Tuesday, September 13, 2022

"Pandemic Rules: COVID-19 and the Prison Litigation Reform Act's Exhaustion Requirement"

The title of post is the title of this new paper authored by Margo Schlanger and Betsy Ginsberg now available via SSRN. Here is its abstract:

For over twenty-five years, the Prison Litigation Reform Act (PLRA) has undermined the constitutional rights of incarcerated people.  For people behind bars and their allies, the PLRA makes civil rights cases harder to bring and harder to win — regardless of merit.  We have seen the result in the wave of litigation relating to the COVID-19 pandemic.  Beginning March 2020, incarcerated people facing a high risk of infection because of their incarceration, and a high risk of harm because of their medical status, began to bring lawsuits seeking changes to the policies and practices augmenting the danger to them.  Time and again, courts have thrown cases out based on the PLRA —especially, on the PLRA’s instruction to dismiss civil rights cases unless “such administrative remedies as are available are exhausted” (that is, unless the incarcerated plaintiff worked the complaint all the way through the prison’s or jail’s grievance system).

The pandemic has exposed a particularly egregious problem: the mismatch between a mandate to use internal grievance systems and those grievance systems’ systemic inability to address emergency situations. Here, we propose three solutions.  First, incarcerated plaintiffs should be allowed to proceed with their federal lawsuits if the press of an emergency renders a prison’s or jail’s grievance system “unavailable” because it is unable to process their complaint quickly enough to offer any relief.  As we describe below, this is already the right answer under existing case law — but so far, many district courts have declined to follow this path.  The second proposal focuses on possible actions at the state and local levels, because it is corrections agencies, not the PLRA, that determine what procedures must be exhausted or whether the defense is raised in litigation.  Any prison or jail unhappy with allowing incarcerated plaintiffs to proceed in federal court or amenable to allowing them to access court quickly in emergency circumstances could implement working emergency grievance systems.  We provide some parameters to guide any such system. In addition, state legislatures could enact legislation forfeiting or waiving the exhaustion defense in cases seeking emergency relief.  The third solution addresses the reluctance of district judges to excuse non-exhaustion when they should; we propose that the PLRA be amended to pretermit the “availability” inquiry by eliminating the statutory exhaustion requirement in emergency situations.  We offer suggested legislative text to accomplish this end.

September 13, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Friday, August 26, 2022

More notable details on the remarkable success of those released from federal prison under CARES Act

In this post on Monday, I flagged the NPR article which reported the remarkable fact that "only 17 people out of more than 11,000 who were released [early from federal prison under the CARES Act] committed new crimes, mostly drug related ones, while they were out."  Marshall Project reporter Keri Blakinger followed up this piece, as she explained on Twitter, by asking the federal Bureau of Prisons what those crimes exactly were.  BOP reported that 10 of the 17 were "drug related" and that only one of the 17 involved a violent offense ("aggravated assault"). 

In other words, depending on just how one wants to account for these data, it could be fair to say those released early from federal prison early under the  CARES Act had a better than 99.9% or even better than a 99.99% recidivism (or lack of recidivism) success rate.  Within a criminal justice system that often has all sort of folks lamenting all sorts of failures from all sorts of perspectives, I am so very eager to really lean into celebrating this extraordinary success.    

Prior related posts:

August 26, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

Thursday, August 25, 2022

Bureau of Justice Statistics releases big report on COVID's impact on prisons during pandemic's first year

As detailed on this BJS webpage, this morning the Bureau of Justice Statistics released this 45-page "Special Report" titled "Impact of COVID-19 on State and Federal Prisons, March 2020–February 2021."  The BJS webpage has a press release, a summary and this overview:

Description

This report provides details on the effects of COVID-19 on state and federal prisons from March 2020 to February 2021. The report presents data related to COVID-19 tests, infections, deaths, and vaccinations.  It also provides statistics on admissions to and releases, including expedited releases, from state and federal prisons during the first year of the COVID-19 pandemic.

Highlights

  • BJS’s survey to measure the impact of COVID-19 on U.S. prisons from the end of February 2020 to the end of February 2021 found that the number of persons in the custody of state, federal, or privately operated prisons under state or federal contract decreased more than 16%.
  • The prison population declined by 157,500 persons during the first 6 months of the COVID-19 study period through the end of August 2020, and by 58,300 in the 6 months through the end of February 2021.
  • Twenty-four states released a total of 37,700 persons from prison on an expedited basis (earlier than scheduled) during the COVID-19 study period.
  • State and federal prisons had a crude mortality rate (unadjusted for sex, race or ethnicity, or age) of 1.5 COVID-19-related deaths per 1,000 prisoners from the end of February 2020 to the end of February 2021.
  • From the end of February 2020 to the end of February 2021, a total of 196 correctional staff in state and federal prisons died as a result of COVID-19.

