Wednesday, October 21, 2020

"Decarcerating Correctional Facilities during COVID-19: Advancing Health, Equity, and Safety"

The title of this post is the title of this notable new report released yesterday by the National Academies of Sciences, Engineering, and Medicine.  This press release about the report provides a helpful summary, and here is the start of the press release:

Where needed to adhere to public health guidelines and mitigate the spread of COVID-19, authorities should use their discretion to minimize incarceration in prisons and jails — and facilitate testing, quarantine, social supports, and individualized reentry plans for those released, according to a new report from the National Academies of Sciences, Engineering, and Medicine.  The report recommends corrections officials and public health authorities work together to determine the optimal population for jails and prisons to adhere to public health guidelines, considering characteristics that facilitate viral transmission, such as overcrowding, population turnover, health care capacity, and the overall health of individuals living in the facility.

Decarcerating Correctional Facilities During COVID-19: Advancing Health, Equity, and Safety says as of August 2020, COVID-19 case rates among incarcerated people were nearly five times higher than in the general population, and three times higher among correctional staff.  Jails and prisons in the U.S. are often overcrowded, dense, poorly ventilated, and disconnected from public health systems, making COVID-19 prevention among incarcerated people and staff exceedingly difficult.

Decarceration — reducing the population of prisons and jails by releasing and diverting people away from incarceration as they enter the criminal justice system — can lower the risk of infection for older and other high-risk incarcerated persons, and allow correctional facilities to more easily implement other COVID-19 prevention strategies such as physical distancing.  The report says that while some jurisdictions have taken steps to decarcerate since the onset of the pandemic, these efforts have so far been insufficient to reduce the risk of COVID-19 in jails and prisons.

The report recommends correctional officials identify candidates for release in a fair and equitable manner.  Individuals who are medically vulnerable, nearing the end of their sentence, or who present a low risk of committing serious crime will likely be suitable candidates.  Research on recidivism suggests that decarceration can be done with minimal risk to public safety.  The report points to data from New York City and California that show large reductions in prison populations were followed by crime rates that either fell or remained at low levels.  Research also shows that most returns to a correctional facility are driven by technical violations of parole or release, rather than new crimes.

Additional helpful related resources appear in this Report Highlights and in this Interactive Report Overview.

October 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Tuesday, October 20, 2020

Rounding up yet another important round of recent COVID-19 prison and jail stories

One sign of COVID fatigue for me is my tendency now to just keep scrolling past new press stories about the ugly (new and old) realities of prisons and jails during this persistent pandemic.  But, especially because COVID fear and not just fatigue is a felt reality for many millions of incarcerated persons and corrections staff and their families every day, I still should keep rounding up prison-COVID press pieces on a regular basis.  And, as I have said before, we should be regularly thankful that the press and commentators keep reporting and discussing these stories that keep emerging from prisons and jails:

From the Appleton Post-Crescent, "COVID-19 has infected more than 2,600 people in Wisconsin’s prisons. Should certain inmates be released to stop the spread?"

From BBC News, "Prisoners locked up for 23 hours due to Covid rules is 'dangerous'"

From the (NC) News & Observer, "‘I signed up for a jail sentence, not a death sentence.’ Escapee now seeks leniency."

From the New York Times, "As Coronavirus Cases Soar, One Montana Town Reels: In the Mountain West, an outbreak has revealed the danger that the virus poses to jails and rural communities"

From NJ.com, "Murphy signs bill to release thousands of N.J. prisoners early beginning the day after Election Day"

From PBS News Hour, "Inside the COVID unit at the world’s largest women’s prison"

From Slate, "The Right to Escape From Prison: A 1974 ruling bears revisiting as prisoners flee the COVID-19 pandemic."

From the Washington Post, "Two Baltimore correctional officers died of covid-19 just months apart"

October 20, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Friday, October 16, 2020

Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends?

The question in the title of this post is prompted by this new Walter Palvo piece at Forbes headlined "US Attorney States Federal Inmates On Home Confinement Will Return To Prison Once 'Pandemic Is Declared Over'."  Here are excerpts:

It is a fact that the Federal Bureau of Prisons (BOP) has had a difficult time controlling the spread of COVID-19 within its 122 prison facilities located across the country.  As of October 13, 2020, there are over 1,600 active COVID-19 cases among inmates and another 14,000 who were infected but have recovered .... 126 have died.  Prison staff have also been hurt by the virus with 736 currently infected and over 1,200 who have recovered....

On March 26, 2020, Attorney General William Barr’s memo to Bureau of Prisons (BOP) Director Michael Carvajal stated that even more needed to be done and noted that one of the most effective “tools to manage prison population and keep inmates safe is the ability to grant certain eligible prisoners home confinement in certain circumstances.” Since then, the BOP has transitioned over 7,700 inmates to home confinement from prison to complete their sentence. While many of those had under a year remaining on their sentence, some have years to go with release dates of 2024 and beyond.  The expectation of those placed on home confinement was that their sentence would be served under these same conditions, but a case out of the District of Columbia sheds light on what may lie ahead for some who are on home confinement ... that could include a return to prison....

[In litigation over a compassionate release motion] Michael P. McCarthy of the Department of Justice’s Criminal Division Fraud Section [stated in court] ... "the BOP's program [home confinement under the Barr memo], it's a transfer until the end of the pandemic and then a return to prison if the pandemic is declared over."...

While everyone wants an end to the pandemic, those on home confinement may be told that they will be returning to prison ... or they could be asked to be immunized in order to return .... or the inmate could refuse immunization .... or the inmate may have only a few months remaining by the end of the pandemic and might file an appeal.  If people think the courts are bogged down with compassionate release cases now, wait until a return to prison is announced for those on home confinement.

I asked Jack Donson, a retired BOP corrections specialist, about the prospect of such an action.  Donson told me, “Before COVID-19, home confinement was limited to the lesser of 6 months or 10% of the sentence, aside from the Elderly Offender program but the CARES Act removed that cap so we have never had a situation where people were potentially on home confinement for years.  Nobody knows how this will play out but it has been taxing to the BOP to get people out of prison, I can only imagine that it would be even more taxing to get them back in, especially in light of the June 2020, target population reductions in the Low and Minimum security facilities.

Because of the opaque nature of BOP work and data, it is difficult to tell just how many persons have been transferred into home confinement and what percentage of these persons might have long enough still remain on their original sentences to perhaps prompt DOJ to seek their return to prison whenever the pandemic if over.  Sadly, I fear we are still many, many months away from returning to anything we might call post-pandemic normal prison operations, and so the need to start answering the question in the title of this post may still be a long way off.  But, as this Forbes piece highlights, it is probably not too early to start thinking about some of the legal and practical challenges that will come whenever we are "lucky" enough to return to "normal" in the federal prison section of incarceration nation.

October 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (2)

Thursday, October 15, 2020

"COVID-19 and the US Criminal Justice System: Evidence for Public Health Measures to Reduce Risk"

The title of this post is the title of this notable new report authored by a bunch of experts at Johns Hopkins.  Here is the report's introduction:

Since its recognition as a pandemic in early 2020, novel coronavirus disease 2019 (COVID-19) has touched nearly every corner of US society.  However, some populations and environments have been affected far more severely than others. Vulnerable populations — especially those subject to structural racism, discrimination due to disability, and financial insecurity — tend also to be particularly susceptible to the economic consequences of and severe disease and death from COVID-19.  In addition, the institutions, industries, and systems that are fundamentally important to our lives and our democracy have, in some cases, become places where severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) spreads readily if allowed to gain a foothold.  In these places, it can be difficult to prevent the introduction of the virus or control the spread of SARS-CoV-2 once it is introduced.

The US criminal justice system is highly susceptible to the spread of COVID-19 because of the structure of carceral facilities, which propagates the spread of respiratory infections, and the comorbidities of many incarcerated individuals. The criminal justice system in the United States is not unique in its vulnerability to COVID-19; other systems and industries — like nursing homes and long-term care facilities, manufacturing and meat processing facilities, and dormitories — are similarly affected. However, many factors converge in the criminal justice system that make viral transmission both more possible and, in some cases, more dangerous than in many other environments.

This report, from scholars at the Johns Hopkins Bloomberg School of Public Health and the Johns Hopkins School of Medicine, is intended to summarize the current state and future projections of the COVID-19 pandemic in the United States, detail the impact that the pandemic has already had on the US criminal justice system, and provide evidence-based recommendations on how to reduce COVID-19 risks to people in the system.  This document was requested by the National Commission on COVID-19 and the Criminal Justice System to inform their discussion and deliberation on this topic.

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

Tuesday, October 13, 2020

"COVID-19 in Juvenile Facilities"

The title of this post is the title of this short new report written by Josh Rovner at The Sentencing Project. Here is the start of its coverage:

COVID-19 has infected hundreds of youth housed in and staff working in juvenile facilities.  Given the close proximity that defines life in congregate care settings, such as detention centers and residential treatment centers, such spread was inevitable without significant reductions in population in these facilities.  Since March, The Sentencing Project has urged the release of as many youth as possible to bend the curve of infections within the juvenile justice system.  As of July, four staff members working in these facilities have died from COVID-19.

Among detained youth, COVID-19 cases have been reported in 35 states, the District of Columbia and Puerto Rico. Cases among staff have been reported in 41 states and the District of Columbia.

October 13, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (3)

Thursday, October 08, 2020

Federal prison population hits new modern law at 155,483 according to BOP reporting

Regular readers know that I have been closely watching COVID-era changes in the federal prison population because of dramatic declines in the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers.  At the start if the COVID era, the reported federal prison population was around 175,000.  But, as I highlighted in a series of prior posts, according to BOP's reporting, most weeks through much of the spring the federal prison population shrunk around or over 1,000 persons per week.  Into and through the summer months, weekly declines continued but at a rate closer to about 500.  Roughly a month ago, as reported in this post, the BOP reported "Total Federal Inmates" was down to 155,483; but then, as noted here, the BOP reported federal prison population ticked up a few hundred persons the following week for first time in COVID era.

Today, checking the new BOP numbers at this webpage report "Total Federal Inmates" shows seemingly a new modern population low at 155,197.  So, though it seems weekly federal prison population declines are no longer consistent or dramatic, we still seem to be experiencing small decreases many weeks and thus it is possible we have not yet hit "the bottom" as to COVID era federal prison population declines.   

I have wondered repeatedly in these posts whether COVID-delayed sentencings or stalled federal prison transfers or any number of other factors may largely account for these declines.  But a persistent lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard for me to be sure just what these weekly reported population numbers represent.  I remain hopeful that we may eventually get some timely sentencing data from the USSC, but I am not optimistic it will ever be easy to fully understand and account for all the ways the the federal criminal process and prison populations have been impacted by and are adjusting to the COVID era.

A few of many prior related posts:

October 8, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, October 07, 2020

Documenting the (unsurprising) lack of compassion from federal prison officials when considering COVID-era compassionate release requests

The Marshall Project has this lengthy new piece reporting on an old story, namely the utter failure of federal prison officials to discharge effectively their "compassionate release" responsibilities by helping to identify prisoners who ought to have their prison sentences reduced due to serious illness or other compelling factors.  The full piece is worth a full read; it is fully headlined: "Thousands of Sick Federal Prisoners Sought Compassionate Release.  98 Percent Were Denied.  Wardens blocked bids for freedom as COVID-19 spread behind bars, data shows."  Here are a few excerpts, with commentary to follow:

Data recently obtained by The Marshall Project underscores what attorneys, advocates and experts have long suspected: As the pandemic ramped up, federal prison wardens denied or ignored more than 98 percent of compassionate release requests, including many from medically vulnerable prisoners like Neba.  Wardens are the first line of review; ultimately, compassionate release petitions must be approved by a judge.  Though the Bureau of Prisons has previously posted information about the number of people let out on compassionate release, it wasn’t clear until now just how many prisoners applied for it or how frequently wardens denied these requests despite widespread calls to reduce the prison population in the face of the pandemic....

