continues the critical job of counting via this webpage deaths from coronavirus reported among prisoners, and as of Friday, December 4, this accounting had tabulated "at least 1568 deaths from coronavirus reported among prisoners." 

As I have said in other posts, this considerable and still ever-growing number is sad and disconcerting on its own terms, but it is even more remarkable given that it now amounts to more than the total  number of prisoner deaths resulting from carrying out formal death sentences in the United States for the entire "modern era" of capital punishment.  According to DPIC data, there were a total of 1527 executions from the 1970s through today.  (Because of Supreme Court litigation, there were no US executions between 1967 and 1977, and death sentences and executions since the 1970s are generally considered the "modern" capital punishment era in the United States.) 

As I have mentioned in prior posts, I think comparing capital punishment and COVID incarceration carnage is problematic in various ways.  All persons executed in the US in modern times have been convicted of the most aggravated forms of murder.  The vast majority of prisoners to die of COVID were not criminally responsible for a death (although, as noted here, some persons on California's death row are part of the COVID prisoner death count).  In a few older posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes.  

Another problem with comparing capital punishment and COVID incarceration carnage relates to the facct that correctional staff do not die from administering capital punishment, but many have died from COVID.  The Marshall Project reports "at least 105 deaths from coronavirus reported among prison staff."  I am still pleasantly surprised that this too-big number is not even larger, but I will be ever troubled by the thought that these COVID casualty numbers could have been lower if more aggressive depopulation efforts were taken to move the most vulnerable and least risky persons out of the super-spreader environment that prisons represent.

A few of many prior related posts:

December 5, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Friday, December 04, 2020

More terrific work on persistent carceral problems from the Prison Policy Initiative

Regular readers are surely familiar with all my posts highlighting the cutting-edge research and analysis by the Prison Policy Initiative, and this week PPI released two more important new reports on pressing and persistent prison and jail problems:

By Emily Widra, "As COVID-19 continues to spread rapidly, state prisons and local jails have failed to mitigate the risk of infection behind bars." Excerpt:

[M]ore than eight months after the World Health Organization declared the pandemic, prisons and jails have generally failed to reduce their populations enough to protect the health and lives of those who are incarcerated.  While state prison populations have slowly declined from pre-pandemic levels, the pace of these modest reductions has slowed since the spring, even as national infection rates continue to rise.  And county jails — which made promising reductions in the spring — have failed to sustain those reforms....

Since July, 77% of the jails in our sample had population increases, suggesting that the early reforms instituted to mitigate COVID-19 have largely been abandoned.  For example, by mid-April, the Philadelphia city jail population reportedly dropped by more than 17% after city police suspended low-level arrests and judges released “certain nonviolent detainees” jailed for “low-level charges.”  But on May 1st — as the pandemic raged on — the Philadelphia police force announced that they would resume arrests for property crimes, effectively reversing the earlier reduction efforts. Similarly, on July 10th, the sheriff of Jefferson County, Alabama, announced that the jail would limit admissions to only “violent felons that cannot make bond.”  That effort was quickly abandoned when the jail resumed normal admission operations just one week later.  The increasing jail populations across the country suggest that after the first wave of responses to COVID-19, many local officials have allowed jail admissions to return to business as usual.

On the other hand, state prison populations have continued to decline, but not quickly or significantly enough to slow the spread of COVID-19. Even in states where prison populations have dropped, there are still too many people behind bars to accommodate social distancing, effective isolation and quarantine, and increased health care requirements.  For example, although California has reduced the state prison population by about 20% since January, the number of large COVID-19 outbreaks in California state prisons suggests that the population reduction needs to be much more drastic.  In fact, as of November 18th, California’s state prisons were still holding more people than they were designed for, at 105% of their design capacity.

By Emily Widra, "No escape: The trauma of witnessing violence in prison."  An excerpt:

Early this year — before COVID-19 began to tear through U.S. prisons — five people were killed in Mississippi state prisons over the course of one week.  A civil rights lawyer reported in February that he was receiving 30 to 60 letters each week describing pervasive “beatings, stabbings, denial of medical care, and retaliation for grievances” in Florida state prisons. That same month, people incarcerated in the Souza-Baranowski Correctional Center in Massachusetts filed a lawsuit documenting allegations of abuse at the hands of correctional officers, including being tased, punched, and attacked by guard dogs.

While these horrific stories received some media coverage, the plague of violence behind bars is often overlooked and ignored. And when it does receive public attention, a discussion of the effects on those forced to witness this violence is almost always absent.  Most people in prison want to return home to their families without incident, and without adding time to their sentences by participating in further violence.  But during their incarceration, many people become unwilling witnesses to horrific and traumatizing violence, as brought to light in a February publication by Professors Meghan Novisky and Robert Peralta.