August 25, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, July 27, 2022

Great new Robina Institute report on "Examining Prison Releases in Response to COVID"

I was so pleased to see this week that the Robina Institute of Criminal Law and Criminal Justice has this great big new report titled "Examining Prison Releases in Response to COVID: Lessons Learned for Reducing the Effects of Mass Incarceration."  The full 86-page report is a must read and it so rich and intricate, I can only here excerpt a portion of the executive summary:

In response to the global pandemic in 2020, states and the federal government began to make non-routine releases from prison in order to reduce prison populations to allow for social distancing in prison facilities. This report is aimed at describing where such prison releases occurred, the legal mechanisms used to achieve these releases, and the factors within jurisdictions that made non-routine prison releases more or less likely to occur. We write this report, not to examine the national response to the pandemic, but to better understand when and how extraordinary measures may be used to effect prison release, and to determine whether there are lessons from this experience that can be applied to reducing the effects of mass incarceration.

Prevalence of Release:

  • We estimate that a total of 80,658 people were released from prisons in 35 jurisdictions (34 states and the federal prison system) due to COVID-related policies, which was equivalent to about 5-1/2% of the total state and federal prison population in 2019.
  • Most COVID-related releases were quite modest, amounting to the equivalent of less than 10% of the 2019 prison populations in 27 of the 35 jurisdictions in which releases occurred (Figure 2).

Legal Mechanisms:

  • The legal mechanisms used most frequently to release people from prison during the pandemic were parole (11 jurisdictions), compassionate release (10 instances in 9 jurisdictions), home confinement (8 jurisdictions), commutation (7 jurisdictions), and good time or earned time credits (6 jurisdictions) (Figure 3).

Criteria for Release:

  • Type of crime, COVID health risk, and time left to serve on one’s sentence were the criteria most frequently used — either alone or in combination — to determine eligibility for release due to COVID-related policies.
  • Most release groups (39 of 73) required that a person had to have been convicted of a non-violent offense (Figure 4).
  • COVID health risks — addressing both medical vulnerability and age — were used as criteria in 38 of 73 release groups (Figure 6).
  • Most release groups (37 of 73) required that a person have a short time left to serve on their sentence (Figure 7). Though the amount of time varied from 30 days in New Mexico to 5 years in Kentucky, the average was 9 months, and the most frequently used time period was 12 months.

Political and Structural Influences:

  • Gubernatorial leadership played a larger role in whether the jurisdictions made releases, with fewer jurisdictions with Republican leadership making releases. However, determinacy may have affected how many releases were possible, with indeterminate jurisdictions making larger releases than determinate jurisdictions regardless of political leadership.
  • All but three Democratic-led jurisdictions (21 of 24) made COVID-related prison releases while only about half of Republic-led jurisdictions (14 of 27) did so (Table 4).
  • Nearly all of the jurisdictions (7 of 8) with the largest COVID-related releases — those greater than 10% of the 2019 prison population — were indeterminate in structure.

July 27, 2022 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, July 21, 2022

Spotlighting legal fight over revocation of CARES Act releases to home confinement

USA Today has this lengthy article discussing the revocation of home confinement for hundreds of persons released under the CARES Act. The piece is headlined "They were released from prison because of COVID. Their freedom didn't last long." Here are excerpts:

[Eva] Cardoza and two other women are at the center of federal lawsuits saying that people released from prison because of COVID-19 are now being sent back over minor infractions, such as not picking up a call from staffers overseeing their home confinement. The lawsuits come as the Bureau of Prisons is facing scrutiny for re-incarcerating people in home confinement over minor offenses, even as the agency has increasingly relied on the program to help reduce recidivism and prison populations....

During the pandemic, Cardoza was one of more than 43,000 people nationwide who were released from prison to home confinement during the COVID-19 pandemic. The BOP website said around 50,000 people incarcerated at its facilities had recovered from coronavirus and around 300 had died.

The massive CARES ACT granted then-Attorney General Bill Barr the option to broaden the use of the home confinement program, which had previously only been allowed to be used at the very end of a person's sentence. Barr opted to allow thousands of people to receive home confinement much earlier, shaving off years from a person's sentence in some cases....

Last year, more than 3,000 people were released to CARES ACT home confinement, according to a records request put in by the Prison Policy Initiative, a nonpartisan public think tank.

Those who were released to home confinement were told they must follow specific rules. They have to keep re-entry professionals — specialists who are often working for companies contracted by the BOP — updated on their whereabouts. They often wear electronic monitoring and receive special permission to visit stores or other locations. They can go to work or school. But if someone on home confinement was found to have an infraction, such as missing a check-in or a failed drug test, they could be returned to prison.

The Bureau of Prisons told USA TODAY that 407 people had their home confinement revoked. Of those, 212 were returned due to misconduct in violation of program rules, such as alcohol use and drug use; 69 were returned after an escape, such as an unauthorized absence from custody; and 11 were for new criminal conduct and other violations.

The Bureau of Prison's Inmate Discipline Program requires several steps before returning a person in home confinement to prison, including a disciplinary hearing, written notice of the allegations and the ability to present evidence. The BOP told USA TODAY its Administrative Remedy Program allows people to have "any issue related to their incarceration formally reviewed by high-level" officials.

But lawyers involved in the lawsuits said their clients did not have hearings, written notice or the ability to present evidence. They said their pleas for review were ignored and noted that the cumbersome, months-long process can lead to collateral damage, such as a child going back into foster care while the parent is in prison.