Of the 10,940 federal prisoners who applied for compassionate release from March through May, wardens approved 156.  Some wardens, including those at Seagoville in Texas and Oakdale in Louisiana, did not respond to any request in that time frame, according to the data, while others responded only to deny them all.  Higher-ups in Washington, D.C., reviewed 84 of the warden approvals and overturned all but 11.  Time and again, the only way prisoners were able to win compassionate release was to take the bureau to court to fight the wardens' denials.

For dozens of people stuck behind bars, the virus has proved fatal; so far, 134 federal prisoners have died of COVID-19, and more than 15,800 have fallen ill. A statement from the Bureau of Prisons did not address specific questions, including why some wardens failed to respond to release requests. The wardens referred questions to the bureau.

At Elkton, an early hot spot in Ohio where nine prisoners died of COVID-19 and more than 900 got sick beginning in March, the warden denied 866 out of 867 requests for compassionate release between March 1 and May 31.

In California, the prison at Terminal Island became the site of a major outbreak, with 694 prisoners testing positive by the end of May. But the warden only approved five of the 256 compassionate release requests filed by that time.  At Butner, a four-prison complex in North Carolina where 25 prisoners and one correctional officer died in May and June, officials approved 29 of 524 requests by the end of May.

At some prisons, the low number of requests raised questions about the bureau’s recordkeeping.  For example, at the Oakdale complex, an early hot spot in Louisiana where eight prisoners have died, officials reported just 95 compassionate release applications by the end of May out of a population of more than 1,700. The warden took action on none of them. At the same time, the prison racked up 191 positive cases.  Likewise at Forrest City, a two-prison complex in Arkansas where more than 700 men fell ill, officials reported only three applications by the end of May.  All three were approved.

For more than a dozen institutions, including all 11 of the privately run federal prisons, the bureau listed no compassionate release requests at all.  “The numbers seem incorrect,” said Somil Trivedi, a senior staff attorney with the American Civil Liberties Union, who has helped coordinate lawsuits against federal prisons. “I just don’t feel like they’re counting them all.  This has to be an undercount because of the informal nature of the process.”

I am very pleased to see the Marshall Project seek to marshal this data, and I would have been shocked if the data showed anything else about how federal prison officials responded to compassionate release requests.  Congress through the FIRST STEP Act wisely altered the process for these requests to authorize prisoners to directly motion courts for a sentence reduction (often called "compassionate release") because federal prison officials had so badly failed for decades to effectively discharge their "compassionate release" responsibilities.   In the past, many hundreds of inmates had died before prison officials would even respond to requests, and Congress should be widely praises for its wise decision to now allow prisoners to motion courts directly after first making the request to prison officials.

That said, the challenges of collecting these data and keeping them updated serves as a reminder that the FIRST STEP Act did not fix everything.  As long known by those involved in this system, the federal BOP still needs to be subject to considerably more independent oversight and reporting requirements.  BOP's overall lack of accountability and transparency was bad enough in normal times, especially since the BOP has been the nation's largest incarcerator for the better part of two decades.  In the COVID era, the federal prisons bureau should be doing a whole lot better and that really seem to now require significant structural change.

That all said, any doom and gloom about federal prison officials can and should be tempered by the broader success stories in the arena of sentence reductions (often called "compassionate release") under 3582(c), and this overall success is usefully documented in real time by the BOP.  Though the BOP does not discuss motions denied of any particulars, the BOP does helpfully report at this FSA page the total number of granted post-FIRST STEP Act "Compassionate Releases / Reduction in Sentences."  As of this writing, that number stands at 1752 (and is up over 250 in just the last month since I blogged on this topic here). 

As detailed in this post, the US Sentencing Commission has reported that in the year before FIRST STEP only 24 persons got their sentenced reduced; in the year after FIRST STEP became law, that number of sentence reductions rose to 145.  Doing the math, this all means that in the COVID era there have already been over 1600 sentence reduction motions granted (meaning roughly 80 times as many as pre-FIRST STEP and 11 times as many as post FIRST STEP/Pre-COVID)!  

A few of many prior related posts:

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

Monday, October 05, 2020

"Remote Criminal Justice"

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

The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay.  The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over.  To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020.  The survey responses were supplemented with direct observations of remote plea hearings and the first criminal jury trial conducted via Zoom.

The survey responses paint a complicated picture.  They suggest that, on the whole, online proceedings can save time and resources for the participants in criminal cases and can provide broader access to the courts for the public.  Yet respondents also noted the dangers of remote justice, particularly in contested or evidentiary hearings and trials.  These include the inability of the parties to present evidence and confront witnesses effectively, and the challenges of providing adequate legal assistance remotely.  Respondents also expressed concern that the court’s perception of defendants may be negatively skewed by technology and that indigent defendants might be disproportionately harmed by the use of remote hearings. Defense attorneys were especially likely to be concerned about the use of the online format and to believe that it tends to harm their clients.  Federal judges and prosecutors were also more likely than their state counterparts to be skeptical of the benefits of online criminal proceedings outside the context of the pandemic.

Based on the survey responses, an analysis of scholarship and case law, and first-hand observations of virtual criminal proceedings, the Article concludes with several recommendations about the future use of online criminal justice.  It argues that states should be wary of expanding the use of remote proceedings after the pandemic is over.  Online technology could be used more broadly to conduct status hearings and hearings on questions of law and to increase the frequency of attorney-client consultations.  Beyond these narrow circumstances, however, remote hearings post-pandemic should be used only sparingly, as they carry too many risks to the fairness of the proceedings.  If jurisdictions make the choice to use virtual proceedings in circumstances beyond status hearings and legal arguments, this should be done only after obtaining an informed and voluntary consent from the defendant, and with great care taken to reduce the risks of unfairness and unreliable results.

October 5, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (0)

"Decarceration and community re-entry in the COVID-19 era"

The title of this post is the title of this new piece by multiple authors published in The Lancet Infectious Diseases.  Here is its "Summary":

Jails and prisons are exceptionally susceptible to viral outbreaks, such as severe acute respiratory syndrome coronavirus 2.  The USA has extremely high rates of incarceration and COVID-19 is causing an urgent health crisis in correctional facilities and detention centres.  Epidemics happening in prisons are compounding the elevated risks that COVID-19 poses to people of colour, older people, and those with comorbidities.  Intersectoral community re-entry efforts in the USA and other countries have shown that releasing people from correctional facilities as a pandemic-era public health intervention is safe and can support both public safety and community rebuilding.  Therefore, substantial decarceration in the USA should be initiated.  A point of focus for such efforts is that many people in prison are serving excessively long sentences and pose acceptable safety risks for release.  Properly managed, correctional depopulation will prevent considerable COVID-19 morbidity and mortality and reduce prevailing socioeconomic and health inequities.

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

Thursday, October 01, 2020

Council on Criminal Justice's new National Commission on COVID-19 and Criminal Justice releases first report on "Recommendations for Response and Future Readiness"

I noted here a few month ago that the Council on Criminal Justice (CCJ) had launched an important, timely and impressive new commission titled the "National Commission on COVID-19 and Criminal Justice" and headed by two former US Attorneys General.   This commission today released this first interim report titled "Recommendations for Response and Future Readiness," and here is a portion of its executive summary:

Since it was established in late July, the Commission has worked quickly, publishing six reports assessing the impact of COVID-19 on crime rates, budgets, and jail and prison populations. It has taken written and oral testimony from a broad spectrum of criminal justice organizations, researchers, advocates and others, including those recently released from correctional facilities.

This interim report, Recommendations for Response and Future Readiness, tackles the second goal. It is intended to assist criminal justice leaders on the front lines by offering actionable guidance on how to respond immediately and directly to the coronavirus pandemic, and to prepare for a possible second wave of infections this fall.  A subsequent report, to be released by the end of 2020, will offer consensus recommendations that address the broader implications of the pandemic and systemic reforms to policy and practice.

Guiding Principles

What should criminal justice leaders do, right now, when responding to COVID-19? What are the most important steps they can take immediately to limit the spread of the virus and improve readiness?

First, they should follow a set of key principles, as detailed in these recommendations.

  • Preserve public health in addition to public safety;
  • Get the facts and rely on strong data and science;
  • Be proactive, going above and beyond normal measures to protect all those connected to the criminal justice system; and
  • Improve equity and increase inclusion in decision-making, being mindful of the racial and other disparities that plague both the health and justice systems.

Cross-Sector Recommendations

Criminal justice leaders should also consider the following general recommendations that apply to all sectors of the system.

  • Stop exponential growth. Leaders should aim to exceed authoritative guidance from the Centers for Disease Control and other authoritative bodies in order to contain the potential exponential spread of COVID-19. Exponential growth means that one person infects many, and those many infect many more. It is imperative for leaders to prevent such growth of COVID-19 cases - and remain vigilant once it is controlled – by consistently implementing and enforcing well-known, scientifically proven measures such as physical distancing, universal masking, and mass testing.
  • Communicate transparently. Criminal justice leaders should be as transparent as possible in addressing the coronavirus pandemic. Leaders must communicate clearly, quickly, and repeatedly with staff, justice-involved populations and their families, and the public. They must also collect, report, and make public critical data related to COVID-19 infection, morbidity, and mortality, taking care to capture data by race and ethnicity in order to produce a full picture of how the virus has affected the groups most impacted by the justice system.
  • Limit contact, maximize distance, reduce density. Given the risks associated with criminal justice contact during the pandemic, leaders should take measures to limit system contact, maximize distance, and reduce density wherever possible. Such measures may include limiting custodial arrests, reducing admissions to and increasing releases from jails and prisons, and moving indoor operations and activities outside, among others.
  • Allocate resources strategically. The coronavirus pandemic has deeply impacted the local, county, and state budgets that fund the vast majority of criminal justice operations in the country. In response to declining revenues and shrinking budgets, leaders should allocate resources strategically rather than order simplistic across-the-board cuts. In particular, leaders should innovate, using technology to do more with less, as well as preserve funding for evidence-based programming and solutions that provide equitable access to justice.
  • Engage impacted communities. Critically, criminal justice leaders should actively collaborate with each other and engage and consider impacted communities in all decision making. Regular opportunities for input from disproportionately impacted groups should be provided, especially poor communities of color. Leaders should be mindful of the racial disparities that continue to plague the criminal justice and health systems and ensure their responses to COVID-19 do not exacerbate such disparities.

Sector-Specific Recommendations

The Commission recommends a series of measures for each of the four major sectors of the criminal justice system. These recommendations provide more detailed, specific guidance for leaders to address the unique realities of each sector.

October 1, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Wednesday, September 30, 2020

"Youth Justice Under the Coronavirus: Linking Public Health Protections with the Movement for Youth Decarceration"

The title of this post is the title of this notable new report written by Josh Rovner at The Sentencing Project.  Here is the start of its executive summary:

The novel coronavirus, COVID-19, has infected more than 1,800 incarcerated youth and more than 2,500 staff working in the detention centers, residential treatment facilities, and other settings that comprise the deep end of the juvenile justice system.  More than six months after the first infections emerged, the emergency is not over.

According to data collected by The Sentencing Project, COVID-19 cases have been reported among incarcerated youth in 35 states, the District of Columbia and Puerto Rico.  In five states, more than 100 incarcerated youth have tested positive.  Four staff members working in juvenile facilities have died from the virus.

In congregate care settings, this contagious pathogen’s spread was inevitable.  States and localities have taken steps to mitigate COVID-19’s impact, including releasing confined youth, curtailing admissions, limiting visitation and programming, and isolating youth in a manner that mimics solitary confinement.  Given the persistent racial and ethnic disparities in juvenile justice, there is little doubt that youth of color are suffering disproportionately from the virus and the changes within facilities that it has brought.