In their study — one of the first studies on this subject — Novisky and Peralta interview recently incarcerated people about their experiences with violence behind bars.  They find that prisons have become “exposure points” for extreme violence that undermines rehabilitation, reentry, and mental and physical health. Because this is a qualitative (rather than quantitative) study based on extensive open-ended interviews, the results are not necessarily generalizable. However, studies like this provide insight into individual experiences and point to areas in need of further study.

December 4, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Tuesday, December 01, 2020

House Judiciary subcommittee to hold oversight hearing on federal Bureau of Prisons

As detailed at this link, the US House of Representative's Subcommittee on Crime, Terrorism, and Homeland Security (of the Committee on the Judiciary) has scheduled for the morning of December 2, 2020 on "Oversight of the Federal Bureau of Prisons and the U.S. Marshals Service." The witness list, available at this link, shows Directors of the Bureau of Prisons and of the United States Marshals Service, as the only witnesses.  I believe the hearing can be watched started at 9am on Dec 2 at this link

The written testimony of Michael Carvajal, Director of the Bureau of Prisons, is available at this link. Here is some interesting bits of data from this written  testimony:

The Residential Drug Abuse Program (RDAP), vocational and occupational training, education, and Federal Prison Industries (FPI) have been shown to reduce recidivism. In previous research studies, RDAP participants were 16 percent less likely to recidivate and 15 percent less likely to have a relapse in their substance use disorder within three years after release. Inmates who participate in vocational or occupational training were 33 percent less likely to recidivate, and inmates who participate in education programs were 16 percent less likely to recidivate.

I am pleased to report that since March 26, 2020, BOP has transferred 18,112 inmates to Home Confinement, and there are an additional 175 who are scheduled to transfer to Home Confinement in the coming weeks. These assessments remain ongoing and will continue for the duration of the pandemic.

UPDATE This Courthouse News Service piece, headlined "Officials Spar Over Covid Spread Through Prison System," provides an overview of some parts of the hearing.

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

Federal Defenders' updated fact-sheet on COVID-19 and federal detention

Sentencing Resource Counsel for the Federal Public Community Defenders now have updated this fact sheet on "The COVID-19 Crisis in Federal Detention."  This two-page document is dense with information and links about the continued ugly state of federal detention amidst the pandemic.  I recommend the full document and all its helpful links, and here are some of the details (absent the links):

Eight months into the pandemic, the failure to control COVID-19 in federal detention remains “both a public health catastrophe and a moral one.”  In the Federal Bureau of Prisons (BOP), the disease is infecting incarcerated individuals at a rate at least 4.77 times the general population.  The U.S. Marshals Service (USMS) doesn’t publicly post data on infections, but in statements to the media, it has reported that as of mid-November, 6,676 individuals in its custody had tested positive for COVID-19 and 20 had died. Federal officials have the power to protect individuals in federal custody from harm, but have failed to do so....

There have now been 157 reported deaths of individuals incarcerated in BOP, a devastating loss.  They were parents, siblings, and children.  They were us.  And some of their deaths surely were preventable.  BOP’s press releases reveal that the majority — 117 — were at higher risk of complications from COVID-19 and that BOP knew it.  Nearly a third of those who have died in BOP’s care were sixty-five or older.

At least 25 individuals died in BOP custody after filing—and in some cases, even after being granted — requests for release.  Many wrote to the court to plead for their lives in the days, weeks, and months preceding their deaths....

BOP and AG Barr have barely used the tools Congress gave them to safely lower prison populations.  The CARES Act authorized AG Barr to dramatically expand the use of home confinement to protect the most vulnerable from COVID-19.  Instead, AG Barr and BOP issued restrictive guidance and memos, each “more confusing than the next,” that together establish a “complex set of procedural and logistical hurdles to home confinement.”  The OIG found that BOP failed to use its early-release authorities to transfer vulnerable individuals to safety in its reviews of hard-hit facilities like Lompoc Federal Correctional Complex (FCC) and Oakdale FCC.  During the first three months of the pandemic, BOP approved only 11 of the 10,940 — 0.1% — of compassionate release requests it received.  The First Step Act of 2018 expanded compassionate release so that individuals may file a motion directly with the court 30 days after the warden’s receipt of a request, but that delay, coupled with routine opposition to release by DOJ, prevents vulnerable defendants from obtaining critical relief.  Based on a survey of defense attorneys representing clients across the country, we are not aware of a single BOP-initiated motion for compassionate release based on heightened risk of severe illness from COVID-19 infection.

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