Sunday, July 25, 2021

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

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

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

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

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

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

A few of many prior related posts:

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

Thursday, July 22, 2021

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

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

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

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

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

Monday, July 19, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

Some prior recent related posts:

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

Friday, July 16, 2021

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

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

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

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

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

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

Thursday, July 15, 2021

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

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

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

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

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

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

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

Tuesday, July 13, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, July 11, 2021

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

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

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

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

Tuesday, July 06, 2021

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

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

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

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

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

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

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

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

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

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

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

Some prior recent related posts:

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

Thursday, July 01, 2021

Hoping grandmothers and others on home confinement get compassionate consideration

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

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

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

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

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

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

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

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

Some prior recent related posts:

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

Monday, June 28, 2021

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

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

Prior related posts:

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

Sunday, June 27, 2021

Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?

In many prior posts (some linked below), I have discussed the Office of Legal Counsel memo released at the end of the Trump Administration which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  I see that there are two more notable new press articles on this topic:

From The Hill, "Biden faces criticism for not extending home confinement for prisoners"

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

The somewhat scattered Post article focuses on persons sent from home confinement back into federal prison for minor technical violations while also noting that the Biden Administration could seek to rescind the OLC memo or use clemency powers to keep folks home after the pandemic is deemed over.  The lengthy Hill article is more focused on the political discussion around this issue, but my post title reflects my growing frustration with this discourse.  Here are excerpts:

President Biden is under fire for not announcing an extension of a home confinement program for prisoners that was started during the coronavirus pandemic.  Progressives and criminal justice advocates have pressured the administration for months to rescind a Trump-era policy that kills the program when the pandemic ends.  They are frustrated that Biden's remarks this week didn’t address it....

Rep. Bonnie Watson Coleman (D-N.J.), who led a letter of 28 House Democrats in April calling for the policy to be rescinded, “is disappointed he hasn’t officially extended the home confinement program,” a spokesperson said....

The home confinement program during the coronavirus pandemic was launched in response to the CARES Act in March and directed the federal Bureau of Prisons to prioritize home confinement for certain inmates in an effort to limit the spread of the coronavirus.  Roughly 24,000 inmates since have been sent to home confinement.

In the final days of the Trump administration, the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence.  Biden and Attorney General Merrick Garland could rescind that policy....

Advocates also argue that those inmates transferred to home confinement have been monitored and largely have not violated the conditions of their situation. “If they’re so low risk and they haven’t violated the conditions, it’s hard to imagine any reason why they should be sent back,” said Maria Morris, senior staff attorney at the ACLU National Prison Project, adding that it would be a “ridiculous waste of resources.”

Many of the inmates placed in home confinement are elderly or in a vulnerable situation due to COVID-19, which posed a threat to them if they stayed inside a prison.  [Holly] Harris calls it “bad government” to send those inmates back to prisons. “At this point, the president just needs to grant them clemency and let them move on.  They are out because the Trump Administration felt it was safe enough to let them go home.  What more cover does he need?” she said.

I agree entirely with advocates saying it would be "bad government" and a "ridiculous waste of resources" to send back to prison thousands of vulnerable people who have been successful serving their sentences at home during the pandemic.  But I do not think it entirely right to describe the OLC memo as a "Trump-era policy" that is readily changed by the Biden Administration.  The OLC memo is not really a "policy" document; it is an elaborate interpretation of how the CARES Act alters BOP authority to place and keep persons in home confinement.  Though the OLC statutory interpretation requiring a return of persons to federal prison is debatable, the fact that this interpretation of the CARES Act amounts to bad policy does not itself give the Biden Administration a basis to just ignore statutory law.

Of course, statutory law notwithstanding, Prez Biden could (and I think should) use his clemency authority to extended home confinement for those at risk of being sent back to federal prison post-pandemic.  But if members of Congress are "disappointed" that the home confinement program is not being extended, they should amend the CARES Act to do exactly that with an express statutory provision!  This difficult issue stems from the text of the CARES Act; if the statutory text Congress passed when COVID first hit now is clearly operating to creates wasteful, bad government, Congress can and should fix that statutory text.  Put simply, this matter is a statutory problem that calls for a statutory fix. 

I surmise that advocates (not unreasonably) assume that getting a gridlocked Congress to "fix" this CARES Act home confinement problem through statutory reform is much less likely than achieving some other fix through executive action.  But, as I see it, exclusive focus on executive action to fix what is fundamentally a statutory problem itself contributes to legislative gridlock.  Indeed, I am more inclined to criticize the Biden Administration for not urging Congress to fix this CARES Act problem, especially because the notable success of home confinement policies during the pandemic could and should justify statutory reforms to even more broadly authorize ever greater use of home confinement in "normal" times.

Notably, three sentencing-related bill made their way through the Senate Judiciary Committee earlier this month (basics here).  Because I am not an expert on either legislative procedure or inside-the-Beltway politics, I do not know if it would be easy or impossible to include add "home confinement fix" to one of these bills.  But I do know that I will always want to believe that Congress at least has the potential to fix problems of its own creation.  But, as this post is meant to stress, I think it important not too lose sight of the fact that this is a fundamentally a congressional problem, not a presidential one.      

Some prior recent related posts:

UPDATE:  Achieving a media troika, the New York Times also published this lengthy article on this topic under the headline "Thousands of Prisoners Were Sent Home Because of Covid. They Don’t Want to Go Back."  Like the Post article, this piece is a bit scattered in its focus while also directing most of the attention on the Justice Department and Biden Administration rather than highlighting Congress's critical role in this story.  This passage is especially notable:

Changing the prison system is one of the few areas that has drawn bipartisanship agreement in Washington. Senator Charles E. Grassley, Republican of Iowa, joined Democrats in criticizing the Justice Department memo, which was issued in January.

“Obviously if they can stay where they are, it’s going to save the taxpayers a lot of money,” Mr. Grassley said at the hearing [before the Senate Judiciary Committee in April]. “It will also help people who aren’t prone to reoffend and allows inmates to successfully re-enter society as productive citizens.”

The next sentence of this article, if it were telling the full story, should at the very least note that Congress could "fix" the OLC memo through a simple statutory change. I agree with Senator Grassley that it would be wrong to send all these folks back to prison after they have done well on home confinement, and so I think Senator Grassley should get together with his pals on the Capital Hill and pass a statute to that the law no longer could be interpreted to require sending them all back to prison at taxpayer expense.