July 21, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, May 23, 2022

Notable (pandemic-impacted) justice data in "Federal Justice Statistics, 2020"

The Bureau of Justice Statistics has this new publication full of notable federal statistics under the title ""Federal Justice Statistics, 2020."  Here is how the 30-page document is briefly introduced:

Federal arrests declined 42% from fiscal year (FY) 2019 to FY 2020, reaching their lowest level since FY 2001. Of the 346,681 persons under federal correctional control at fiscal year-end 2020, about 56% were in secure confinement and 44% were on community supervision. This was a decline from fiscal year-end 2010, when 401,198 persons were under federal correctional control.

This report describes cases processed by the federal criminal justice system. Data are from the Federal Justice Statistics Program, which collects, standardizes, and reports on administrative data received from six federal justice agencies: the U.S. Marshals Service, Drug Enforcement Administration, Administrative Office of the U.S. Courts (AOUSC), Executive Office for U.S. Attorneys, Federal Bureau of Prisons (BOP), and U.S. Sentencing Commission.

There is way too much data in this document to summarize, though the impact of the pandemic is clear in a lot of the 2020 data points. Here are some sentencing/prison passages of note concerning fiscal year 2020 data:

Convicted males (69%) were sentenced to prison more often than convicted females (58%). Twenty-one percent of convicted females received a probation-only sentence, compared to 6% of convicted males. Convicted black defendants (85%) were the most likely to receive a prison sentence, followed by convicted American Indian or Alaska Native (79%); white (76%); Asian, Native Hawaiian, or Other Pacific Islander (67%); and Hispanic (60%) defendants.  Among those sentenced to prison, white and black defendants were both sentenced to a median of 60 months....

In FY 2020, a total of 36,914 federally sentenced persons were admitted to federal prison. Of these, 28,747 persons entered federal prison on U.S. district court commitments.  Another 8,167 persons were returned to federal prison for violating conditions of probation, parole, or supervised release or were admitted to federal prison for any reason other than a U.S. district court commitment.  Thirty-seven percent (21,972) fewer admissions occurred in FY 2020 than in FY 2019. (See Federal Justice Statistics, 2019 (NCJ 301158, BJS, October 2021).)  In FY 2020, a total of 13,619 persons entered federal prison for a drug offense, most of whom (10,415 or 76%) had been sentenced to more than 1 year.

A total of 59,044 persons were released from federal prison in FY 2020.  Most (45,694) were being released for the first time since their U.S. district court commitment.  Ten percent (6,537) fewer releases occurred in 2020 than in 2019. (See Federal Justice Statistics, 2019 (NCJ 301158, BJS, October 2021).)  There were 22,130 fewer persons in federal prison at the end of FY 2020 (September 30, 2020) than at the start of FY 2020 (October 1, 2019), a much larger drop than in previous years due in part to the federal response to the coronavirus pandemic.  The last time the year-end federal prison population was this low (132,291) was in 2000 (129,329).  From the start to the end of FY 2020, 8,039 fewer persons were in prison for a drug offense and 5,492 fewer were in prison for an immigration offense.

May 23, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, May 17, 2022

"Unequal Treatment: (In)compassionate Release from Federal Prison in the Context of the COVID-19 Pandemic and Vaccine"

The title of this post is the title of this new piece now available via SSRN authored by Mariah Haley. Here is its abstract:

COVID-19, the disease caused by SARS-CoV-2, has wreaked havoc globally since it was first discovered in December 2019.  In the United States, many federal prisons experienced outbreaks of the virus, leading to both severe illness and death.  Almost as soon as the pandemic began in the United States, people in prison — especially those with preexisting conditions — turned to the statutory mechanism known as “compassionate release” to request early release from prison based on the “extraordinary and compelling” nature of the pandemic.

This Note examines how federal courts have considered compassionate release requests during the pandemic.  The Note further explores the disparate outcomes resulting from the vast judicial discretion within the compassionate release space.  While no two compassionate release cases are the same, with cases very fact-intensive, this Note argues that the current system results in inequitable geographical-based outcomes.  In concluding, this Note calls on the United States Sentencing Commission to offer guidance to federal courts on how to approach compassionate release requests in the context of the First Step Act and the ongoing COVID-19 pandemic.

May 17, 2022 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)

Monday, May 09, 2022

US Sentencing Commission releases latest detailed "Compassionate Release Data Report"

Cr-line-chart-2022_cropVia email, I got word that the US Sentencing Commission today published this updated compassionate release data report.  Here is the very brief accounting of the report from the email (as well as a reprinting of the graphic that appears as Figure 1 of the report):

With the advent of the COVID-19 pandemic, the courts received thousands of compassionate release motions, most filed by offenders.  This report provides an analysis of the compassionate release motions filed with the courts during the COVID-19 pandemic.

The Commission received the following information from the courts on motions decided during fiscal years 2020 and 2021 (October 1, 2019 – September 30, 2021):

  • 3,867 offenders were granted compassionate release. This represents 17.2% of motions.

  • 18,653 offenders were denied compassionate release. This represents 82.8% of motions.

There are lots and lots of interesting data points throughout this data report, including data highlighting that people sentenced long ago (and before the guidelines became advisory) had significantly higher success in getting a sentence reduction.  Also interesting is the data detailing the reasons that courts provided for granting these sentencing reduction motions, which suggests some small evolution in stated reasons from FY 2020 to FY 2021.