This report summarizes lessons learned through the first months of the pandemic, focusing on system responses, both positive and negative, to slow the virus’s spread and to protect the safety and wellbeing of youth in the juvenile justice system while keeping the public informed.  Drops in admissions during the pandemic, alongside decisions to release youth at a higher rate than during ordinary times, buttress the long-standing case that youth incarceration is largely unnecessary.  Jurisdictions must limit the virus’s damage by further reducing the number of incarcerated youth.

September 30, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Saturday, September 19, 2020

Noting encouraging new federal compassionate release realities

I am pleased to see this CBS News new article headlined "Compassionate release, once seldom used, offers some federal inmates hope."  Here are excerpts:

[C]ompassionate release [was] a once seldom used remedy that allows inmates to receive a reduction in their sentence. The process, which is only used in extraordinary circumstances, has seen an uptick during the coronavirus pandemic....

Petitions for compassionate release were rarely approved prior to the passing of the First Step Act in December 2018, which created a procedural change, making it easier for offenders and their families to bring their request to the court.

There were 145 offenders released in 2019 — about five times more than the year before, when 24 people were granted release, according to a report by the U.S. Sentencing Commission.  On average, the sentences were reduced by 84 months last year, compared to 68 months the year before.  Two-thirds of those who successfully obtained release did so by filing requests through the court, rather than going through the Bureau of Prisons, the report found.

The bureau, in a statement, said it has no direct authority to reduce an inmate's sentence, but rather, a director determines if an inmate is eligible and submits a request to the prosecuting U.S. Attorney's Office to file a motion on behalf of the director.  "Inmates who are found to be ineligible under agency criteria, or who are determined to be inappropriate for agency approval of a reduction in (a) sentence may file a motion themselves directly to the sentencing court per the First Step Act," the statement said.

So far, nearly 1,600 cases have been approved, the bureau said, meaning that in the year of the pandemic, the numbers of those being released have increased tenfold since the year before.

The virus has killed 120 federal inmates, the bureau said.  Saferia Johnson, a 36-year-old with pre-existing health conditions, died from the virus in August after her petitions for release were reportedly denied by a prison warden in Sumterville, Florida.  Johnson was serving a 46-month sentence at the Coleman Federal Correctional Complex for conspiracy to steal public money and for aggravated identity theft.  The bureau declined to comment on her case.

Compassionate release differs from home confinement, a program that Attorney General William Barr directed the Bureau of Prisons to enforce in March, just as the pandemic began to root itself inside the federal prison system.  Home confinement allows current inmates to serve out the remainder of their sentence from the comfort of their home while still remaining under correctional supervision.  The Justice Department prioritized the elderly, those at high-risk, and non-violent offenders for home confinement.  As time went on, the qualifying factors set by the bureau included those who had already served at least half of their sentence.

Since Barr issued the directive, over 7,600 inmates have been placed into home confinement.  Notable recipients include President Trump's former campaign manager, Paul Manafort, and his former personal lawyer, Michael Cohen.  However, in light of the pandemic, judges have been approving more petitions for compassionate release, and organizations like FAMM are helping spearhead the effort.

FAMM, in conjunction with other civil rights groups, created the "Compassionate Release Clearinghouse" in 2019, and has advocated for inmates who qualify for the sentence reduction under the First Step Act.  "We didn't think it was smart to keep sick and elderly people in prison before COVID-19 hit — and it seemed downright immoral to trap them there once it did," said Kevin Ring, the organization's president.

"We don't usually do direct services, but this was a humanitarian emergency.  We are grateful to the hundreds of federal defenders and volunteer attorneys — both in and outside of the Clearinghouse — who helped families get their loved ones out of harm's way."

A few prior recent posts:

September 19, 2020 in Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, September 17, 2020

BOP reported federal prison population ticks up for first time in COVID era

Regular readers know that I have been closely watching COVID-era changes in the federal prison population because of dramatic declines in the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers.  At the start if the COVID era, the reported federal prison population was around 175,000.  But, as I highlighted in a series of prior posts, according to BOP's reporting, most weeks through much of the spring the federal prison population shrunk around or over 1,000 persons per week.  Into and through the summer months, weekly declines continued but at a rate closer to about 500.  As of last week, as reported in this post, the BOP reported "Total Federal Inmates" was down to 155,483. 

Today, on the cusp of fall 2020, the new BOP numbers at this webpage report "Total Federal Inmates" at 155,741.  In other words, there is reason to wonder whether we may have hit "the bottom" as to COVID era federal population declines, as this week we see an increase in the reported population of just ver 250 persons.  

I have wondered repeatedly in these posts whether COVID-delayed sentencings and stalled federal prison transfers may account for most of these declines.  But a persistent lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard for me to be sure just what these reported population numbers represent.  As I have said before, I am hopeful we may eventually get some timely sentencing data from the USSC.  But we are now well over six months into the pandemic, and the USSC still seems in no rush to provide any inkling of how the federal criminal sentencing process has been impacted by and adjusting to the COVID era.

A few of many prior related posts:

September 17, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, September 13, 2020

The new death penalty: The Marshall Project reporting COVID prisoner deaths exceed 1000

In this post back in May, I started what became a series of posts in which I noted what might be called a new kind of death penalty for prison and jail inmates in the United States: by killing many hundreds of incarcerated persons, COVID-19 has turned all sorts of other sentences into functional death sentences.  In prior postings, I have often flagged the death data from the UCLA Covid-19 Behind Bars Data Project, but today I see that The Marshall Project has updated data here showing that prisoner deaths have hit another grim milestone:

Deaths

The first known COVID-19 death of a prisoner was in Georgia when Anthony Cheek died on March 26. Cheek, who was 49 years old, had been held in Lee State Prison near Albany, a hotspot for the disease.  Since then, at least 1,016 other prisoners have died of coronavirus-related causes.  By Sept. 8, the total number of deaths had risen by 5 percent in a week.

There have been at least 1,017 deaths from coronavirus reported among prisoners.

Of course, 1000 is just a round number and every single COVID death is individually sad and disconcerting.  I continue to hope that, somehow, we might be getting past the worst of this pandemic that has (predictably) already been so lethal for persons in and around prisons and jails. 

A few of many prior related posts:

September 13, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Thursday, September 10, 2020

Federal prison population now down to 155,483 according to BOP reporting

Regular readers likely realize that I am no longer providing weekly updates on COVID-era changes in the federal prison population because declines in the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers has slowed considerably.  But I am continuing to notice that the BOP population is still declining and this story seems worth watching closely amidst  continuing efforts to return to some form of new normal.

As I have noted before via this post, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; through June, as detailed here, declines continued at a slightly reduced rate of about 950 fewer persons reported in all federal facilities on average per week.  But by the tail end of July, as noted here, weekly reported population declines were trending under 500.

My post on July 30 noted that the federal population was at a another new historic low with the new BOP reported "Total Federal Inmates" at 157,862.  Three weeks later, on August 20, I reported here that we were down to 156,415.  Today, three more weeks on, the new BOP numbers at this webpage report "Total Federal Inmates" at 155,483

As I have said repeatedly before, I still suspect that COVID-delayed sentencings and stalled federal prison transfers continued to account for mot of these declines; but the lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard to be sure just what the reported population numbers represent.  I am hopeful that we will eventually get some sentencing data from the USSC that can help us better understand these prison data, but now well over six months into the pandemic, the USSC still seems in no rush to provide any inkling of how the federal criminal sentencing process has been impacted. Grrr.

A few of many prior related posts:

September 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Wednesday, September 09, 2020

Ugly details from federal defenders' latest fact sheet on COVID-19 and federal detention

Sentencing Resource Counsel for the Federal Public Community Defenders has just released this new two-page fact sheet dense with information and links on "The COVID-19 Crisis in Federal Detention."  I recommend the full document, and here are some of the details (absent the links):

COVID-19 is ripping through the Federal Bureau of Prisons (BOP), infecting incarcerated individuals at a rate 4 times the general population, and causing deaths at nearly twice the national rate. BOP is “making it worse,” said Joe Rojas, the regional vice president of the American Federation of Government Employees Council of Prison Locals. “They’re making the virus explode.”

There have now been 126 reported deaths of incarcerated individuals, an incalculable loss.  They were parents, siblings, and children.  They were us.  Some of their deaths were surely preventable.  BOP’s press releases reveal that the majority — 93 — were at higher risk of complications from COVID-19 and BOP knew it.  At least a quarter of those who have died in BOP’s care were seventy or older.  Last month, BOP told the Washington Post that at least 18 individuals died while their requests for compassionate release were pending.  To date, we have identified 19 individuals who died in BOP custody after filing — and in some cases, even after being granted — requests for release....

BOP and DOJ have ignored the tools Congress gave them to lower prison populations safely.  The bipartisan CARES Act authorized AG Barr to dramatically expand the use of home confinement to protect the most vulnerable from COVID-19.  But in response, AG Barr and BOP have issued restrictive guidance and memos, each “more confusing than the next,” that together establish a “complex set of procedural and logistical hurdles to home confinement.”  To date, BOP has approved for transfer to home confinement only 4.4% of the 174,923 who were in custody on February 20.  The DOJ OIG examined BOP’s response to COVID-19 at one of BOP’s hardest-hit facilities, Lompoc Federal Correctional Complex, and found that BOP’s use of home confinement at FCC Lompoc was “extremely limited.”  The Department of Justice (DOJ) has not released demographic data on the individuals BOP has approved for home confinement, despite congressional demands.  At a time when transparency is more important than ever, the federal incarceration system is a black box. “The problem is that prisons in the U.S. are not accustomed to oversight and transparency.”

Thanks to the First Step Act of 2018, individuals no longer must depend on BOP to initiate a motion for compassionate release. Post-FSA, defendants may file a motion directly with the court 30 days after the warden’s receipt of a request.  But during the COVID-19 crisis, this 30-day delay, coupled with DOJ’s routine opposition, prevents vulnerable defendants from obtaining critical relief.  At FMC Carswell, a medical facility that houses the most medically vulnerable women in BOP, “fewer than 20 women” have reportedly received compassionate release.  Based on a survey of defense attorneys representing clients across the country, we are not aware of a single BOP-initiated motion for compassionate release based on heightened risk of severe illness from COVID-19 infection.

September 9, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (5)

Sunday, September 06, 2020

"Lives on the Line: Women with Incarcerated Loved Ones and the Impact of COVID-19 Behind Bars"

The title of this post is the title of this interesting recent report I just came across from the "Lives on the Line Campaign." Here is part of the start of the report's executive summary:

Incarceration has always posed a grave threat to public health. Jails, prisons, and detention centers subject people to dangerous, unhealthy, inhumane conditions and experiences by design.  So, when COVID-19 became a pandemic, we knew that our loved ones’ lives were on the line. We knew that the crowded, unsanitary conditions behind bars and a lack of access to medical care would mean that incarcerated people would be among those hit hardest by the virus.  We knew that the patriarchal, punitive values embedded into the prison industrial complex would prevent incarcerated people from receiving the kind of care they need to survive a pandemic.  And we knew that this harm would ripple out to cause profound physical, emotional, and economic harm for the communities that mass incarceration targets: historically marginalized people, especially Black and Brown communities and women.

In response, Essie Justice Group, in partnership with Color of Change, created the Lives on the Line survey for people with incarcerated loved ones.  Knowing that carceral spaces are designed to obscure their own violence, the survey sought out concrete data that could illustrate what was happening behind bars and buoy the efforts of advocates across the country fighting to free incarcerated people amidst the COVID-19 pandemic.  Carceral facilities are using COVID-19 as poor justification to further isolate incarcerated women, men, and people of all genders from the outside.  Therefore, we put out a public call to people with incarcerated loved ones to share information and testimonies, acknowledging that women with family members behind bars are uniquely material witnesses to what is happening in prisons, jails and detention centers during COVID-19. Our survey ran over a four-week period from May 5th to June 7th, 2020.  We received 709 responses.