June 27, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, June 26, 2021

"The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020"

The title of this post is the title of this notable paper authored by Margaret Colgate Love and David Schlussel now available via SSRN.  Here is its abstract:

This report from the Collateral Consequences Resource Center summarizes legislative efforts and executive orders in 2020 to reduce barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life.  In 2020, 32 states, D.C., and the federal government enacted 106 bills, approved five ballot initiatives, and issued four executive orders to restore rights and opportunities to people with a record.  While states enacted fewer laws than in the preceding two years, evidently because of the disruptions caused by the pandemic, the fact that there was still considerable progress is testament to a genuine and enduring public commitment to a reintegration agenda. The report provides topical discussions of the reforms, a legislative report card of the most and least productive states, and an appendix documenting the laws by jurisdiction.

June 26, 2021 in Collateral consequences, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (1)

Wednesday, June 23, 2021

"The Impact of COVID-19 on Crime, Arrests, and Jail Populations - An Expansion on the Preliminary Assessment"

The title of this post is the title of this new expanded report on COVID impacts on some critical criminal justice metrics.  Here is the 20+ page report's executive summary:

Beginning in March 2020, local and state criminal agencies took several actions to mitigate the rising number of people being infected with the COVID-19 virus.  To address these concerns, a variety of policies were enacted to reduce the number of persons held in jails.  These polices were designed to 1) mitigate the number of people being arrested and booked into local jails and 2) reduce the length of stay (LOS) for those admitted to jail.  Concurrently, public safety concerns were raised that by lowering the jail populations, crime in the community would increase.

To address these concerns, the JFA Institute (JFA), through resources provided by the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge (SJC) program, began tracking and analyzing six cities and counties participating in SJC (jurisdictions) and their jail and crime data in real time to monitor the impact of these mitigation activities.  In October 2020, JFA expanded the study to eleven jurisdictions and collected the data through December 2020 to examine longer term trends and a potential rebound.

Analysis of the eleven jurisdictions:

  • Analysis of the eleven jurisdictions studied revealed jail populations declined, yet crime and arrests declined as well, giving indication that declining jail populations did not compromise public safety.

  • Overall, total reported crime was 22% lower in December 2020 when compared to December 2019 and 14% lower for the total number of reported crimes for CY 2020 versus CY 2019.

  • When combining all jurisdictions, there was an average 39% decrease in jail bookings, which equates to over 130,000 fewer jail bookings in a one-year time frame.  Jail booking decreases were fueled by the decrease in property crime and arrests, primarily for misdemeanor and lower-level felony charges.

  • As a result of the change in jail bookings, the composition of the jail populations changed postCOVID-19, with a higher proportion being male and charged with violent felony and non-drug felony crimes.

  • The LOS for people in jail has increased due to the changing make-up of the jail populations and a slowdown in court case processing.

  • After the historic initial decrease, jail populations rebounded somewhat but stabilized in October 2020. During this time, there was no substantial increase in overall crime.

There are challenges ahead in keeping jail populations low, namely maintaining lower arrests, jail bookings, and reducing the length of stay by expediting the disposition of criminal cases.  The response to COVID-19 has shown that such reforms are possible and can safely reduce the number of persons held in jail but sustaining lower jail populations will require maintaining these reforms in some manner.

June 23, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, June 22, 2021

"Dead Man Waiting: A brief profile of deaths in Texas prisons among people approved for parole release"

The title of this post is the title of this remarkable new report that provides a critical reminder the "being paroled" is a nuanced (and not-always-life -saving) reality in Texas.  Here is the report's abstract which also discusses its origin and authors:

A troubling number of people in Texas prisons and jails who have been approved for release on parole are dying in custody before they ever step foot outside prison gates, according to a new report from the Lyndon B. Johnson School of Public Affairs at The University of Texas at Austin. In a first-of-its-kind analysis, “Dead Man Waiting,” shows that while deaths among parole-approved people increased during the COVID period, this population was already dying in large numbers from other chronic health issues while awaiting release.  The findings in this report raise serious questions about the state’s parole system and why people who met the Texas Board of Pardons and Parole (BPP)’s stringent approval guidelines could end up dead before their release.  Researchers offer recommendations for safely releasing this population immediately after parole approval. This report was produced as part of the COVID, Corrections, and Oversight Project at the Lyndon B. Johnson School of Public Affairs, with support from Arnold Ventures. The COVID, Corrections, and Oversight Project is led by Michele Deitch, Project Director, and Alycia Welch, Associate Director.

Here are just a few paragraphs from the first part of the short report:

There are more than 10,700 people in Texas prisons who have been approved for release on parole but remain in custody.  This number represents nearly one-tenth of the entire Texas prison population. Despite being approved for parole, some of these people will never walk out the prison gates because they die while waiting for release....

In any given month before COVID, people remained in Texas prisons for an average of 3 to 4 months after their parole approval before they were released.  During the COVID pandemic, the typical delay in release ranged from 5 to 11 months; the overall average was 6 months.

Between March 2020, when TDCJ locked down its facilities due to COVID, and March 2021, at least 42 people who were approved for release on parole died in Texas prisons. These are people who BPP determined are safe enough to be released by a certain date or pending the completion of a required program.  They met some of the nation’s most burdensome standards for parole approval and yet they still died behind bars while awaiting their release.

June 22, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Thursday, June 17, 2021

Local report on federal compassionate release in Rhode Island raises questions about US Sentencing Commission data

A helpful reader made sure I saw this new reporting about federal compassionate release practices from a local source in the Ocean State under the headline "Federal inmates seeking early release in RI approved 40% of the time in 2020."  Here are excerpts (with a little emphasis added):

More than one of every three federal inmates sentenced in Rhode Island who sought compassionate release last year was let go early from prison, according to data from the U.S. District Court in Rhode Island.

A new report from the U.S. Sentencing Commission found Rhode Island federal judges were second only to jurists in Oregon for districts granting compassionate release requests during 2020.  While data directly from federal court in Providence shows the Sentencing Commission undercounted denials during that time period, U.S. District Judge William Smith said he wasn’t surprised to learn Rhode Island was more likely than other districts to grant early release.  “I think we’ve been really, really aggressive and careful about compassionate release petitions that have come before us,” Smith said. “We’ve paid a lot of attention to them and I am really proud of the way we’ve handled them.”