But most striking data are those details the dramatic variations in grant rates from various districts. As but one of many remarkable examples, consider the three districts of Georgia: the Southern District of Georgia granted only 5 out of 248 sentence reduction motions for a 2% grant rate; the Middle District of Georgia granted only 4 out of 217 sentence reduction motions for a 1.8% grant rate; but the Northern District of Georgia granted 76 out of 170 sentence reduction motions for a 44.7% grant rate.  One could also tell an island variation story, and no motions were granted (out of only six) in the Virgin Island district; but that lovely island district of Puerto Rico saw 79.2% of motions (19 of 24) granted. 

Remarkably, the District of Maryland — with a total of 211 sentencing reduction motions granted (though "only" a grant rate of 32.7% with 646 motions) — granted more of these motions that all the courts of the Fifth Circuit!  (The Fifth Circuit had the lower total circuit grant rate of 9.3% with only 204 motions granted out of 2,197 total brought.) 

May 9, 2022 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, March 25, 2022

Prison Policy Initiative provides terrific accounting of COVID pandemic's early impact on prison and jail populations

Wendy Sawyer at the Prison Policy Initiative has authored this great new report that effectively explores the various forces that contributed to declining incarcerated populations in the early COVID period. The report, which merits a full and careful read, is fully titled "Untangling why prison & jail populations dropped early in the pandemic: Reductions in prison and jail populations were due to COVID-related slowdowns in the gears of the criminal legal system. Without intentional action, these reductions will be erased." Here is how it gets started (with links from the original):

Last week, we released the latest edition of our Mass Incarceration: The Whole Pie report, in which we showed about 1.9 million people locked up by various U.S. systems of confinement, according to the most recent data available.  Out of context, that number would be cause for celebration among those of us fighting to end mass incarceration: it’s almost 400,000 fewer people than were locked up before the pandemic.  Unfortunately, this reduction in the incarcerated population is unlikely to last very long without more lasting policy change.  In fact, fear-mongering about upticks in certain specific crimes may make this work even harder and lead to policy changes that make mass incarceration even more intractable.

It’s important, therefore, to understand what changes — intentional or not — led to the prison and jail population drops in 2020 and 2021. This briefing offers the context needed to temper expectations about sustaining those population drops and to maintain focus on the policy changes needed to permanently reduce the use of confinement. Without those needed changes, we can expect prison and jail populations to return to pre-pandemic “normal” (extreme by any other measure) as the criminal legal system returns to “business as usual.”

The changes that have had the most impact on incarceration since the start of the pandemic include:

  • 24% fewer arrests in 2020 compared to 2019, largely due to changes in everyday behaviors under widespread “stay at home orders,” as well as short-term guidance issued by some police departments to limit unnecessary contact and jail bookings;
  • 21% fewer criminal cases filed in state courts in 2020 compared to 2019 — the result of fewer arrests and changes in some prosecutorial practices;
  • 36% fewer criminal cases resolved in state courts from 2019 to 2020, attributable to court closures, operational changes, and delays in case processing;
  • A 17 percentage point net drop in criminal case clearance rates in state courts, indicating a growing backlog of pending cases;
  • 40% fewer admissions to state and federal prisons in 2020 compared to 2019, largely the result of court slowdowns but also partly due to the refusal of some prisons to accept transfers from local jails to prevent the spread of the virus.

March 25, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, March 10, 2022

Vera Institute of Justice provides very latest prison data with "People in Prison in Winter 2021-2022"

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.  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.  Vera's latest effort is "People in Prison in Winter 2021-22," and this press release provide context and an overview: 

Despite continued calls to release people from prisons in response to COVID-19, the total number of people in prisons declined by a mere 1.1% between December 2020 and December 2021 according to People in Prison in Winter 2021-2022, a report released today by the Vera Institute of Justice.  The winter iteration of this report highlights that, in contrast to the uniform declines of 2020, the number of people incarcerated in two out of five of the nation’s prison systems are trending upward....

While prison incarceration remains 16 percent lower than pre-pandemic levels, data shows a troubling reversal in many states.  By year-end 2021, 19 states and the federal government increased the number of people incarcerated in prisons.  Two states with large declines in their prison populations in 2020 had the largest increases in 2021 – North Dakota’s prison population declined 21.9 percent in 2020 but increased 20.6 percent in 2021, and West Virginia saw a 43.6 percent decline in 2020, then 12.9 percent growth in 2021.  The nation has not seen this kind of growth in decades: The single-year increase in North Dakota is higher than any state’s single-year increase since 1997, and the number of states with increases of more than 5 percent is the largest since 1999.

In contrast, other states continued to decrease their prison populations – Washington State’s total prison population declined 14 percent in 2021, after declining 18 percent the previous year. New York was down 10.7 percent after declining 20.8 percent in 2020, Arizona was down 10.2 percent in 2021 after a 11.1 percent decrease in 2020.

The overall number of people incarcerated by federal agencies also rose 5 percent between December 2020 and December 2021.  The number of people in Bureau of Prisons (BOP) custody rose 3.6 percent, the number of people detained for the United States Marshals Service (USMS) rose 1 percent, and Immigration and Customs Enforcement (ICE) detention jumped 33.7 percent.

“While some states made policy choices to reduce prison populations during the pandemic, the data show unmistakable backsliding by many U.S. states and the federal government,” wrote Jacob Kang-Brown, Senior Research Associate for Vera and author of the report. “The best evidence demonstrates that releasing more people from prison can help mitigate the public health harms of incarceration without jeopardizing public safety.”