The data we collected makes clear that what is happening with COVID-19 behind bars is a humanitarian and public health disaster.  Jails, prisons, and detention centers are callously failing to take bare minimum measures to mitigate the spread of COVID-19, such as instating distancing protocols or providing adequate supplies of free soap, disinfectant, or masks to incarcerated people.  Facilities have exploited the virus as an opportunity to further sever connections between incarcerated people and their support networks, including their lawyers and their loved ones.  In a moment when people need to be released faster than ever, court dates, hearings, and release dates are being delayed.  As a result, incarcerated people are suffering and dying from COVID-19 at alarmingly high rates.  They and their loved ones live with fear, extraordinary anxiety, and extreme isolation.  Incarceration is fundamentally incompatible with human dignity and human health; COVID-19 makes that undeniable.

A key objective of this report is to highlight the disparate impact of COVID-19 behind bars on Black people and Black women, uplifting the crisis as a gender and racial justice issue.

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

Friday, September 04, 2020

Plenty more COVID headlines and stories in incarceration nation

I am now generally rounding up prison-COVID press pieces every few weeks, even though the ugliness of American prisons and jails during a pandemic is a felt reality for millions of incarcerated persons and their families every day.  As I have said before, we should be thankful that the press and commentators keep reporting and discussing these stories that keep emerging from our prisons and jails:

From the Appalachian Media Institute, "A Call for Help (from Prison During COVID)"

From Cal Matters, "COVID-19 hotspots revealed the need for prison reform and better rehabilitation"

From Carolina Public Press, "Are NC prisons in contempt? Punishing sick, misleading information alleged as judge weighs action"

From CNN, "Prison inmates are twice as likely to die of Covid-19 than those on the outside, new report finds"

From Cowboy State Daily, "Due to Coronavirus, Wyoming Penitentiary Prisoners Let Out Of Cells 15 Minutes A Day"

From Governing, "COVID Prison Disaster Prompts Reform Bills: Legislative Watch"

From Montana Public Radio, "'It’s Like Sardines:' Advocates Call For Health Protections For Inmates"

From STAT, "As Covid-19 cases in prisons climb, data on race remain largely obscured"

From WBUR, "Medical Experts Raise Questions About COVID-19 Data From Mass. Jails And Prisons"

In this round-up, I have left out stories about continued increases in positive COIVD cases and deaths among prisoners not because there aren't any, but because there are too many to cover them all effectively.

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

Wednesday, September 02, 2020

CCJ releases new "Impact Reports" on "COVID-19 and Prisons" and "COVID-19 and Jails"

Earlier today I was praising the work of the Council on Criminal Justice (CCJ) for launching an important and impressive new commission to assess the impacts of COVID-19 on the criminal justice system (basic details here).  Not more than a few minutes later, I received an email about two new important reports from the commission.  Here is the heart of the email with links to the reports:

New research released today by the National Commission on COVID-19 and Criminal Justice found wide disparities among states in rates of COVID-related deaths and cases in prisons.  Five states — Arkansas, New Mexico, Kentucky, Ohio, and Delaware — reported prison mortality rates more than eight times higher than rates for their general state populations, while some states — including New York and Pennsylvania — reported prison death rates below those for the non-incarcerated.

Overall, after adjusting for the age, sex, and race/ethnicity of incarcerated individuals, the study found that theCOVID-19 mortality rate in state and federal prisons is twice that of the death rate for the general population.  Without those demographic adjustments, the rate of COVID-19 cases in prisons is more than four times the national rate. 

The Commission also released a separate analysis of the pandemic’s impact on jail populations, based on more than 14 million daily jail population records collected between January 1 and July 20.  Reflecting data from 375 facilities in 39 states, it found that jail numbers declined by an average of 31% between the issuance of the White House Coronavirus Guidelines on March 16 and mid-May.

The declines were accompanied by changes in the composition of jail populations.  After pandemic responses began in March, data showed that those released from jails were on average 34% more likely to have been booked on felony charges, and had been detained for 71% longer, compared to pre-pandemic releases.  The shares of people in jail who were booked on only misdemeanor charges, who were female, and who were white all decreased, while the proportions of those who were black, male, age 25 or younger, and booked on felonies increased.  These compositional changes have persisted even as the jail population trend reversed, growing 12% between mid-May and July 20. 

The jails study, by  Anna Harvey and Orion Taylor of New York University’s Public Safety Lab, also showed that rebooking rates for people released after March 16 remained at or below pre-pandemic rates.  These findings suggest the population reduction did not negatively affect public safety during the first three months of the COVID-19 outbreak, but the authors caution that this could change as the pandemic wears on....

The prisons report was prepared by economist  Kevin T. Schnepel of Simon Fraser University. Analyzing data through August 19, it also found that:

  • Among large correctional systems, Ohio reported 86 COVID-related deaths and a prison death rate more than 11 times the state rate; Texas had 112 deaths and a mortality rate about three times the state rate; and California, with 53 deaths, had a death rate about twice the state rate.
  • The highest prison mortality rate was reported by Arkansas. With 34 deaths and a prison population of about 15,500, its mortality rate of 218 deaths per 100,000 people in prison was nearly 20 times the state rate.
  • Fourteen states reported zero COVID-19 deaths within their prisons, and six reported COVID-19 death rates below adjusted state mortality rates.
  • The Federal Bureau of Prisons – the largest single prison system in the nation with about 179,000 people held in facilities – reported 116 deaths and a mortality rate nearly twice the national rate.
  • Overall, the highest mortality rates were reported in large prisons (over 1,000 people), which accounted for 83% of total confirmed coronavirus infections and 87% of total deaths.

September 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

In praise of a bipartisan effort to assess and address COVID and criminal justice

I noted a some weeks ago that the Council on Criminal Justice (CCJ) — a favorite new organization of mine in part because they asked me to take a close look at the 1994 Crime Bill's sentencing provisions and because they recently produced a great report urging federal criminal justice reforms — has launched an important and impressive new commission to assess the impacts of COVID-19 on the criminal justice system (basic details here).   I am pleased to see that the heads of the commission, former AGs Loretta Lynch and Alberto Gonzales, have this new Hill piece about its work.  Here are excerpts:

Across our country, the coronavirus is placing unprecedented pressure on those who live and work within our justice system.  From our local jails to courts, police precincts, and community organizations, the impacts of the pandemic are forcing us to improvise as we struggle to dispense justice and promote safety.

But which of our new policies and practices work best, are backed by evidence, and merit our trust?  How can we ensure that our justice system operates more fairly and effectively, notably for communities of color and lower income Americans?  Could that realignment create a path to restoring public confidence and trust in the justice system as it seeks to provide not just accountability but also fairness and transparency?

The urgent need to answer those questions is among the reasons we are serving as chairs of a national commission on the coronavirus and criminal justice.  As two former United States attorneys general, one who served in a Democratic administration and one who served in a Republican administration, we do not see eye to eye on every issue.  But we do agree that the threat of the pandemic to our justice system demands an independent response guided by research and experience.

That is precisely what this commission contributes during this historic moment in time.  Launched by the Council on Criminal Justice, it will assess the impact of the coronavirus on the justice system, develop priority strategies to contain outbreaks, and recommend policy changes to better balance public health and public safety.

We are fortunate to join numerous members who bring a wide range of experience to our work on the commission.  They include justice system leaders on the front lines, a big city mayor, community activists, a public health specialist, a respected incarceration researcher, and a formerly incarcerated individual.  Testimony from other experts and advocates will ensure our work is informed by a broad set of views.

Given the urgency of the crisis, and the thirst for reliable and realistic solutions, we are moving quickly.  In the coming weeks, we will complete our evaluation of the impact of the coronavirus on courts, corrections, law enforcement, and community organizations.  We will identify cost effective ways to minimize the spread of the pandemic and the impact of future outbreaks.

Our second phase will focus on reforms of the justice system.  The coronavirus may be novel, but it brought to the fore problems that have plagued the justice system.  By the end of the year, we will recommend the policies and practices that must change based on what the pandemic and response have highlighted for us about the fairness and effectiveness of the justice system, notably for people of color and the poor....

In our deliberations, we are driven by the knowledge that the pandemic has exacted a heavy toll on those who work and live within our justice system.  The largest clusters of the coronavirus across the country are in prisons and jails, where more than 145,000 incarcerated people and staff have tested positive.  Nearly 900 incarcerated people and almost 90 correctional employees have died....

The coronavirus will shape our society for generations, so helping our courts, police districts, correctional facilities, and community organizations emerge from the pandemic more prepared and better equipped to deliver truly impartial and racially blind justice is a daunting challenge.  But we must, and we will, meet this moment head on.

September 2, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Notable new tool for tracking COVID-19 risk in state prisons

I just was altered to this notable new tool coming from the Litmus Program at the NYU Marron Institute, which is described via this posting titled "State Prison Covid-19 Risk Tracker":

Correctional and detention facilities have proven to be hotspots for COVID-19, with the ten largest outbreak clusters in the United States occurring in prisons or jails.  Staff and visitors come and go from correctional institutions, potentially bringing infection in and out.  As facility administrators and health officials shift from immediate crisis response to managing a dynamic and long-term event, data-tracking tools can guide proactive steps to manage outbreaks and improve conditions of confinement.

The Litmus team generated a census of state adult correctional and detention facilities and created an interactive mapping tool that uses publicly available, county-level data from the New York Times on numbers of confirmed cases and deaths, updated daily, to indicate which facilities are located in or near counties that appear to be at high risk for community transmission.  Community risk is calculated using three alternative metrics: recent deaths, recent death rates per 100k, and current case-doubling time.

With support from Unorthodox Philanthropy, the NYU Marron Institute interactive mapping tool is created as a resource for families and advocacy groups and to assist decision-makers in prioritizing PPE, staff and resident testing, increased social distancing (e.g., dorm closures), more stringent cleaning procedures, and adapting policies, including early release, in response to COVID-19 outbreaks.  It can guide intra-system transfers, indicating facilities between which it may be safe to transfer residents and facilities that should restrict new transfers and keep vacancies as people release, to allow for greater social distancing.  The tool is also intended to make community-risk information more accessible so that it can be used to improve conditions of confinement.  Community-risk data can help prioritize lower-risk facilities for relaxing restrictions on external service providers and allowing more congregant time or outside visitors, improving upon the stark conditions in which many incarcerated people currently reside.  It can inform release protocols, allowing for prioritization of quarantine housing, testing, and other support for people returning to their communities from high-risk facilities and serve as a mechanism to target community partnerships between facilities, local health departments, and community-serving organizations.

September 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Thursday, August 27, 2020

"The Scale of the COVID-19-Related Jail Population Decline"

The title of this post is the title of this new short "evidence brief" from the Vera Institute.  Here is its summary:

From mid-March to mid-April 2020 — the first month of rapid spread of COVID-19 in the United States — there was an unprecedented reduction in the number of people held in local jails.  Analysis conducted by the Vera Institute of Justice (Vera) of the most comprehensive jail data available shows that the number of people in jail in the United States fell by one quarter, mainly over the course of that month.  Jail bookings dropped as people who would otherwise have been arrested stayed home, and police and sheriffs made fewer arrests they deemed unnecessary.

Simultaneously, many judges and prosecutors used their broad discretion to facilitate the release of people they deemed safe, while public defenders filed thousands of motions to secure the release of their clients.  Although some highly visible judges and prosecutors continued to stand in the way of decarceration — even while the deadly virus spread quickly through jails and prisons — the overall impact was a rapid reduction in the sizable population of jailed people whose incarceration had no clear public safety rationale.