A Target 12 review of data provided by the federal court found 78 inmates who were sentenced in Rhode Island requested an early release in 2020.  Of those requests, 45 were denied, 30 were granted, and three were withdrawn.

Smith said weighing whether they should grant an early release is a balancing test between the risk to an inmate, and a risk to the community.  “There were various points in the pandemic when some federal prisons were literally on fire with the virus,” Smith said.

He added that the judges were keenly aware that a denial of an early release could be tantamount to a death sentence at the height of the pandemic. “There were times when you would go to bed at night hoping you wouldn’t wake up in the morning to find someone you had under consideration for compassionate release was now on a ventilator in a hospital,” he said. “That was going on all across the country.”

Despite those concerns, the answer was still “no” more often than “yes.” “If [an inmate] is in for a very long period of time for a crime of violence – let’s say – that is much more difficult and probably don’t grant that one,” Smith said.

That was the case with inmates Gregory Floyd and Harry Burdick, who were convicted in the horrific June 2000 execution-style slaying of Jason Burgeson and Amy Scute at a golf course in Johnston. The couple was carjacked after leaving a club in Providence before being gunned down. Both Floyd and Burdick had their compassionate release requests denied.

A Target 12 review of the cases that were granted an early release found none of the inmates were serving time for crimes of violence.  The vast majority of the convictions – 19 of 30 – were primarily drugs cases, five were financial crime convictions, two were firearm possession cases, and one each of art theft, escape from prison, bank robbery, and a conviction of “transportation with intent to prostitute.”...

Thousands of inmates across the country [filed CR motions] as COVID-19 was ripping through congregate care facilities, including prisons. According to the U.S. Federal Bureau of Prisons, more than 44,000 inmates contracted the virus and 238 of them died. Four BOP staff members also succumbed to the disease. “I am really proud to say as far as I know, not a single inmate from Rhode Island died of coronavirus in prison,” Smith said, adding just one inmate who was released committed a violation that sent them back to prison.

With the pandemic seemingly receding, 2021 has been a different story. Of the 23 inmates who have asked for compassionate release since January, just one has been granted. “The medical issues are not as chronic, not as severe, the prisons are in a much better shape in terms of controlling the virus,” Smith said. “Then the third piece is the vaccination rate has been rising.”...

But for those who refused to get the vaccine, especially out of personal preference, Smith said that wouldn’t likely help any of their future arguments for compassionate release on the basis of being at heightened risk of contracting the virus. “I think it is on them,” he said.

I lamented last week in this post that the US Sentencing Commission's data run on CR motions in 2020 provided no information about the persons in prison or the crimes that were resulting in grants and denials of sentence reductions.  It is thus quite valuable to see this local report detail that nearly two-thirds of persons getting sentence reductions were in drug cases and apparently none involved crime of violence.  It will be interesting to see if this pattern holds true if and when we get more details from more districts.

But while pleased for this additional data from Rhode Island, I am troubled to see that the US Sentencing Commission may be (drastically?) under-reporting denials of relief.  I do not want to assume anything hinky is going on, because there may be valid data collection question and challenges here explaining the discrepancy between the USSC data report and the data reported by the local news source.  For example, if a defendant is initially denied a motion for a sentence reduction, perhaps on procedural grounds, and then a month later prevails on such a motion, is this is coded as just one grant or is it one denial and one grant?

For all sort of reasons, I think it will prove very important to try to be very careful assembling accurate data here on all sorts of sentence reduction particulars.  The US Sentencing Commission, if and when it ever has Commissioners, will at some point need to modify various policy statements about these matters, and good data will be critical for the USSC and others advising the USSC to do their work in sound ways.

A few of many prior related posts:

June 17, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, June 12, 2021

Senate Judiciary Committee advances three criminal justice and sentencing reform bills

I noted in this post last month that the US Senate Judiciary Committee had  plans to take three criminal justice bill: the First Step Implementation Act, the COVID-19 Safer Detention Act, and the Prohibiting Punishment of Acquitted Conduct Act.  This Law360 piece from a few weeks ago reported that, "on a 14-8 vote, the Senate Judiciary Committee passed the COVID-19 Safer Detention Act of 2021."  And the other bill moved forward this past week, as reported in this press release from Senator Grassley:

[T]he Senate Judiciary Committee voted to advance two bipartisan criminal justice reform bills authored by U.S. Senate Majority Whip Dick Durbin (D-Ill.), Chair of the Senate Judiciary Committee, and U.S. Senator Chuck Grassley (R-Iowa), Ranking Member of the Senate Judiciary Committee — the Prohibiting Punishment of Acquitted Conduct Act of 2021 and the First Step Implementation Act of 2021. These bills will build on the landmark First Step Act and continue Congress’s bipartisan efforts to make our criminal justice system fairer....

The bipartisan, bicameral Prohibiting Punishment of Acquitted Conduct Act of 2021 would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury.  Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.  The legislation was passed out of Committee by a bipartisan vote of 16-6.  More information on the Prohibiting Punishment of Acquitted Conduct Act of 2021 can be found here.
 
The bipartisan, bicameral First Step Implementation Act would advance the goals of the landmark First Step Act (FSA), by, among other provisions, making eligible for retroactive review some of the FSA’s sentencing reforms. The FSA — authored by Durbin and Grassley and signed into law in 2018 — is bipartisan criminal justice reform legislation designed to make our justice system fairer and our communities safer by reforming sentencing laws and providing opportunities for those who are incarcerated to prepare to reenter society successfully.  The First Step Implementation Act was passed out of Committee by a bipartisan vote of 13-9.  More information on how the First Step Implementation Act of 2021 would further the goals of the FSA can be found here.

I have little sense of whether or when these bills might move through Congress and get to the desk of the President, but I am hope that congressional leadership sees that these bill are worth prioritizing because they have more bipartisan support that almost any other proposals these days.