March 10, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

US Sentencing Commission releases big new report titled "Compassionate Release: The Impact of the First Step Act & COVID-19 Pandemic"

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The US Sentencing Commission indicated that is was working on a big new compassionate release report, and I am pleased to see from my email inbox that it was released today.  Here is the text about the report that was in the email I received:

The United States Sentencing Commission (“Commission”) today released a new report that examines trends in compassionate release during fiscal year 2020 in light of the enactment of the First Step Act of 2018, and the COVID-19 pandemic.

Senior U.S. District Judge Charles R. Breyer, Acting Chair of the Commission, stated “I am pleased that the Commission has issued this comprehensive report on compassionate release trends in fiscal year 2020. This report builds on the Commission’s significant work in this area, including a report on the first year of implementation of the First Step Act and the Commission’s previously released quarterly data reports analyzing motions for compassionate release.”

Acting Chair Breyer noted, “Prior to the enactment of the First Step Act, only the Director of the Bureau of Prisons could file compassionate release motions. The First Step Act enables defendants to file these motions directly in federal court after exhausting administrative requirements. These changes, coupled with the pandemic, resulted predictably in a dramatic increase in both motions for and grants of compassionate release.”

According to the report, in fiscal year 2020, courts decided 7,014 compassionate release motions, granting compassionate release to one-quarter (25.7%) of those offenders. The number of offenders granted relief increased more than twelvefold compared to 2019 — the year immediately following passage of the First Step Act. Courts cited health risks associated with COVID-19 as at least one reason for relief in 71.5% of grants.

“Unfortunately, in the intervening time between enactment of the First Step Act and the COVID-19 pandemic, the Commission lost its quorum, rendering it unable to amend the compassionate release policy statement. The absence of this guidance has resulted in a lack of uniformity in how compassionate release motions are considered and applied across the country,” said Judge Breyer. The Report identified considerable variability in the application of compassionate release across the country among those offenders in the study group—ranging from a grant-rate high of 47.5% in the First Circuit to a low of 13.7% in the Fifth Circuit.

“This report underscores why it is crucial for the Commission to regain a quorum to again have the ability to address important policy issues in the criminal justice system, such as compassionate release,” added Breyer. “Nevertheless, I am proud of the extensive work the Commission did to compile this insightful data. I believe this report will provide valuable information to lawmakers, the Courts, advocacy organizations, and the American public.”

This full USSC report, available here, runs 86 pages and I hope to find time in the coming days to highlight a variety of findings from the report. The USSC has created this two-page infographic about the report with a few data highlights, and this USSC webpage provides an overview and an extended list of "key findings."

Though I am VERY excited to dig into this report and look forward to exploring what lessons these data may have for any possible revision of guidelines and practices related to compassionate release, I am a bit disappointed that this new USSC report only covers developments and data through September 2020.  Though these data capture the many developments through the first part of the COVID pandemic, there still had then not been any significant circuit rulings about the operation of compassionate release and other USSC data runs have detailed that there were an additional 10,000 motions and about 1500 addition compassionate release grants in just the six months after September 2020.  I fully understand why the USSC could not do this kind of detailed report on all cases up to the present, but everyone should not lose sight of the fact that this new report is already somewhat dated because it only captures data through September 2020.

March 10, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, March 08, 2022

A deep dive into federal prison struggles in response to the COVID pandemic

NPR has this lengthy new piece headlined "As COVID spread in federal prisons, many at-risk inmates tried and failed to get out," that effectively chronicles some of the ineffectiveness of the federal response as COVID worked its way through its massive prison systems.  Here are just a few snippets from the piece:

As of early March, officials at the Federal Bureau of Prisons (BOP) say 287 federal inmates have died from COVID-19, a count that does not include deaths in privately managed prisons.  Bureau officials have been saying since the beginning of the pandemic that they have a plan to keep the situation under control, but an NPR analysis of federal prison death records suggests a far different story.

The federal prison system has seen a significant rise in deaths during the pandemic years. In 2020, the death rate in prisons run by the BOP was 50% higher than the five years before the pandemic.  Last year, it was 20% higher, according to the NPR analysis of age-adjusted death rates.

Of those who died from COVID-19, nearly all were elderly or had a medical condition that put them at a higher risk of dying from the virus, NPR found.  Many of them seemed to sense their fate — and had tried to get out.  And those who made their case in court often faced a slow and complicated process that was unable to meet the pace of a rapidly spreading virus....

It's difficult to get a full view of how the federal prison system has responded to the pandemic at each of its 122 prisons nationwide, but NPR spoke with several current bureau employees who described issues that went against that plan, including the transfer of COVID-positive inmates between prisons and units.  "Our agency is reactive and not proactive. You know, they waited until it got out of hand and then tried to fix things, but by then it was too late," said Aaron McGlothin, a warehouse worker foreman and local union president at the federal prison in Mendota, Calif....

The determination for who can be sent home — and who cannot — is solely up to the BOP, and by the middle of November 2020, individual wardens became the final authority.  After [then Attorney General] Barr urged the use of home confinement, the BOP added its own criteria to the attorney general's list.