But as the United States faces continued outbreaks of COVID-19, it is crucial to recognize that decarceration has still been inadequate, from both a public safety and a public health perspective.  Future COVID-19 responsive policies should focus on facilitating the release of much broader categories of people and avoiding arrests and bookings that would refill jails.  In the immediate term, further reducing jail populations would help to slow or stop the continued spread of the virus inside and outside jail facilities, and it could also help reduce correctional spending as state and local budgets shrink.  In the long-term, this could enable an enduring shift of resources away from law enforcement and punishment and toward public services and responses. Such a policy approach would move the country toward ending both mass incarceration and the social and economic harms it inflicts on poor, Black, and brown communities.

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

Tuesday, August 25, 2020

Spotlighting the still sorry state of federal prisons six months into a COVID pandemic

It has now be almost a full six months since my first post here flagging concerns about the intersection of incarceration and coronavirus, and since then I have covered this challenging story in dozens more posts. But the Washington Post has this notable new piece highlights that prison nation still has big COVID problems, and that matters seem to be even worse in federal prisons than in state systems. The piece is headlined "Prisoners and guards agree about federal coronavirus response: ‘We do not feel safe’," and here are excerpts:

Kareen “Troy” Troitino spent all of July working in a prison medical facility just as the coronavirus was surging through Miami’s Federal Correctional Institution, where the number of confirmed cases ballooned from a handful of prisoners to nearly 100 in a matter of days.  When he returned to work at FCI Miami in August, he was caught off guard when the prisoners welcomed him back with a laudatory uproar he said “sounded like the Super Bowl.”

Word had circulated among prisoners in the 1,000-person low-security facility that Troitino, a corrections officer and union president, was telling reporters, lawmakers and managers that despite assurances, the Bureau of Prisons’ response to the coronavirus pandemic was endangering the lives of federal employees and prisoners alike.  Troitino, who spoke to The Washington Post as a representative of his union, acknowledged that prisoners and guards don’t always find themselves on the same team; but in a pandemic, everyone’s fates are intertwined.  “All of us are trying to survive,” Troitino said.  “Your health affects me, and vice versa. Inmates and staff, we do not feel safe.”

Troitino is among the federal workers suing the government for hazard pay over what they say are risky conditions they’re forced to work under during the pandemic — but he’s hardly a disgruntled worker.  When the BOP announced Aug. 5 it had moved into Phase 9 of its covid-19 action plan, prisoners and their advocates panned the news as the bureau’s attempt to create the impression that the virus is under control in facilities while papering over a deepening health and safety crisis.

BOP Director Michael Carvajal has dismissed scrutiny of the bureau as “misinformation.” During a June Senate Judiciary Committee hearing on covid-19 best practices for prisons and jails, Carvajal testified that the bureau was well-prepared and that the Centers for Disease Control and Prevention had praised the bureau after evaluating unspecified facilities in the early months of the pandemic.  As of June 1, Carvajal said 1,650 federal inmates and 171 bureau staff had tested positive.  Less than 12 weeks later, those numbers grew to 11,953 prisoners and 1,436 staff, with more than 120 combined deaths, according to UCLA’s Covid-19 Behind Bars Data Project.

Covid-19 cases are proportionally higher and have spread faster in prisons than in the outside population, said Brendan Saloner, an associate professor at Johns Hopkins Bloomberg School of Public Health who is studying the issue. Saloner told The Post federal public defenders contacted his team with troubling details from clients. “Their contention is that it’s worse in the BOP than in the state prisons,” he said....

Interviews with a dozen federal prison employees, prisoners, lawyers and health and legal experts who monitor correctional facilities, as well as reviews of lawsuits and petitions filed by prisoners and collected from the UCLA data project, show the ways by which the pandemic has exacerbated existing problems in federal prisons; they range from overcrowding and staff shortages to a lack of transparency around policies for personal protective equipment (PPE) and testing.

“It’s a complete disaster,” said Rob Norcross, an inmate at the minimum-security satellite camp at FCI Jesup in Georgia. The bureau’s stated guidelines about sanitization and social distancing don’t comport with reality, Norcross said: Prison camp inmates are barred from using hand sanitizer, lack cleaning supplies and have nowhere they can move to to create space....

Norcross’s complaints mirror those in a July report by the DOJ’s Office of Inspector General about conditions at a federal prison in Lompoc, Calif.: The OIG reported several issues, including a shortage of medical staffers to address prisoner health concerns and instances where prisoners who clearly exhibited covid-19 symptoms were not tested.  The areas where the Lompoc facility scored the lowest were related to adequate PPE supply for staff and prisoners, and adequate soap or hand sanitizer for prisoners.

Sen. Elizabeth Warren (D-Mass.) ... sent Carvajal letters demanding answers on testing and transparency. Warren and several congressional Democrats introduced a bill Aug. 6 that would require federal and local corrections facilities to collect and report comprehensive data on covid-19 infections and deaths. “Covid-19 is out of control in prisons and jails across the country — and the Trump Administration has failed to effectively manage this pandemic and protect the health and safety of incarcerated people, correctional staff, and the general public,” Warren said in the past week in a statement to The Post.

UCLA Law’s Sharon Dolovich, who leads the Covid-19 Behind Bars Data Project, echoed Warren’s criticism of the bureau, noting the data it does publish on coronavirus cases and deaths is non-comprehensive and opaque.  “The culture of secrecy that’s been allowed to develop in the nation’s prisons and jails over the past 40 years is antithetical to these institutions’ status in a democratic society,” she said.  “We have government officials who act as if this is their private information.”

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

Sunday, August 23, 2020

The new death penalty: COVID has now killed more US prisoners in months than the US death penalty has in the last two decades

The UCLA Covid-19 Behind Bars Data Project has been doing a terrific job keeping an updated count, via this spreadsheet, of confirmed COVID deaths of persons serving time in state and federal facilities.  As of the morning of Sunday, August 23, this UCLA accounting had tabulated 858 "Confirmed Deaths (Residents)." 

This considerable number is sad and disconcerting on its own terms, but it is even more remarkable given that it amounts to more prisoner deaths than has been produced by carrying out formal death sentences in the United States for the entire period from 2001 to 2020.  According to DPIC data, there were a total of 839 executions from the start of 2001 through today.

Of course, comparing capital punishment and COVID incarceration carnage is problematic in many ways.  All persons executed in the US in recent times have been convicted of the most aggravated forms of murder.  The majority of prisoners to die of COVID were not responsible for a death (although, as noted here, some persons on California's death row are part of the COVID prisoner death count).  In a few prior posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes.  Another such offender died just last week according to this BOP press release: Luis A. Velez contracted COVID in FCI Coleman this summer and died on August 18; he was only 58-year-old and had been in federal prison for five years (of a 13-year sentence) after his conviction of possession with intent to distribute meth.

Another problem with comparing capital punishment and COVID incarceration carnage relates to that correctional staff do not die from administering capital punishment, but many have died from COVID.  The UCLA spreadsheet currently reports "only" 72 "Confirmed Deaths (Staff).  I am pleasantly surprised that this number is not bigger, but I will be ever troubled by the thought it could have been much lower along with the prisoner death number if more aggressive depopulation efforts were taken to more the most vulnerable and least risky offenders out of the super-spreader environment that prisons represent.

A few of many prior related posts:

August 23, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (9)

Friday, August 21, 2020

"Unmuted: Solutions to Safeguard Constitutional Rights in Virtual Courtrooms and How Technology Can Expand Access to Counsel and Transparency in the Criminal Justice System"

The title of this post is the title of this timely new paper now on SSRN authored by Matt Bender. Here is its abstract:

A defendant’s fundamental right to a public trial, and the press and community’s separate right to watch court have been threatened by the shift to virtual hearings. These independent constitutional rights can be in harmony in some cases and clash in others.  They cannot be incompatible.  Public interest in criminal justice transparency is increasingly crystallized, but courts have often become more opaque, which jeopardizes First and Sixth Amendment rights.

This paper addresses the conflict and confronts a key question: how can we be assured that remote and virtual hearings like Zoom arraignments or trials guarantee the same rights as traditional court hearings?  Instead of rejecting virtual criminal hearings outright, new proposals are offered for how virtual courtrooms can safeguard constitutional rights.  The prevailing belief that criminal defendants should reject virtual trials is questioned.  Virtual trials may lead to better outcomes for defendants than traditional trials, specifically during the ongoing pandemic.  Beyond preserving rights in a virtual courtroom, the ways technology can improve the criminal justice system are explored.

Through an analysis of existing indigent defense and First Amendment scholarship, the myth that traditional court decorum should trump open court and virtual hearings is addressed.  Judicial legitimacy and transparency may benefit when criminal cases are accessible on virtual platforms or livestreamed.  Transparency can help safeguard defendants’s rights and improve indigent clients’s representation and outcomes.  Instead of disrupting the courtroom — whether a hearing is virtual or traditional — convenient public access helps a community learn more about the criminal justice system and evaluate cases, judges, and attorneys.

These proposals have significant implications for courts and clients by providing a framework for virtual litigation, and leveraging technology for a more equitable criminal justice system.  Livestreams and virtual, remote hearings can improve the right of representation for indigent defendants by increasing access to quality counsel, reducing costs, creating a more competitive legal market, and expanding a client’s choice of attorneys.

August 21, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (0)

Ugly COVID headlines and stories not stopping in incarceration nation

It has now been a couple of weeks since I did a round-up of prison-COVID press pieces.  Thankfully, the press and commentators keeping reporting and discussing the discouraging tales that keep emerging from our prisons and jails, and here is a round-up of just a few recent headlines and pieces:

From ABC News, "'Who is going to man the prison if everyone tests positive?' Corrections officer union warns of dual threat facing federal prisons"

From the Detroit Free Press, "Nearly half the population at Michigan prison tests positive for COVID-19"

From Forbes, "A Look Inside A Federal Prison With Covid-19: FCI Seagoville"

From The Guardian, "'Severe inhumanity': California prisons overwhelmed by Covid outbreaks and approaching fires"

From MarketWatch, "U.S. taxpayers already pay a high price to support America’s giant prison population. Now COVID-19 is costing them even more"

From the Miami Herald, "Rubio demands answers from Barr on sexual abuse, COVID response at Florida prison"

From the Phoenix New Times, "'We Are Not Animals': Prisoner Slams State Response to COVID-19 Outbreak"

From the Sacramento Bee, "Folsom Prison COVID-19 cases double, now California’s largest active inmate outbreak"

From the Seattle Times, "Virus outbreak at Washington State Penitentiary, and the response, alarm inmates’ friends and family"

From STLtoday.com, "COVID-19 cases in Missouri prison system increase 50% in less than a month"

August 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, August 20, 2020

Federal prison population, per BOP report of "Total Federal Inmates," now down to 156,415

Regular readers may have noticed that this month I stopped doing my regular Thursday morning updates on COVID-era changes in the federal prison population based on the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers. I did because the numbers through the end of July suggested that the federal prison population was getting closer to flattening out with weekly declines that were becoming considerably lower than in previous months. But I will still post episodically on this topic because the BOP population is still declining and this story still remains significant.

As I have noted before via this post, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; through June, as detailed here, declines continued at a slightly reduced rate of about 950 fewer persons reported in all federal facilities on average per week.  But by the tail end of July, as noted here, weekly reported population declines were trending under 500.

My post on July 30 noted that the federal population was at a another new historic low with the new BOP reported "Total Federal Inmates" at 157,862.  Three weeks later we have hit another new historic low,and we seem to keeping the pacing at reductions of just under 500 per week, as the new BOP numbers at this webpage report "Total Federal Inmates" at 156,415. I still suspect that more COVID-delayed sentencings and stalled federal prison transfers continued to account for these declines; but the lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard to be sure just what the reported population numbers represent. 