Some prior related posts:

June 12, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, June 11, 2021

Another dive into the ugly BOP realities of federal compassionate release during the pandemic

The Marshall Project has this new piece on federal compassionate release with a full title that captures its essential themes: "31,000 Prisoners Sought Compassionate Release During COVID-19. The Bureau of Prisons Approved 36.  As the pandemic worsened inside federal prisons, officials granted fewer releases." Here are excerpts (with links from the original):

Tens of thousands of federal prisoners applied for compassionate release after the virus began sweeping through lockups. But new Bureau of Prisons data shows officials approved fewer of those applications during the pandemic than they did the year before.  While the BOP director greenlit 55 such requests in 2019, a new director who took over in early 2020 approved only 36 requests in the 13 months since the pandemic took hold in March 2020.  The downturn in approvals came even as the number of people seeking compassionate release skyrocketed from 1,735 in 2019 to nearly 31,000 after the virus hit, according to the new figures.

Because the numbers were compiled for members of Congress, BOP spokesman Scott Taylor said the agency would not answer any questions about the data, “out of respect and deference” to lawmakers.  But Shon Hopwood, a Georgetown law professor, called the bureau’s decrease in compassionate releases during the pandemic “mind-boggling.”...

Federal judges have stepped in to release thousands of people in the face of BOP inaction. And the bureau continues to face intense scrutiny and several lawsuits over its handling of COVID-19.  Since the first reported case last spring, more than 49,000 federal prisoners have fallen ill and 256 have died, according to corrections data tracked by The Marshall Project.  Thirty-five of those who died were waiting for a decision on their release requests....

People in federal prisons seeking release during the pandemic have two main ways to get out early.  One is home confinement, which allows low-risk prisoners to finish their sentences at home or in a halfway house.  They’re still considered in custody, and the decision to let them out is entirely up to the Bureau of Prisons.  As COVID shutdowns began last March, Congress expanded the eligibility criteria and then-Attorney General Bill Barr ordered prison officials to let more people go.  Since then, more than 23,700 people have been sent to home confinement — though several thousand of them may have to return to prison once the pandemic ends.

The other way to get out early is through compassionate release.  If a warden endorses a prisoner’s request, the case goes to BOP’s central office, which usually rejects it.  But if a warden denies a request or 30 days pass with no response, then the incarcerated person can ask a judge to reduce the sentence to time served.  The new data showed 3,221 people have been let out on compassionate release since the start of the pandemic — but 99% of those releases were granted by judges over the bureau’s objections.

Last fall, The Marshall Project published data showing that the Bureau of Prisons rejected or ignored more than 98% of compassionate release requests during the first three months of the pandemic.  Citing that reporting, federal lawmakers in December wrote to the agency to demand more data on both compassionate release and home confinement.

The updated figures outlined in the agency’s response to Congress in April showed that BOP wardens actually endorsed slightly fewer compassionate release requests as the pandemic progressed.  In the first three months, wardens approved 1.4% of release applications.  The central office rejected most of those, with Director Michael Carvajal ultimately approving just 0.1%.  By the end of April — more than a year into the pandemic, and after more than 200 prisoner deaths — wardens had approved 1.2% of applications, and Carvajal again accepted just 0.1%.

By comparison, federal judges approved 21% of compassionate release requests they considered in 2020, according to a recent report from the U.S. Sentencing Commission....

For the most part, the bureau has offered little insight into its reasons for denying compassionate release. According to the information BOP sent to Congress, wardens denied nearly 23,000 requests because the person “does not meet criteria.”  Roughly 3,200 people were denied because their cases were “not extraordinary and compelling,” while a little over 1,200 were rejected for not providing enough information or documentation.  Four people met the criteria but were denied due to “correctional concerns,” the agency said.

Of the 374 prisoners that wardens recommended for compassionate release during the pandemic, the agency’s central office rejected or did not respond to just over 90%, apparently without making any note as to why.  “The BOP does not track the specific reasons for approval or denial of a compassionate release request at the Central Office level, as there can be several reasons for a particular decision,” wrote General Counsel Ken Hyle.  Some of those reasons, he added, could be opposition from federal prosecutors, a lack of release plan or fear that letting someone out would “minimize the severity of the inmate’s offense.”

A few of many prior related posts:

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

Monday, June 07, 2021

FAMM urges AG Garland to prevent those on home confinement during pandemic from being returning to federal prison

In various prior posts (some linked below), I have covered the Office of Legal Counsel memo released at the very end of the Trump Administration which interprets federal law to require that certain persons transferred from federal prison to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  The folks at FAMM have done a great job spotlighting the problems this OLC memo creates, and Kevin Ring at FAMM today sent this new extended letter to Attorney General Garland urging him to address these matters "as quickly as possible."  Here are excerpts from the letter:

Dozens of members of Congress who voted for the CARES Act have written to you, clarifying that they did not intend people on home confinement to return to prison.  The BOP did not tell people who were transferred to home confinement that they might have to return. Corrections officers were unaware of the possibility....

There is no public safety reason to require anyone abiding by the terms of their transfer to be reincarcerated.  The BOP screened each one of the approximately 4,000 people currently on home confinement using strict criteria established by Attorney General William Barr.  Those deemed to pose no danger to the community now wear ankle monitors and are subject to rigorous surveillance.  Some have been home for a full year. Only a vanishingly small percentage have violated the terms of their confinement, according to the BOP....

Attorney General Garland, we urge you to end now the needless suffering and extreme stress these families are experiencing.  You can do so in a number of ways.

First, you have the authority to rescind or overrule the OLC memo.  We, along with a bipartisan group of members of Congress and advocacy organizations, have urged and continue to urge you to do so.

If you feel constrained to follow the OLC’s opinion, you can and should recommend to the president that he act now to grant clemency to anyone who is serving CARES Act home confinement and has complied with the rules of their supervision.  The Department then should do everything it can to support clemency petitions, including ensuring the speedy review and transfer of cases to the president.  The president has expressed a desire to use his clemency authority more robustly.  Commuting the sentences of these extraordinarily low-risk people would be a smart and easy start.

The Department could use its existing authority to keep people home by transferring those eligible for the Elderly Offender Home Detention Program.  It also could use its authority to seek compassionate release for those on CARES Act home confinement, especially those who have years left on their sentences.  At a minimum, the Department should direct that U.S. Attorneys not oppose compassionate release motions brought by people in those circumstances.

In all cases, the Department should direct the BOP to use its furlough authority to prevent anyone whose status is not resolved before the end of the emergency period from having to return to prison.  This approach also would be useful for those people nearing the end of their sentences and for whom the measures discussed above are not necessary because they will shortly be eligible for transfer under 18 U.S.C. § 3624(c).