Home confinement existed before the pandemic, for certain inmates in the final six months or 10% of their sentence, whichever was less. And those inmates kept going home in this way during the pandemic.  As of early March of this year, more than 38,000 people had been released to home confinement during the pandemic. Of those, about 9,000 — or about 6% of the current federal prison population — were transferred directly because of the CARES Act.

It's unclear how many more people might have been eligible for CARES Act home confinement yet were not released. "CARES Act home confinement is, frankly, a black box," [Allison] Guernsey, of the University of Iowa, said. But she feels certain "we could have been releasing so many more people during the pandemic and we just chose not to."

March 8, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, February 23, 2022

Taking a look at compassionate release record of one SCOTUS short-lister

I recall seeing a few weeks ago a notable Twitter thread about the compassionate release record of Judge J. Michelle Childs, who is on Prez Biden's SCORUS short list.  I see now that Matthew Ahn has turned his analysis into this new Inquest piece, headlined "No Compassion: Judge Michelle Childs’ many denials of compassionate release signal a carceralism that should have no place on the Supreme Court." I recommend the piece in full, and here are portions:

[R]equests for compassionate release in recent years have required judges to confront the horrors of pandemic incarceration and the added harshness of a sentence that usually did not contemplate COVID-19.  And judges have wide discretion to reduce a sentence; the reduced sentence is not subject to the harsh mandatory minimums enshrined in federal law.  Despite this, judges often sidestep the question and conclude that things haven’t changed enough since sentencing, either in the urgency of an inmate’s situation or in the work they’ve done on themselves to grow despite that situation.  Even if an applicant is almost done serving their sentence or has been actively participating in prison programs for several years, the odds are long — only 18 percent of compassionate release motions were granted in 2020 and early 2021.

These low rates of compassion seem hard to square with the basic nature of a pandemic that has torn through prisons at rates far more dangerous than in the broader population. Even then, it’s hard to overturn denials of compassionate release on appeal, given the broad discretion the law affords trial judges.  Thus, a mixed record containing some grants and some denials of compassionate release might be tolerable if the judge is actually considering the arguments and agreeing to some reductions.  It’s harder to stomach if the judge isn’t granting any motions.    

Based on her 23 COVID-related compassionate release rulings available on Westlaw, Judge Childs falls into that latter category....

When I set out to examine Judge Childs’ record in this setting, I was not expecting every case she considered to end in compassionate release.  For many of them, her hands are tied because the applicant either hasn’t made the proper requests to the BOP prior to asking the judge, as the law requires, or hasn’t submitted any supporting information. Judge Childs’ denials in those cases are unsurprising to me.

But I did not expect to find nothing but denials.  And not just denials — Judge Childs has never, in any of these available decisions, ruled for anyone on either of the two steps. That’s unlike many other judges, who will often find extraordinary and compelling reasons but deny based on the § 3553 factors.  In other words, Judge Childs’ record is a genuine outlier that is especially punitive and carceral when it comes to evaluating requests for compassionate release.  And it’s not just that she is from South Carolina, either.  The grant rate in Judge Childs’ district is 18 percent, which is right at the national average.  She’s an outlier compared both to the country and her state.    

February 23, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (4)

Monday, February 14, 2022

Two former Attorneys General recap criminal justice challenges two years into the pandemic

Two notable former US Attorneys General, Alberto Gonzales and Loretta Lynch, who are co-chairs of the CCJ National Commission on COVID-19 and Criminal Justice. have this notable new Hill commentary under the headline "Omicron is creating new havoc in our criminal justice system."  The piece is worth a full read because it is not all doom and gloom, and here is how it starts:

Just over a year ago, a national commission we led put forth a sweeping set of solutions for a criminal justice system wracked by COVID-19.  Today, with the Omicron variant spreading nationwide, we believe those recommendations are more urgent than ever — and can help rebalance public health and safety to forge a better post-pandemic future.

In the months that have passed since the report from our National Commission on COVID-19 and Criminal Justice, many justice system leaders have continued to make laudable progress in mitigating the pandemic’s effects, using technology, innovation and their own talents to adapt and adjust policies and practices for the better. 

The Biden administration’s decision to allow thousands of nonviolent offenders released from federal prisons because of the COVID threat to remain on home confinement is one recent and sensible example, especially because many of those affected were near the end of their sentences.

In another low-profile but high-impact development, leaders in the nation’s probation and parole agencies tell us that the pandemic switch to mostly remote supervision has improved the human connection between officers and the hundreds of thousands of people they oversee, who, by and large, have not absconded as some had feared.  In many states, this is a positive change that’s here to stay.

Yet major problems persist across the criminal justice system, and in some ways have intensified.  Omicron is causing renewed disruptions, with detainees at New York’s Rikers Island jail protesting what they call dangerous conditions, and California prisons reporting a “staggering rise” in infections among employees.  Systemwide, prison and jail populations that had been safely reduced to contain the virus are rebounding, posing renewed risks to incarcerated people and staff.

And in our courts, operations have been slowed by crushing case backlogs.  In Fulton County, Ga., home of Atlanta, the number of backlogged cases surpassed 11,000 — in a state with a backlog of 206,000 — including approximately 600 murder cases awaiting trial.  In Seattle, a judge estimated that even excluding nonviolent cases, it would take 13 years to clear the logjam.