I am hopeful that we will eventually get some sentencing data from the USSC that can help us better understand these prison data, but now nearly six months into the pandemic the USSC still seems in no rush to provide any inkling of how the federal criminal sentencing process has been impacted. Grrr.

A few of many prior related posts:

August 20, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, August 19, 2020

"COVID-19, Incarceration, and the Criminal Legal System"

The title of this post is the title of this short new paper authored by Jessica Bresler and Leo Beletsky now available via SSRN.  Here is its abstract:

Even before the pandemic, contact with the criminal legal system resulted in health harms on both individual and community levels, with disproportionate impact on people of color.  The COVID-19 crisis magnified the deleterious public health impact of policing, prisons, community supervision, and other elements of the United States’ vast system of control and punishment. 

Despite the scientific consensus that prisons and jails needed to be rapidly depopulated to avert disaster, the number of people released has remained small, resulting in explosive outbreaks of COVID-19 behind bars.  Depopulation of correctional settings is also rarely paired with meaningful efforts to connect reentering individuals to vital supports. Community supervision systems failed to relax onerous probation/parole requirements, while police have taken on enforcement of physical distancing and other public health orders. Even as COVID-19 is raging, the criminal legal system is resisting changes necessary to facilitate pandemic response.

With a focus on incarceration, this Chapter provides an overview of how the U.S. criminal legal system has shaped its COVID-19 response, situating prescriptions in the current debate about divestment from structures of social control in favor of a renewed focus on the social contract.  This Chapter will discuss (1) how the criminal legal system has exacerbated the current public health emergency and (2) how the United States can use this moment to reform this system and its legal underpinning.  This paper was prepared as part of Assessing Legal Responses to COVID-19, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association.

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

Tuesday, August 18, 2020

New research details uptick in domestic violence calls to police in early COVID period

I noted a few weeks ago that the Council on Criminal Justice (CCJ) — which is a favorite new organization in part because they asked me to take a close look at the 1994 Crime Bill's sentencing provisions and because they recently produced a great report urging criminal justice reforms — has launched an important and impressive new commission to assess the impacts of COVID-19 on the criminal justice system (basic details here).  Today via that CCJ commission comes new research on domestic violence calls for service.  This six-page research brief, authored by Profs Emily Leslie and Riley Wilson,  is titled "Sheltering in Place and Domestic Violence: Evidence from Calls for Service during COVID-19," and here is its overview:

The worldwide COVID-19 pandemic has pushed people to spend more time at home, amidst increased uncertainty and soaring unemployment rates.  The best available evidence tells us that these conditions have the potential to increase domestic violence (Lindo et al., 2018; Card and Dahl, 2011).  News outlets around the world reported increased reports of domestic violence as the pandemic spread globally during Spring 2020.

We use data on calls for service to the police from 14 large American cities to compare domestic violence calls before and after the pandemic began in the United States, relative to trends during the same period in 2019.  The pandemic led to a 7.5% increase in calls for service during March, April, and May.  The biggest increase came during the first five weeks after widespread social distancing began, when domestic violence calls were up 9.7%.  State-mandated stay-at-home orders and school closures came later, suggesting the increase was not only a response to shelter-in-place policies.  The increase came across a broad range of demographic and socioeconomic groups, and includes households without a recent history of domestic violence calls.

August 18, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

Monday, August 17, 2020

"COVID and Crime: An Early Empirical Look"

The title of this post is the title of this notable new paper authored by David Abrams and just posted to SSRN. Here is its abstract:

We collect data from over 25 large cities in the U.S. and document the short-term impact of the COVID-19 pandemic on crime.  There is a widespread immediate drop in both criminal incidents and arrests most heavily pronounced among drug crimes, theft, residential burglaries, and most violent crimes.  The decline appears to precede most stay-at-home orders, and arrests follow a similar pattern as reports.  We find no decline in homicides and shootings, and an increase in non-residential burglary and car theft in most cities, suggesting that criminal activity was displaced to locations with fewer people.  Pittsburgh, New York City, San Francisco, Philadelphia, Washington DC and Chicago each saw overall crime drops of over 35%.  There was also a drop in police stops and a rise in Black detainee share in Philadelphia, which may reflect the racial composition of essential workers. Evidence on police-initiated reports and geographic variation in crime change suggests that most of the observed changes are not due to reporting changes.

August 17, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

Thursday, August 13, 2020

"'Con Air' Is Spreading COVID-19 All Over the US Prison System"

The title of this post is the title of this notable new article from VICE News and The Marshall Project. Here is an excerpt:

The U.S. Marshals Service is responsible for moving people into, out of, and among far-flung federal prisons, handling most long-distance transfers and newly sentenced prisoners. It doesn’t put people in quarantine or give them virus tests before transporting them around the country.  As a result, federal prisoners in Marshals custody are being shipped around the U.S. by plane, van, and bus with no way to know if they are carrying the virus, exposing other prisoners, staff, and possibly the public along the way.

According to whistleblower complaints obtained by VICE News and The Marshall Project, federal prisoners infected with the coronavirus have been shipped as far as Puerto Rico in recent weeks, and to federal lock-ups in Alabama and Florida.  Bureau of Prisons employees say prisoners have also tested positive after being shuffled around to facilities in Colorado, Illinois, Texas, Oklahoma, Pennsylvania, and Louisiana.

“It’s horrible,” said Anthony Koeppel, a local official with the staff union at Pollock. “It’s putting staff at risk, it’s putting inmates at risk, and it’s putting the community at risk. We’re talking about lives here. This is an extremely dangerous situation.”

The Marshals say they aren’t required to do any testing because “an agreement was made” that the Bureau of Prisons would handle tests and quarantines once prisoners are transferred into its lock-ups. The BOP did not respond to requests for comment.  A spokesperson for the Justice Department, which oversees both agencies, said they “have taken, and will continue to take, aggressive steps to protect the safety and security of all staff, inmates, visitors, and members of the public.”

Transferring prisoners who turn out to be sick has been a problem at prisons across the country.  In California, the San Quentin State Prison went from zero coronavirus infections in late May to more than 2,200 confirmed cases and 26 deaths in early August after prisoners were moved in from a known hotspot without being tested.

Staff and prisoners have blamed transfers for helping the coronavirus wreak havoc across the Bureau of Prisons, killing 111 prisoners and at least one staff member, and infecting over 10,000 prisoners and 1,200 workers in America’s largest network of prisons and jails. The agency officially halted most movement of prisoners in March in an effort to limit the spread of the virus; when it does transfer prisoners itself, it requires them to undergo coronavirus testing and a 14-day quarantine before and after being moved.

But the Marshals don’t abide by those rules — and they keep moving people.  While transfers have slowed — down 76% from April to July compared to the same period last year, according to the Marshals — they never truly stopped. That’s partly due to federal courts and law enforcement agencies pumping thousands of new people into the system.

August 13, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Wednesday, August 12, 2020

Latest disconcerting COVID data concerning incarcerated people and corrections staff

The CSG Justice Center has this new and disheartening data update under the heading "New COVID-19 Cases in State Prisons Surge in July."  Here are the highlights (really lowlights) from the brief report:

As states grapple with the coronavirus pandemic, they are adopting different responses and seeing different outcomes. This has led to peaks and valleys in the number of new cases in each state since early April.

Cases inside state prison systems tell a similar story, but more dramatically. COVID-19 cases continue to rise among incarcerated people and corrections staff who live and work in state prisons, and the trajectory largely follows that of the general population. July, in particular, was marked by a sharp increase in new COVID-19 cases, especially among people who work in state correctional facilities.

Here are three takeaways from The Council of State Governments Justice Center’s latest analysis:

1. Various state-level shelter-in-place orders in April and May appeared to contain and curb the outbreak in state prisons for both incarcerated people and corrections staff; however, as these orders were lifted, new COVID-19 cases increased across the board.

2. While four times as many incarcerated people have contracted COVID-19 as compared with corrections staff, cases are growing fastest among corrections staff....

3. Between July 26 and August 9, the total number of reported COVID-19 cases among people incarcerated in state prisons grew by over 17,000.

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

Monday, August 10, 2020

A global look at pandemic-driving decarceration realities

Vice has this notable new piece headlined "COVID Has Reduced Prison Populations Around the World—Creating a Rare Chance to Fix the System."  The subheadline summaries its coverage: "The United States, United Kingdom, Australia and Europe have all reported significant decreases in prisoner numbers since the pandemic began.  Experts want it to stay that way." And here are excerpts:

A number of countries — including the United States, the United Kingdom and Australia — have reported major decreases in prisoner numbers as a result of pandemic-related factors such as reductions in crime, more leniency from authorities on bail applications, and tighter regulations around incarceration.  Legal experts have heralded the statistics as a cause for optimism, while at the same time warning that the numbers could rise again once societies return to some semblance of the old normal.  And many have therefore suggested that, if nothing else, the coronavirus pandemic could signal an opportunity for nations to rethink the way they operate their criminal justice systems.

These are the facts. Between March and June, more than 100,000 people were released from state and federal prisons in the United States—a decrease of 8 percent, according to a nationwide analysis by The Marshall Project and The Associated Press.  In the whole of 2019, that same prison population decreased by just 2.2 percent.

Between March and July, 4,435 people were released from prisons in England and Wales — a decrease of about five percent. Between March and June, France released some 14,000 inmates — a decrease of about 23 percent — and between February and May, Italy, one of the first countries to experience the devastation of the pandemic on a national scale, released some 7,850 inmates — a decrease of about 15 percent.

Australia, meanwhile, saw the adult prison population drop by almost 11 percent in the state of New South Wales between mid-March and mid-May, and almost 13 percent in the state of Victoria between the end of February and the end of June.  These are the two most populous states in the country, as well as the two worst-affected by COVID-19....

Taken altogether, these figures reveal that the global pandemic has, overall, led to a positive development in the way criminal justice systems operate around the world.  The disruptions caused by COVID-19 have meant less people being incarcerated and detained unnecessarily.  And experts are calling for it to stay that way.

“This is absolutely a chance for countries to rethink the way they run their justice system,” Professor Lorana Bartels, Program Leader of Criminology at the Australian National University, told Vice News via email. “It should compel renewed attention to addressing underlying factors that contribute to crime and reoffending, including insecure housing, mental health (in particular, trauma), substance abuse, education, and employment.

“Especially as economies struggle, finding equally effective but much cheaper alternatives to prison will be imperative.”...

“This is a positive development,” said Professor Bartels. “There is no clear link between imprisonment rates and crime rates, and these decreases are a reminder that an inexorable rise in our use of imprisonment is neither beneficial, nor inevitable… there are better (and cheaper) ways of approaching criminal justice issues.”