Some prior recent related posts:

June 7, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Vera Institute reports on "People in Jail and Prison in Spring 2021" and finds US total below 1.8 million

The Vera Institute of Justice is continuing to do terrific work on the challenging task of collecting (close-to-real-time) data on the number of people in state and federal prisons and jails.  Vera is now regularly reporting much more timely information on incarceration than the Bureau of Justice Statistics, which often releases data that lags a full year or more behind.  Impressively, and as reported in this post, Vera produced a great report titled "People in Jail and Prison in 2020" in January, and now it already produced this updated report titled "People in Jail and Prison in Spring 2021" with the latest nationwide prison and jail population headcounts. Here is part of the start of the report (with a few sentences I have emphasized):

When the COVID-19 pandemic was first detected in the United States, it was clear that the virus would cause widespread suffering and death among incarcerated people. Advocates were quick to call for prison and jail releases. However, a little more than a year later, decarceration appears to have stalled.  After an unprecedented 14 percent drop in incarceration in the first half of 2020 — from 2.1 million people to 1.8 million — incarceration declined only slightly from fall 2020 to spring 2021.  Generally, states that started 2020 with higher incarceration rates made fewer efforts to reduce incarceration through spring 2021. This pattern speaks to the political, economic, and social entrenchment of mass incarceration.

At the federal level, the number of people in civil custody for U.S. Immigration and Customs Enforcement (ICE) is less than one-third of the 2019 population, while the number of people detained for the U.S. Marshals Service (USMS) facing federal criminal charges reached an all-time high.

Jail populations in rural counties dropped by 27 percent from 2019 through March 2021, the most of any region.  The historic drop in the number of people incarcerated was neither substantial nor sustained enough to be an adequate response to the pandemic, and incarceration in the United States remains a global aberration.

Recent evidence from the Bureau of Justice Statistics also shows that racial inequity worsened as jail populations declined through June 2020.  Vera Institute of Justice (Vera) researchers collected data on the number of people incarcerated throughout 2020 and into early 2021 to provide timely information about how incarceration is changing in the United States during the COVID-19 pandemic.  Vera researchers estimated the incarcerated population using a sample of approximately 1,600 jail jurisdictions, 50 states, and the Federal Bureau of Prisons, the USMS, and ICE.

I find all this data fascinating, and I am actually encouraged that prison populations as reported by Vera is now below 1.2 million, which is the lowest it has been in over 25 years (and probably the lowest per capital in more than three decades).  This Vera report is clearly eager to stress that incarceration is still "mass" in the US, but I am still eager to note that we are still generally trending in the right direction.  Whether that will hold as we get closer to getting past COVID, as as murders and gun assaults are spiking, is the story I will be watching closely in the months and years ahead.

June 7, 2021 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, May 25, 2021

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

6a00d83451574769e20263e9590f4e200bnoted here last summer 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 produce a number of important works (examples here and here and here), and it has produced a series of reports on recent crime trends under the heading "Pandemic, Social Unrest, and Crime in U.S. Cities."  The latest version of the full report, called a March 2021 update, is available at this link.  This webpage, titled "Impact Report: COVID-19 and Crime," provides this overview:

This report examines changes in crime rates in 34 American cities since the start of the COVID-19 pandemic in 2020, with a special emphasis on homicide and other violent crimes. The current study updates previous studies by the authors with additional data through March 2021. 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

  • During the first quarter of 2021, homicide rates declined from their peak in the summer of 2020, but remained above levels in the first quarter of prior years. The number of homicides rose by 24% compared to the first quarter of 2020 (an increase of 193 homicides) and by 49% compared to the first quarter of 2019 (an increase of 324 homicides).
  • Despite recent increases, the 2020 year-end homicide rate in the study sample was just over half what it was for those cities 25 years ago (11.4 deaths per 100,000 residents in those cities versus 19.4 per 100,000 in 1995).
  • Aggravated and gun assault rates were also higher in the first quarter of 2021 than in the same period of 2020.  Aggravated assault rates increased 7%, while gun assault rates went up by 22%.
  • Burglary, larceny, and drug offense rates were lower in the first quarter of 2021 than during the first quarter of 2020.  Residential burglary, non-residential burglary, larceny, and drug offense rates dropped by 16%, 7%, 16%, and 24% from the same period in 2020.  Motor vehicle theft rates were 28% higher in the first quarter of 2021 than the year before.
  • Domestic violence did not increase in the first quarter of 2021 over the first quarter of 2020. This result is based on just 11 of the 32 cities and should be viewed with caution.
  • In response to elevated rates of homicide, the authors conclude that urgent action is required.  As the pandemic subsides, pursuing crime-control strategies of proven effectiveness and enacting needed policing reforms will be essential to achieving prompt yet durable reductions in violent crime in our cities.

May 25, 2021 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

Monday, May 10, 2021

Effective review of (just some) issues surrounding home confinement for the Biden Justice Department

This new extended Hill article, headlined "DOJ faces big decision on home confinement," provide an effective accounting of the building discussion around the status of home confinement in the federal system as it appears the pandemic is winding down.  I recommend the full piece, and here are excerpts:

The Biden administration will soon have to decide whether to send back to prison thousands of inmates who were transferred to home confinement after the start of the COVID-19 pandemic.  President Biden and Attorney General Merrick Garland have been facing mounting calls to rescind a policy implemented in the final days of the Trump administration that would revoke home confinement for those inmates as soon as the government lifts its emergency declaration over the coronavirus.

Advocates and lawmakers argue that the program has been a resounding success, and that it would be unjust to reincarcerate thousands of individuals who abided by the terms of their home confinement.  “If you're one of these people, you're trying to figure out, 'Do I go back to college? Do I start a new job? Do I start a family? Do I sign a lease? I mean, what can I do, not knowing where I'm going to be in six months?’ That's cruel to keep somebody in that doubt and uncertainty for this long and to say, ‘You know, don't worry about it, it's not going to happen tomorrow,’” said Kevin Ring, president of the advocacy group Families Against Mandatory Minimums.

Last year, in response to the CARES Act, then-Attorney General William Barr directed the federal Bureau of Prisons (BOP) to prioritize home confinement for certain inmates in order to limit the spread of the coronavirus within the prison system.  According to the BOP, about 24,000 inmates have been released to home confinement since the beginning of the pandemic. Advocates say there are now about 4,500 people facing uncertainty about whether they might have to go back to prison after months of reintegrating into society.