These and other ongoing challenges are clear signals that we must do more to meet this moment — and ensure our post-pandemic system is better equipped to balance health, safety and justice for all.

February 14, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, February 10, 2022

Prison Policy Initiative provides latest update on incarceration populations two years into the COVID pandemic

The folks at the Prison Policy Initiative always impress me with cutting-edge research and analysis in the form of "Briefings," and the latest report here provides a particularly interesting account what we know about prison and jail populations in the US two years into the pandemic.  The full briefing should be read in full, and the full title provide a bit of a summary of the themes: "State prisons and local jails appear indifferent to COVID outbreaks, refuse to depopulate dangerous facilities; While some prison systems and local jails have maintained historically low populations, others have returned to pre-pandemic levels, despite the ongoing dangers of COVID-19 and new, more transmissible variants."

I cannot readily summarize all the insights and data covered in this new PPI report, but here are excerpts (with links from the original):

In state and federal prisons, over 2,900 people have died of COVID-19, almost 476,000 people have been infected, and thousands of additional cases are linked to individual county jails. Even now, when more than 75% of people in the U.S. have received at least one dose of the vaccine, correctional staff are hesitant to get vaccinated or receive boosters, and prison systems are slow to roll out boosters to incarcerated people.  As the more contagious Omicron variant ravages parts of the nation and renders hospitals completely overrun, nearly three quarters of prisons are experiencing COVID-19 outbreaks; public health officials continue to recommend reducing prison populations as a primary method of risk reduction.  In fact, in October 2021, the American Public Health Association adopted a policy in support of decarceration as a public health matter and new research shows the detrimental effect of COVID-19 on all-cause mortality in state prisons.  Despite the clear need for smaller confined populations, the data show that with just a few exceptions, state and local authorities are allowing their prison and jail populations to return to dangerous, pre-pandemic levels.

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

Prisons

Even in states where prison populations have dropped, there are still too many people behind bars to accommodate social distancing, effective isolation and quarantine, and the increased health care needs of incarcerated people. For example, although California has reduced the state prison population by about 18% since the start of the pandemic, it has not been enough to prevent large COVID-19 outbreaks in the state’s prisons, and the prison system has witnessed a 300% increase in infections among incarcerated people over the past few weeks and a 212% increase in cases among staff.  In fact, as of December 15th, 2021, California’s prisons were still holding more people than they were designed for, at 113% of their design capacity (and up from 103% in January 2021).  Considering the continued overcrowding in the California prison system, it’s not surprising that the state is responsible for eight out of the ten largest COVID-19 prison clusters....

Many states’ prison populations are the lowest they’ve been in decades, but this is not because more people are being released from prisons; in fact, fewer people are. Data from 2020, recently released by the Bureau of Justice Statistics, shows that prisons nationwide released 10% fewer people in 2020 than in 2019. Instead, data suggest most of the population drops we’ve seen over the past 20 months are due to reduced prison admissions, not increasing releases....

Jails

Jail populations, like prison populations, are lower now than they were pre-pandemic. Initially, many local officials — including sheriffs, prosecutors, and judges — responded quickly to COVID-19 and reduced their jail populations. In a national sample of 415 county jails of varying sizes, almost all (98%) decreased their populations from March to May of 2020, resulting in an average change of a 33% population decrease across all 415 jails at the start of COVID-19. These population reductions came as the result of various policy changes, including police issuing citations in lieu of arrests, prosecutors declining to charge people for “low-level offenses,” courts reducing cash bail amounts, and jail administrators releasing people detained pretrial or those serving short sentences for “nonviolent” offenses.

But those early-pandemic, common-sense policy changes didn’t last long. Between May 2020 and February 2021, the populations of 83% of the jails in our sample increased, reversing course from the earlier months of the pandemic. As of December 2021, 28% of the jails in our sample have higher populations now than they did in March 2020.  Overall, the average population change across these 415 jails from March 2020 to December 2021 has diminished to only a 10% decrease, while the average population change from July 2021 to December 2021 has dropped to 0%, suggesting that the early reforms instituted to mitigate COVID-19 have largely been abandoned.

February 10, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Monday, February 07, 2022

Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort

Data from the US Sentencing Commission indicates that roughly 1 in 4 persons who serve time in federal prison gets rearrested within the first two years after release (see Table 2 in this 2016 USSC report), though some rearrests are for a violation of supervision conditions rather than a new crime.  Though I dislike when recidivism is broadly defined to included just "technical" violations, these USSC data provide useful and needed context for this Washington Times article headlined "320 federal inmates reoffended while on pandemic-related home confinement."  Here are excerpts (with emphasis added):

More than 300 federal inmates who were transferred to home confinement as a pandemic mitigation strategy reoffended and were sent back to prison, a top federal official said Thursday. Bureau of Prisons Director Michael Carvajal told the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security that substance abuse was the “most common” offense that landed inmates back behind bars.

“About 160 of those 320 were for abuse of alcohol or drugs,” Mr. Carvajal said. “Some of them were escapes – they weren’t where they were supposed to be – most of them were violations of that nature. Some was misconduct, eight of those were new crimes committed, the rest of those were technical violations.”

A bureau spokesperson told The Washington Times that six of the eight new crimes were drug-related, one was for escape with prosecution and one was for smuggling non-citizens....