August 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentencing around the world | Permalink | Comments (0)

Saturday, August 08, 2020

Making sure not to look past or become numb to persistently ugly pandemic realities in incarceration nations

It has now been a couple of weeks since I did a round-up of prison-COVID press pieces. To their credit, the press and commentators keeping reporting and discussing the discouraging tales that keep emerging from our prisons and jails.  But I cannot help but find, as we enter the sixth month of this pandemic, that it has become disconcertingly easier to become numb to these persistently depressing stories.  Eager not to look past these still critical realities, here is a round-up of just a few headlines and pieces catching my eye recently:

From CBS News, "More than 500 inmates at Arizona prison test positive for COVID-19, according to corrections officials"

From the Chicago Tribune, "2 dead at Marion federal prison during COVID-19 surge despite restrictive conditions, say inmates and family members"

From the Cincinnati Enquirer, "COVID cases climb in Ohio prisons, worrying families and those employed to serve prisoners"

From CNN, "Inside the federal prison where three out of every four inmates have tested positive for coronavirus"

From Forbes, "As Bureau of Prisons Enters “Phase 9” Of COVID-19 Plan, BOP Staff Wonder If There Is A Real Plan"

From News Junkie, "Prisons and Parties Drive Connecticut’s Coronavirus Case Numbers"

From the Orlando Sentinel, "Many who have died of COVID-19 in Florida’s prisons were eligible for parole"

From the Washington Post, "The Federal Bureau of Prisons response to the coronavirus has been disastrous and deadly"

August 8, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Friday, August 07, 2020

Notable Prison Policy Initiative update on pandemic changes to prison and jail populations

Prison Policy Initiative published yesterday this great updated analysis (with lots of helpful charts and data visuals) of jail and prison populations changes amid the pandemic.  The full title of this publication captures the essence of the analysis: "Jails and prisons have reduced their populations in the face of the pandemic, but not enough to save lives:  Our updated analysis finds that the initial efforts to reduce jail populations have slowed, while the small drops in state prison populations are still too little to save lives."  Here are some of the data highlights:

At a time when more new cases of the coronavirus are being reported each day, state and local governments should be redoubling their efforts to reduce the number of people in prisons and jails, where social distancing is impossible and the cycle of people in and out of the facility is constant.  But our most recent analysis of data from hundreds of counties across the country shows that efforts to reduce jail populations have actually slowed — and even reversed in some places.

Even as the pandemic has spiked in many parts of the country, 71% of the 668 jails we’ve been tracking saw population increases from May 1st to July 22nd, and 84 jails had more people incarcerated on July 22nd than they did in March.  This trend is particularly alarming since we know it’s possible to further reduce these populations: in our previous analysis, we found that local governments initially took swift action to minimize jail populations, resulting in a median drop of more than 30% between March and May.

Meanwhile, state prisons — where social distancing is just as impossible as in jails, and correctional staff still come and go every day — have been much slower to release incarcerated people.  Since January, the typical prison system had reduced its population by only 5% in May and about 13% as of July 27th....

Some states’ prison population cuts are even less significant than they initially appear, because the states achieved those cuts partially by refusing to admit people from county jails.  (At least two states, California and Oklahoma, did this.)
While refusing to admit people from jails does reduce prison density, it means that the people who would normally be admitted are still incarcerated, but in different correctional facilities that have more population turnover and therefore more chances for the virus to spread.

Other states are indeed transferring people in prison to outside the system, either to parole or to home confinement, but these releases are not enough to protect vulnerable incarcerated populations from COVID-19.  For example, in California, thousands of people have been released weeks and months early, but the state’s prison population has only decreased by about 11% since January, leaving too many people behind bars in the face of a deadly disease.

Of the states with available data, the smaller systems have reduced their populations the most drastically. North Dakota’s prison population had already dropped by 19% in May. (North Dakota was also the state that we found to have the most comprehensive and realistic COVID-19 mitigation plan in our April 2020 survey.) Two months later, North Dakota has continued these efforts, reducing its prison population by a total of 25% since January, a greater percent change than any other state.

August 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Effective review of messiness of federal compassionate releases amidst COVID

BuzzFeed News has this great lengthy new piece on the messy realities of federal compassionate release realities during the pandemic. The full headline of the piece, which I recommend in full, provides a summary: "'I Had Hit The Lottery': Inmates Desperate To Get Out Of Prisons Hit Hard By The Coronavirus Are Racing To Court: With little legal precedent for a global pandemic, judges are deciding on a case-by-case basis how to weigh the risks of COVID-19 in prisons."  Here is an excerpt:

A BuzzFeed News review of more than 50 cases filed in the federal district court in DC showed that with little precedent for a flood of release requests during a pandemic, decisions about who gets out of prison and who does not can appear arbitrary. Prisoner advocates and defense lawyers say these cases can come down to the luck of the draw, with some judges proving to be more sympathetic than others.

Judges are making medical assessments about how much of a threat COVID-19 poses to an individual inmate and then deciding how to balance that against the public safety risk of sending that person back into the community; inmates are usually released to home confinement or under the supervision of a probation officer. And judges are reaching different conclusions about how to measure an inmate’s risk of exposure in state and federal prisons, which have seen some of the worst clusters of COVID-19 cases nationwide.

Boykin is one of more than 800 inmates who have been granted compassionate release by a federal judge since March, according to data from the Federal Bureau of Prisons. Another 7,000 federal inmates have been released by the BOP to home confinement in the same period, after Attorney General Bill Barr directed the bureau to prioritize using its own release power for eligible inmates to minimize the spread of COVID-19. More than 150,000 federal inmates remain incarcerated.

Thousands of inmates are still exploring options to get out. Families Against Mandatory Minimums, just one of the groups that connect inmates with pro bono legal assistance, has fielded more than 3,000 requests for help since the start of the pandemic. They’ve been able to match approximately 1,200 inmates and family members with lawyers.

“We were hoping ... that judges would not want to be a party to this ongoing, slow massacre in the prisons. And they’re not, and that’s good,” said FAMM President Kevin Ring. However, he said, when it comes to how judges are analyzing release requests, “it’s not consistent across jurisdictions — there are some judges who have been stricter and some who have been more lenient.”

August 7, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, August 05, 2020

By 5–4 vote, Supreme Court stays Orange County jail to implement certain COVID safety measures

This evening the Supreme Court, voting 5-4 along the "usual" lines, issued a stay to block an order requiring a local jail in California to implement certain safety measures to provide greater COVID protection to inmates.  The majority's order is just a paragraph and includes no reasoning, but Justice Sotomayor's eight-page dissent has a lot to say.  Here is how it starts and ends:

Today, this Court steps in to stay a preliminary injunction requiring Sheriff Don Barnes and Orange County (collectively, the Orange County Jail, or Jail) to implement certain safety measures to protect their inmates during the unprecedented COVID–19 pandemic.  The injunction’s requirements are not remarkable.  In fact, the Jail initially claimed that it had already implemented each and every one of them.  Yet, apparently disregarding the District Court’s detailed factual findings, its application of established law, and the fact that the Court of Appeals for the Ninth Circuit has twice denied a stay pending its review of the District Court’s order, this Court again intervenes to grant a stay before the Circuit below has heard and decided the case on the merits....  The Jail’s application does not warrant such extraordinary intervention.  Indeed, this Court stays the District Court’s preliminary injunction even though the Jail recently reported 15 new cases of COVID– 19 in a single week (even with the injunction in place), even though the Jail misrepresented under oath to the District Court the measures it was taking to combat the virus’ spread, and even though the Jail’s central rationale for a stay (that the injunction goes beyond federal guidelines) ignores the lower courts’ conclusion that the Jail’s measures fell “well short” of the Centers for Disease Control and Prevention (CDC) Guidelines...

At the time of the injunction, there were nearly 3,000 inmates still in the Jail’s care, 488 of whom were medically vulnerable to COVID–19.  “[H]aving stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials” must “‘take reasonable measures to guarantee the[ir] safety.’”  Farmer, 511 U.S., at 832–833; see also Valentine v. Collier, 590 U.S. ___, ___–___ (2020) (statement of SOTOMAYOR, J.) (slip op., at 6–7) (“It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm”).  The District Court found that, despite knowing the severe threat posed by COVID–19 and contrary to its own apparent policies, the Jail exposed its inmates to significant risks from a highly contagious and potentially deadly disease.  Yet this Court now intervenes, leaving to its own devices a jail that has misrepresented its actions to the District Court and failed to safeguard the health of the inmates in its care.  I respectfully dissent.

August 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Advocacy groups urge Congress to include provisions to safeguard incarcerated persons in latest COVID bill

COVID19-State-Prisons-5AUG20-2048x1152A variety of leading advocacy groups sent this detailed letter to congressional leaders yesterday to advocate for "critical provisions to protect the health and safety of incarcerated individuals in the COVID-19 response package currently being negotiated."  Here is a portion of the first part of the six-page letter:

While the Coronavirus Aid, Relief, and Economic Security (CARES) Act expanded the Federal Bureau of Prison’s (BOP) authority to release individuals to home confinement, BOP and the Department of Justice (DOJ) have failed to exercise this authority. BOP and DOJ have been negligent in meeting Congress’ charge to quickly and safely reduce the prison population and minimize the spread and harm of COVID-19 for incarcerated persons and correctional staff.  Therefore, more is urgently required to address the alarmingly high infection rates occurring in correctional facilities across the nation.

As Congress works to provide additional relief for individuals impacted by the pandemic, it has a moral obligation to extend that relief to all of our most vulnerable — the elderly, the sick, those without medical care, and those unable to protect themselves from the virus — including those who are incarcerated.  We urge you to prioritize the health and wellbeing of incarcerated people and their families by incorporating the five recommendations outlined below in the next stimulus package.

The letter closes with detailed advocacy for these five action items:

It is therefore absolutely critical that Congress act swiftly to address the issues facing incarcerated individuals in the next COVID-19 relief package.  At a minimum, such legislation should include:

1. Provisions that will dramatically reduce pretrial and prison populations....

2. An expansion of court authority to release individuals in BOP Custody....

3. Increases in the availability of home detention for elderly people....

4. Provisions that facilitate essential communication with counsel....

5. Additional support at the federal, state, and local level to prevent, prepare for, and respond to coronavirus....

UPDATE: I just saw this notable new posting by The Council of State Governments Justice Center which highlights the continued urgency of these issues (and has the graphic I have added to this post).  The analysis is titled "COVID-19 Cases in State Prisons Grew by 12 Percent Every Week Last Month," and here is how it begins:

A new analysis by The Council of State Governments Justice Center shows that states are continuing to battle the growing spread of COVID-19 in their correctional facilities, with the number of positive cases in prisons rising 12 percent each week over the last month.

While states with some of the largest prison populations — such as Texas, California, Florida, Georgia, and Ohio—are seeing cases increase, Arkansas, Tennessee, and Delaware appear to have the highest proportion of COVID-19 infections among people incarcerated in their state prisons.

The following graph shows how the total number of cases is growing in state prisons across the country, and the maps below offer state-by-state data on how the virus is taking shape in these facilities.

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

Monday, August 03, 2020

Important reminders that federal prisons remain problematic and deadly COVID hotspots

Today my inbox got two dispiriting reminders that federal prisons are still struggling in many awful ways with the coronavirus pandemic.  One reminder came from this new Washington Post piece headlined "Frail inmates could be sent home to prevent the spread of covid-19.  Instead, some are dying in federal prisons." I recommend the full piece (which discusses numerous compassionate release cases), and here are excerpts:

The Bureau of Prisons said 25 people have died in its custody this year while their requests for sentence reduction were under consideration, including 18 since March 1, around the time the coronavirus began spreading in U.S. communities.

To fight the virus’s spread, Attorney General William P. Barr in late March directed federal prisons to send vulnerable, low-risk inmates to home confinement or release them outright. According to the Bureau of Prisons website, about 7,000 inmates, or about 4 percent of its 160,000-inmate population, have been sent home since.

But the bureau has largely disregarded one method it has to release inmates, a procedure that seems ideally suited for the coronavirus pandemic — compassionate release. Part of bipartisan legislation passed in 2018, compassionate release was intended as a way to swiftly grant release to inmates who are terminally ill or for other “extraordinary and compelling reasons.” Yet even as it has released some prisoners to home confinement, the bureau routinely has opposed or not responded to requests for compassionate release.

In 50 cases decided in early July, for example, the bureau opposed 38 compassionate release requests or did not respond to them, and the requests were denied by courts, which make the final decision. The bureau also opposed 10 cases that courts eventually granted. Only in two cases did the agency agree to a release before a court intervened. In an email, bureau spokesman Justin Long said the bureau “has been proceeding expeditiously” on compassionate release requests....