BOP Director Michael Carvajal told a House Appropriations subcommittee in March that just 21 inmates released to home confinement were sent back to prison for alleged rule violations. And in the program overall, only one person has committed a new crime....

The uncertainty about the program’s fate began in January, a few days before President Biden's inauguration, when the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence.

Randilee Giamusso, a BOP spokesperson, said the Biden administration had recently expanded the eligibility for home confinement.  “This is an important legal issue about the language Congress used in the CARES Act,” Giamusso said in a statement.  “It is important to recognize even under the Office of Legal Counsel's (OLC) reading of the statute, the BOP will have discretion to keep inmates on home confinement after the pandemic if they’re close to the end of their sentences.  For the more difficult cases, where inmates still have years left to serve, this will be an issue only after the pandemic is over.”

Giamusso added that Biden recently extended the national emergency regarding COVID-19, and that the Department of Health and Human Services expects the public health crisis to last at least through December.  “The BOP is focused right now on expanding the criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred,” Giamusso said.

Still, some lawmakers and advocates argue that the Trump-era policy would unnecessarily upend the lives of those deemed low-risk enough to be sent home and who have since abided by the terms of their home confinement.  Biden and Garland are facing pressure to rescind the policy memo, receiving letters from Sen. Dick Durbin (D-Ill.), the chairman of the Senate Judiciary Committee; a bipartisan group of 28 House lawmakers; and a coalition of advocacy groups....

This past week, the White House told advocates that Biden is preparing to use his clemency powers, in what would be a rare early exercise of the power to commute or pardon incarcerated people.  Ring said rescinding the home confinement policy, or using another tool to keep those affected by it out of prison, is an easy way for Biden to show that he’s serious about taking on mass incarceration.

“They've said they want to use the clemency authority more robustly to let people out of prison who don't need to be there,” said Ring, who has served time in federal prison. “Well, here's 4,500 people that Bill Barr and Donald Trump cleared as the lowest of low risk. So if you can't find a way to keep these people home, I mean, how discouraging will it be for those who are hoping for clemency?”...

Experts and advocates alike see the home confinement policy as a radical experiment that yielded positive results, potentially adding more momentum to criminal justice reform efforts that have seen a growing bipartisan consensus against the tough-on-crime policies of the late 20th century.  Ring, of Families Against Mandatory Minimums, said lawmakers should consider the success of the home confinement program as a potential alternative to incarceration.  “I think this is still a good model or a good use of natural experiment to show that we can keep more people in the community, and not keep them in prison,” he said. “Congress should use what happened here as evidence for expanding home confinement going forward.”

But in the meantime, Ring said, the priority is for the Biden administration to make clear that it does not intend to re-incarcerate those who are serving their sentences out at home. “Not only do they need to fix it, they need to fix it immediately,” he said. “They need to announce to these people, ‘You're not going back. We're not making you go back. We'll rescind the memo or we'll use some other authority we have to fix this.' But these people need to get on with their lives.”

I am grateful for this effective review of not just the COVID-driven home confinement changes, but also the broader issue of whether this unfortunate "natural experiment" justifies a robust rethinking of home confinement as an alternative punishment.  And I think that issue need to be explored even further because I surmise that home confinement can end up meaning lots of different things for lots of different persons.  And, in addition to the wonderfully low number of problems with the COVID home confinement transfers, it will be interesting and important to track long-term recidivism rates for these groups. 

Some prior recent related posts:

May 10, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Saturday, May 08, 2021

"Enjoined and Incarcerated: Complications with Incarcerated People Seeking Economic Relief under the CARES Act"

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

Congress passed the first round of checks as part of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) in late March 2020 to infuse more than $2 trillion into the national economy and address the overlapping medical and economic emergencies stemming from the COVID-19 pandemic.  But incarcerated individuals were initially excluded from receiving stimulus checks, despite being eligible to receive them.  This delay in delivering immediate cash assistance through the CARES Act to incarcerated individuals exposes the inadequacy of the tax administrative doctrine in resolving emergency relief disputes and how exclusionary measures embedded in the tax system and other economic policies inhibit the rehabilitation prospects of incarcerated people.

Millions of Americans made personal and financial sacrifices in 2020 to aid the public health efforts, including incarcerated individuals.  In return, those who were denied economic relief on an arbitrary basis by the government should not have to wait until the following tax year to seek a legal remedy.  In other words, the legal framework for challenging tax decisions is too unsympathetic toward many taxpayers that rely on policies embedded in the tax code for immediate economic relief.  Further, by providing nearly universal economic stimulus, Congress recognized the plight of incarcerated individuals during a pandemic and moved away from the exclusionary stimulus measures enacted in prior economic crises.  Providing economic stimulus to those in incarceration is sound economic stimulus policy so long as punitive measures for individuals in and exiting incarceration are embedded in tax and economic policy.

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

Friday, May 07, 2021

Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison

Alice Marie Johnson and Ja’Ron Smith have this notable new USA Today opinion piece headlined "COVID-19 concerns sent thousands of inmates home. Give clemency to those who deserve it." The subtitle of the piece captures its themes: "Nearly 5,000 inmates may be sent back to prison. After rebuilding their lives, and being contributing members of society, how is being returned justice?". Here are excerpts (links from original):

This spring, as more Americans are able to get vaccinated, there’s hope the pandemic is nearing its end and life is slowly returning to normal.  But for 4,500 Americans, the end of the pandemic could instead mean returning to prison. 

The March 2020 CARES Act allowed the Federal Bureau of Prisons to expand the period of home confinement, which usually comes at the end of a sentence.  As a result, thousands of incarcerated individuals convicted of nonviolent crimes were released from prison – where COVID-19 swept through cramped facilities – to home confinement. Many were able to reunite with their families and find jobs.   

But earlier this year, the Justice Department ordered that individuals under home confinement due to COVID-19 must return to prison when the emergency is lifted, putting 4,500 lives in limbo, awaiting an uncertain date when their return to normalcy is taken away.  Inmates near the end of their sentence may be able to stay home if the Bureau of Prisons grants permission, according to a recent USA TODAY report.  And while the Biden administration extended the length of the COVID emergency declaration, that still might not help people with years left to serve.   