During Thursday’s hearing, he said the 320 reoffending inmates are among more than 37,000 who were transferred to home confinement since Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES) in March 2020 to address threats posed by the pandemic.

The CARES Act allows the bureau to transfer certain low-level inmates convicted of nonviolent crimes to home confinement if they meet the COVID-19 risk factors identified by the U.S. Centers for Disease Control and Prevention. While some transfers have been put back in prison, others have completed their sentences and 5,485 inmates are still in home confinement.

In other words, it seems that not one single violent crime has been committed by more than 37,000 persons released early to home confinement under the CARES Act authority.  This is an amazing reality to be robustly celebrated, in part because it reveals that our federal system can effectively identify low-risk offenders who can be released early at essentially no risk to public safety.  

This great new Inquest piece by Jessica Morton & Samara Spence, titled "Home Rule: In weighing the future of thousands placed on home confinement during the pandemic, the government should prioritize where they are now: in their communities," places these data in another bit of telling context:

BOP’s own numbers show that people placed on home confinement pursuant to the CARES Act do not need to be returned to prison to prevent them from committing crimes. According to BOP data, only 9 of the 4,879 people placed on home confinement under the CARES Act — that is, less than two-tenths of a percent — have been reincarcerated for new criminal conduct.  By way of comparison, more than 100 BOP employees have been arrested, convicted of, or sentenced for crimes since the beginning of 2019. Given that BOP has 36,739 employees, BOP employees have a 1.5 times higher rate of alleged criminal conduct than the people the agency supervises on CARES Act home confinement, over a roughly similar period.

This Inquest piece should be read in full because it has a number of additional great points beyond the remarkable reality that BOP employees are apparently more of a public safety threat than the CARES home confinement cohort.  But the broader point is that federal experience over the last two years shows that is is possible to decarcerate a certain prison population without posing any real threats to public safety; indeed, done the right way and at the right time it may be possible to have more freedom and less crime.  That is in part the premise driving various elements of the FIRST STEP Act, and the CARES home confinement cohort has, in essense, demonstrated "proof of concept."

Of course, home confinement release with constant risk of reconfinement during a pandemic is not "normal" in any respect and so I do not think it fair to try to extrapolate too far from these encouraging recidivism data.  Nevertheless, whether a fan or a foe of modern criminal justice reform efforts, the impressively good behavior of the CARES home confinement cohort should be something that everyone can celebrate.

February 7, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (7)

Tuesday, January 11, 2022

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

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

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

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

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

Tuesday, January 04, 2022

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

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

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

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

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

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

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

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

Just a few of many prior related posts:

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

Monday, January 03, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, December 22, 2021

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

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

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

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

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

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

Tuesday, December 21, 2021

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

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

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

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

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

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

Some of many prior related posts:

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

Monday, December 20, 2021

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

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

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

Among the poll’s findings:

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

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

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

Some of many prior related posts:

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

Wednesday, December 15, 2021

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

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

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

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

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

Highlights

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

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

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

Thursday, December 09, 2021

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

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

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

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

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

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

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

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

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

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

A few of many prior related posts:

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

Wednesday, December 08, 2021

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

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

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

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

A few prior recent related post:

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

Monday, December 06, 2021

Working through challenges facing CARES home confinement cohort

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

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

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

So, what other options are available?

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

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

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

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

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

Tuesday, November 30, 2021

ACLU sues Biden Administration for data on CARES home confinement cohort

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

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

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

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

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

The full complaint is available here

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

Wednesday, November 24, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, November 12, 2021

Highlighting compassion's limits as to prison releases during pandemic

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

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

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

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

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

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

Thursday, November 04, 2021

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

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

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

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

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

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

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

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

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

Monday, October 25, 2021

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

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

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

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

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

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

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

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

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

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

Thursday, October 21, 2021

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

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

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

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

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

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

Wednesday, October 20, 2021

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

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

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

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

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

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

Saturday, October 09, 2021

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

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

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

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

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

Thursday, September 30, 2021

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

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

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

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

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

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

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

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

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

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

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

Friday, September 24, 2021

"Sex Offender Registration in a Pandemic"

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

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

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

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

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

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

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

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

Some of many prior related posts:

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

Tuesday, September 21, 2021

Sending a better clemency message while shooting the messenger

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

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

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

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

Monday, September 20, 2021

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

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

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

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

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

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

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

Notable accounting of a decade of decarceration via Decennial Census

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

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

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

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

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

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

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

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

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

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

Sunday, September 19, 2021

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

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

Research Summary

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

Policy Implications

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

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

Thursday, September 16, 2021

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

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

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

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

Prior recent related post:

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

Wednesday, September 15, 2021

"COVID-19 Relief and the Ordinary Inmate"

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

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

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

Monday, September 13, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

Interesting times.

Some of many prior related posts:

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

Wednesday, September 01, 2021

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

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

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

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

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

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

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

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

Monday, August 30, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, August 29, 2021

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

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

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

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

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

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

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

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

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

A few of many prior recent related posts:

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

Wednesday, August 25, 2021

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

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

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

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

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

Friday, August 20, 2021

"Virtual Guilty Pleas"

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

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

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

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

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

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

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

Thursday, August 19, 2021

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

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

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

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

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