The administration could get into a legal back-and-forth over the interpretation of the CARES Act.  But a simpler path would be for President Joe Biden to grant clemency to those on home confinement who pose no threat to public safety.  Reviewing the cases will be another step toward reducing unnecessary incarceration in America, which imprisons more people than any other democratic country with no added benefit to public safety.  

The two of us experienced the justice system, and clemency in particular, up close.  One of us worked as a senior adviser to former President Donald Trump on criminal justice and other policy issues.  The other served nearly 22 years in prison for a first-time, nonviolent drug offense before returning home after Trump granted clemency, and later a pardon.  Through these experiences, we have come to know people from diverse backgrounds who have made mistakes, but still have much to offer their families and our society. That is what we are seeing with many of the individuals under home confinement due to COVID-19....

To prevent individuals like these from being sent back to prison, a congressional coalition wrote a letter to Biden, urging him to review their cases for clemency.  The letter notes that the CARES Act did not require individuals on home confinement be sent back to prison, and that the Justice Department can modify the guidance issued by the last administration.  But clemency would allow rehabilitated individuals to move on with their lives rather than serving home detention for the rest of their sentences.   

Clemency should be carefully and fairly considered.  But all the people under home confinement were released because they were determined to be safe, making them strong candidates.  The moral issue goes beyond these 4,500 Americans.  In recent years, a diverse coalition from across the political spectrum has united for criminal justice reforms. Trump signed the bipartisan First Step Act in 2018, reducing some excessive sentences and creating more opportunities for rehabilitation.  

Biden ran on a platform to build on these criminal justice reforms. As he said in a proclamation commemorating Second Chance Month, “We lift up all those who, having made mistakes, are committed to rejoining society and making meaningful contributions.”  Biden should now extend that commitment to people under home confinement.  Reviewing these cases for clemency will not only help transform the lives of thousands of Americans, but also continue the momentum toward a more sensible and fair criminal justice system. 

Some prior recent related posts:

May 7, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, May 06, 2021

Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption

USA Today has this lengthy new piece highlighting the administration of home confinement in the federal system during the pandemic and the worries about a Justice Department memo which could return offenders to prison. I recommend the piece in full, which is headlined "Inmates sent home during COVID-19 got jobs, started school. Now, they face possible return to prison." Here are some excerpts:

In the weeks and months since he was sent home, RJ Edwards found a job, bought a car, got an apartment for him and his mother and started working toward a bachelor’s degree in computer science....

Edwards, 37, is among the more than 24,000 nonviolent federal prisoners who have been allowed to serve their sentences at home to slow the spread of COVID-19 inside prisons. But a Justice Department memo issued in the final days of the Trump administration says inmates whose sentences will extend beyond the pandemic must be brought back to prison.

Advocates urged the Justice Department to rescind the memo, which was issued by the agency's Office of Legal Counsel. They say it defeats the whole idea of rehabilitation and contradicts President Joe Biden's campaign promise to allow people with criminal pasts to redeem themselves. "They let us go, and we reintegrate, and then it feels like nothing matters. All the hard work you put in, it doesn’t matter. We’re just a number to them," said Edwards, who has five years left to serve.

During a congressional hearing, Sen. Chuck Grassley, R-Iowa, raised concerns about sending people back to prison, especially those who have been following the rules. Of the 24,000 prisoners who were allowed to go home, 151 – less than 1% – have violated the terms of their home confinement and three have been arrested for new crimes. "This highlights how effective home confinement can be," Grassley said....

Reincarcerating people who, for the past year, have been law-abiding would disrupt their rehabilitation and would do little to improve public safety, according to a letter more than two dozen groups sent to Attorney General Merrick Garland last month.  "Establishing community ties and deepening family connections are known to be significant positive factors for reducing recidivism," according to the letter. "Disrupting that process would mean disrupting safe re-integration into society and damaging networks that are vital to improving public safety."

Keeping people behind bars is also costly.  In 2018, the annual cost of housing just one federal prisoner was about $37,000 or $102 per day....

In the past year since they were sent home, the majority of these inmates have finished their sentences or have met the criteria to stay on home confinement.  As of mid-April, 4,500 inmates on home confinement would not have qualified if not for the pandemic, although many of them are likely to meet the criteria in the next months.  About 2,400 have more than a year left in their sentence, [BOP Director Michael] Carvajal told lawmakers.

A little more than 300 have five years left to serve.  That includes Edwards, who was sentenced to 17 years for wire fraud.  He was sent home in July.  By August, he found a job.

Prior related post:

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

Tuesday, May 04, 2021

New federal defender laments BOP's response to COVID and the FIRST STEP Act

The Federal Public and Community Defenders sent this new letter today to Senate Judiciary Committee leaders to follow up on the April 15 oversight hearing concerning the Federal Bureau of Prisons.  The 16-page letter covers a lot of ground, and here are excerpts:

For too long, DOJ and BOP have ignored congressional directives to prioritize the safety and rehabilitation of individuals in its custody, and left tools provided by Congress unused. These failures have been exacerbated by a culture that bends towards opacity and against accountability.  We urge Congress to intervene.  At minimum, it must strengthen and increase its oversight of DOJ and BOP to help ensure that federally incarcerated persons remain safe and that Congress’ vision for sentencing and prison reform is realized.  At best, it will enact legislation to smartly and swiftly lower prison populations and to move vulnerable individuals to a place of relative safety.

For the past 13 months, COVID-19 has torn through BOP facilities.  Meanwhile, BOP has failed to take the necessary steps — or to use available resources — to remediate the pandemic’s risk. Even now, despite the increased availability of vaccines across the country, COVID-19 remains a lifethreatening risk to those in BOP custody.  The death count of incarcerated individuals continues to mount, and conditions in federal detention facilities remain dire....

BOP and DOJ have failed to use the tools Congress gave them to safely lower prison populations.  The failure by DOJ and BOP to use tools to move vulnerable individuals to a place of relative safety — either by transferring them to home confinement or by seeking their release through compassionate release — has exacerbated the consequences of substandard medical treatment and care in BOP....

The First Step Act of 2018 (FSA) was intended to shorten certain federal prison sentences and to reorient the federal prison system away from pure punishment and towards rehabilitation.  The FSA’s ameliorative sentencing provisions have made significant strides: as of September 28, 2020, BOP has released 2,509 individuals who qualified for retroactive Fair Sentencing Act of 2010 relief. 

But since the FSA’s enactment, little has been done to advance the Act’s core prison reform: a system designed to reduce recidivism risk by offering individuals incentives in exchange for their participation in evidence-based programming and productive activities.  To create that system, the FSA directed the DOJ to dramatically expand programming in BOP facilities, and to develop a risk and needs assessment system (“RNAS”) that could determine “the recidivism risk of each prisoner” and “the type and amount of evidence-based recidivism reduction programming for each.”  Unfortunately, DOJ and BOP have failed to meet the programming or RNAS mandates and have undercut the promise of the FSA by promulgating restrictive policies behind closed doors....

Even prior to the pandemic, BOP had a long history of not providing sufficient programs.  Because the recidivism-reduction efforts of the FSA are meaningless without adequate programming, and in light of the IRC’s warning, we are deeply concerned that BOP does not have a plan of action to comply with the FSA requirement that BOP “provide all prisoners with the opportunity to actively participate in evidence-based recidivism reduction programs or productive activities according to their specific criminogenic needs, throughout their entire term of incarceration.”  BOP’s past performance, with inconsistent access and quality across institutions, makes it difficult to have confidence that BOP will meet its statutory obligations in this regard.  We hope that Congress will continue to closely oversee BOP’s efforts on this front, and to appropriate sufficient funding to support adequate programming.

May 4, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Notable NY politician gets furlough from BOP as he is "considered for home confinement"

When I saw the headline of this new New York Post piece, "Sheldon Silver released early on furlough after less than a year in prison," I thought the paper was misusing a term because furloughs from federal prison seem extraordinarily rare. But the story explains it has the right term:

Disgraced former New York Assembly Speaker Sheldon Silver has been sprung from federal prison early on furlough — while he awaits a decision from the agency on whether he can serve out the remainder of his term in home confinement, a report said Tuesday.

Silver — who has served less than a year of his 6 1/2-year sentence — was cut loose from Otisville Prison, in Orange County, New York, and released to his home while awaiting the decision, a source familiar with the matter told the Associated Press.

The 77-year-old crooked former pol was released under DOJ’s expanded powers to grant inmates release amid the coronavirus pandemic, according to the report. In a statement, the Bureau of Prisons said Silver is still “designated” to Otisville Prison, but added that it has the power to transfer inmates to their home on furlough.

“We can share that the Bureau of Prisons (BOP) has authority to transfer inmates to their home on furlough for periods of time while they may continue to be considered for home confinement designation,” a spokesperson said.

The BOP recently notified prosecutors in the Southern District of New York that it was considering cutting Silver loose on home confinement, a spokesperson for the district told The Post. n an email response sent yesterday, the prosecutor’s office — which secured a guilty verdict against Silver for corruption-related crimes during his run as an Albany power broker — stressed that it ardently opposes the move, the spokesperson said.

In a memo last year, former Attorney General Bill Barr gave the director of BOP expanded discretion to release vulnerable inmates from federal lockups amid the pandemic. BOP officials need to take into account a host of factors when determining if an inmate qualifies for home confinement, including “age and vulnerability of the inmate to COVID-19,” according to the memo. In addition, a BOP medical official is supposed to sign off on home confinement releases based on risk factors for a specific inmate, according to the memo....

Silver was sentenced last summer after avoiding lockup for more than five years after he was first convicted. At his sentencing, Judge Valerie Caproni admonished the crooked politician, who was convicted of illegally using his office to benefit two real estate developers in exchange for cash.

“This was corruption pure and simple,” Judge Caproni told the disgraced ex-speaker, whom she had already sentenced twice. “The time, however, has now come for Mr. Silver to pay the piper,” Caproni added.

Because there is always much mystery around the working of the BOP, I have no notion of whether any lower-profile prisoners might get similar treatment.

May 4, 2021 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, White-collar sentencing, Who Sentences | Permalink | Comments (3)

Saturday, April 24, 2021

"Housing the Decarcerated"

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

The coronavirus pandemic exposed an issue at the intersection of the public health, carceral and housing crises — the lack of housing for the recently decarcerated.  Early in the pandemic calls came to release incarcerated persons and cease arrests in light of the risks posed by failing to be able to socially distance while incarcerated.  At the same time, the pandemic forced a national conversation about the sheer number of unhoused persons in our country.  The pandemic created an emergent argument for both broad scale decarceration and publicly funded housing.  The practical process of securing housing for the recently decarcerated, however, is fraught because of what is described in this article as the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court case, HUD v. Rucker.

The culture of exclusion is arbitrated by local housing authorities and works on three levels — eligibility, enforcement and set asides.  As a result, formerly incarcerated persons are often rejected outright during the application process.  In addition, persons who live in subsidized housing and are alleged to be engaged in or associated with anyone who is alleged to have participated in criminal conduct can be evicted making subsidized housing itself a pipeline into the prison industrial complex. 

This Article seeks to motivate a pathway towards housing the decarcerated by ending the culture of exclusion.  In Part I, the article briefly updates the status of the prison abolition and right to housing movements. Part II builds on the idea that stable housing for formerly incarcerated persons is essential to the prison abolition movement’s success by reviewing summary results from pilot programs in New York, Washington and Michigan.  Part III suggests that “one strike” policies, have created a broader “culture of exclusion,” which the Supreme Court validated in Rucker, further burdening the process of reentry for the recently decarcerated.  Finally, Part IV, prescribes policy changes that are essential to housing the decarcerated even beyond repealing the ADA and overturning Rucker, including transcending the narrative of innocence, directing PHA discretion to admit not deny and utilizing civil rights laws to equalize voucher holders.

April 24, 2021 in Collateral consequences, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Friday, April 23, 2021

FAMM urges federal BOP to publish memos with home confinement criteria

In this post a few days ago, I asked "Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement?". I still do not have an answer to this question, but I see that Kevin Ring at FAMM is hoping to get even more from the BOP via this new letter that starts and ends this way:

I am writing to ask that you publish on the Bureau of Prisons’ (BOP) website any and all memos sent to wardens about the eligibility critera for CARES Act home confinement.  The BOP’s failure to do so has created uneccessary confusion and frustration for incarcerated people and their families....

Surviving the past 13 months during the spread of COVID-19 has been extraordinarily difficult for people in prison and their loved ones at home.  Please do not add to their hardship by keeping them in the dark about recent and important BOP policy changes that might affect them.

Prior related post:

April 23, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

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 (7)

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)