The ACLU and other advocates for prisoners sued the bureau in May, seeking the release of as many Butner inmates as needed to allow for social distancing. “What’s alarming in all these institutional cases is how slow and sluggish the system has been to respond,” said Jonathan Smith of the Washington Lawyers’ Committee, which joined the lawsuit.

In a court document dated June 11, bureau officials said that since Barr’s guidance was released, 42 inmates at Butner — about 1 percent of the prison’s population — were transferred to home confinement, and nine were transferred to halfway houses. The number of compassionate releases from Butner was not readily available, BOP said.

A second reminder came in the form of this new fact sheet from the Federal Public Community Defenders titled "The Worsening COVID-19 Crisis in Federal Detention."  This two-page document (with lots of links) should also be read in full, and here is its opening paragraphs:

COVID-19 is ripping through the Federal Bureau of Prisons (BOP), infecting incarcerated individuals at a rate 5.95 times higher than the general population.  This crisis is occurring in a system that, due to structural racism, is disproportionately populated by Black and Hispanic people.  And Attorney General Barr and BOP are using a risk assessment tool (PATTERN) — that likely has an outsized negative impact on Black men — to prioritize eligibility for home confinement. The Department of Justice (DOJ) has not provided demographic data on the individuals BOP has approved for home confinement, despite congressional demands, and the only public data it has provided on PATTERN indicate just 7% of Black men qualify compared to 30% of white men. As the public rises to demand a reckoning with institutional racism, we cannot allow these conditions to persist.

On June 2, BOP Director Carvajal told Congress “We are beginning to flatten the curve.”  He was wrong.  BOP reports at least 107 deaths of incarcerated individuals.  The highest number of deaths in BOP prisons have occurred in Texas (currently the site of the three worst federal prison outbreaks in the country), North Carolina, California, Ohio, Kentucky, and Louisiana.  Some of these deaths were surely preventable.  BOP’s press releases reveal that the majority of these individuals — 83 — were known to be at higher risk of complications from COVID-19.  Over a quarter of the people who have died in BOP’s care were seventy years old or older. But they were never moved to a place of safety. And at least five died after asking — and some even being approved — for compassionate release or home confinement

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

Thursday, July 30, 2020

Federal prison population, per BOP reporting, now down to 157,862

Regular readers are used to my regular Thursday morning updates on COVID-era changes in the federal prison population based on the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers.  This week's update suggests again that the federal prison population might be getting closer to flattening out as we see a decline that is considerably lower than in weeks past.  But the decline continues and remains significant.

This prior post detailed that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; through June, as detailed here, declines continued at a slightly reduced rate of about 950 fewer persons reported in all federal facilities on average per week.  As of the last week of July, we have hit another new historic low with the new BOP numbers at this webpage reporting "Total Federal Inmates" at 157,862.  But this represents a decline of "only" 543 persons from last week's total of 158,405, which had been a decline of only 433 persons from the previous week's reported total.  Put another way, it took two weeks in the second part of July to see the roughly 1000 person drop in the prison population that we were seeing each week in earlier months. 

I remain inclined to guess that more COVID-delayed sentencings and stalled federal prison transfers may now be moving forward; but the lack of any real-time data from the US Sentencing Commission and the opaque nature of BOP data make it hard to be sure just what the reported population numbers represent.  I am hopeful that we will eventually get some sentencing data from the USSC that can help us better understand these prison data, but now five months into the pandemic the USSC still seems in no rush to provide any inkling of how the federal criminal sentencing process has been impacted. 

A few of many prior related posts:

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

Wednesday, July 29, 2020

Council on Criminal Justice launches "National Commission on COVID-19 and Criminal Justice"

Half-reverseThe Council on Criminal Justice (CCJ) — which is a favorite new organization in part because they asked me to take a close look at the 1994 Crime Bill's sentencing provisions and because they recently produced a great report urging criminal justice reforms — announced via this press release yesterday that they are launching an important and impressive new commission.  Here are the details:

The Council on Criminal Justice (CCJ) today launched a national commission to assess the impacts of COVID-19 on the criminal justice system, develop strategies to limit outbreaks, and produce a priority agenda of systemic policy changes to better balance public health and public safety.

Led by former U.S. Attorneys General Alberto Gonzales and Loretta Lynch, the National Commission on COVID-19 and Criminal Justice will:

  • Evaluate the pandemic’s impact on the four major sectors of the justice system (law enforcement, courts, corrections, and community programs);
  • Identify the most effective ways to minimize the spread of COVID-19 and the impact of future pandemics on the proper functioning of the justice system, and on the people who work in and are served by it; and
  • Establish a priority agenda of policies and practices that should change, or remain changed, based on what the pandemic and response have revealed about the system’s fairness and effectiveness, particularly for communities of color.

Given the serious health and safety risks created by the novel coronavirus, the Commission intends to work quickly, producing multiple interim reports before issuing final recommendations by the end of 2020.  The Commission also welcomes and will seek input from a wide variety of outside experts and stakeholders.  To submit written testimony, please visit the Commission’s website here [and here].  Opportunities to give oral testimony will be provided at later date.

“Our response to the pandemic will shape society and the justice system for generations. It’s critical that we learn from this crisis and make the right choices as we move ahead,”said Commission Co-Chair Gonzales, who served as Attorney General under President George W. Bush. “I look forward to working with Gen. Lynch and my other Commission colleagues to develop solutions that can make a difference immediately and well into the future.”

“Our nation’s criminal justice system has not been exempt from the devastating impact of COVID-19, with longstanding issues and concerns rising to the fore,” said Commission Co-Chair Lynch, who served as Attorney General under President Barack Obama. “Now, more than ever, we need solutions anchored in facts, science, sound judgment, and trusted experience, and the widely respected members of this Commission are ideally qualified to produce them.”

The Commission’s 14 members represent a diverse range of perspectives and experience.  Commissioners include current and former justice system leaders, elected officials, advocates, a leading incarceration researcher, a directly impacted individual, and a top public health specialist....

At its opening meeting today, the Commission was presented with the first in a series of reports presenting new research on COVID-19 and criminal justice.  The study by Richard Rosenfeld and Ernesto Lopez of the University of Missouri-St. Louis [available here], examined crime trends from 27 cities leading up to the pandemic and through June. It found that:

  • Property and drug crime rates fell significantly, coinciding with stay-at-home mandates and business closings.  Residential burglary dropped by 20% between February and June 2020. Larceny and drug offenses decreased by 17% and 57%, respectively, between March and June 2020.  These declines reflect quarantines (residential burglary), business closings (larceny), and reduced police and street activity (drug offenses).
  • One exception to the drop in property crime was commercial burglary, which spiked by 200% for a single week beginning in late May.  The spike is likely associated with the property damage and looting at the start of nationwide protests following the killing of George Floyd.
  • Rates of violent crime showed little change early in the pandemic but began to increase significantly in late May.  Homicides (37%) and aggravated assaults (35%) rose significantly in late May and June.  The increases could be tied to diminished police legitimacy in the wake of protests after Floyd’s killing.
  • Robbery rose significantly — by 27% — between March and June 2020.
  • Domestic violence also rose, but the increase was not significantly greater than in previous years.  In addition, the finding was based on data from only 13 of the cities studied, and thus requires further examination.

“The impacts of COVID-19 on the criminal justice system require rapid but rigorous analysis by a set of seasoned leaders and community stakeholders who understand the significance of this moment for the future well-being of our nation,”said Commission Director Thomas Abt, a CCJ senior fellow who served as Deputy Director of Public Safety for New York State and as chief of staff to the U.S. Department of Justice Office of Justice Programs.“It’s essential that we provide justice system leaders wrestling with COVID-19’s impacts with a roadmap based on evidence, data, and the wisdom of top experts. No organization is better positioned than CCJ to lead this vital effort.”

UPDATE: Paul Cassell has a new lengthy post here at The Volokh Conspiracy under the title "What Explains Why Homicides Are Increasing Significantly Across the Country Since Late May?".  This post takes a deep dive into this new CCJ report, and I recommend the post in full for its effort to fully understand and account for developing crime data.  Here is a paragraph from the latter part of the post:

Researchers should continue to investigate why homicides have been spiking in Chicago and other major cities across the country. If the answer is that de-policing is linked to rising gun violence (as some earlier studies would suggest), further limiting police efforts to aggressively deter gun crimes will tragically lead to more shootings and more homicides. And the victims of those crimes will likely come disproportionately from African-American communities—communities that, in some instances, may want more aggressive police efforts to combat gun crimes.

July 29, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Monday, July 27, 2020

"Decarceration and Crime During COVID-19"

The title of this post is the title of this notable new online report from the ACLU.  Here is how the short report gets started:

COVID-19 presents an enormous risk to those in carceral facilities and their surrounding communities. Since the pandemic began, more than 50,000 people in prison have tested positive for the coronavirus, and over 600 have died. These infections and deaths were largely preventable, as we demonstrated in April by working with academic partners to build an epidemiological model that illustrated the deadly threat of COVID-19 in jails. In response to this crisis — and in many localities, only after substantial public pressure and threats of litigation — some governors, sheriffs, and judges made the decision to shift detention policies to prioritize protecting the lives of those who live and work in jails and prisons. Some states and localities reduced low-level arrests, or set bail to $0 for certain charges. Others released a small subset of incarcerated people who were nearing the end of their term or were most vulnerable to the disease — sometimes under court order.

While no jail system has gone far enough, county jails and state prison systems across the U.S. have taken differing levels of action, allowing for a unique opportunity to explore the relationship between decarceration and crime in the community. To explore this, the ACLU’s Analytics team looked for data on jail population and crime in locations with the largest jail and overall populations. We were able to find reported data on both from 29 localities. (Crime data more recent than May was not readily available during analysis.)

Nearly every county jail that we examined reduced their population, if only slightly, between the end of February and the end of April. Over this time period, we found that the reduction in jail population was functionally unrelated to crime trends in the following months. In fact, in nearly every city explored, fewer crimes occurred between March and May in 2020 compared to the same time period in 2019, regardless of the magnitude of the difference in jail population.

We found no evidence of any spikes in crime in any of the 29 locations, even when comparing monthly trends over the past two years.  The release of incarcerated people from jails has saved lives both in jails and in the community, all while monthly crime trends were within or below average ranges in every city. 

July 27, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Looking for broader relief and reforms for elderly prisoners in wake of Roger Stone clemency

In recent posts here and here, I have stressed the fact that Prez Trump's explained his decision to commute Roger Stone 's prison sentence in part by stressing that he "is a 67-year-old man, with numerous medical conditions" who "would be put at serious medical risk in prison" and "has already suffered greatly."  Those sound sentencing considerations could and should help justify releasing from prison many more (lower-profile) elderly offenders these days, and the latest issue of the Federal Sentencing Reporter highlights the humanitarian and fiscal reasons why the aging of our prison populations was a pressing concern even well before anyone had heard of COVID-19.

I note these posts and points again because of this effective new Law360 piece headlined "After Stone Clemency, Activists Rally For Elder Parole."  I recommend the piece in full, and here are excerpts:

While Democrats and even some Republicans have questioned the ethics of Trump's decision [to commute Stone's prison term], others have highlighted how the same logic should be applied to thousands of other aging people, many of whom have actually served years and even decades of their sentences.... Roughly 288,800 people over age 50 currently live in state and federal prisons, and an estimated 70% of them have a current chronic illness or serious medical condition, according to the Alliance for Safety and Justice.

Older people make up the fastest-growing population within U.S. state and federal prisons, which have become hot spots for the viral contagion that is increasingly deadly the older its host.  A recent study found that people in prison are 550% more likely to get COVID-19 and 300% more likely to die from it.  So far, at least 625 imprisoned people have died from the virus.

Criminal justice reformers aiming to decrease the country's world-leading incarceration rate have advocated for years that aging people should be considered for early release or parole, considering the often inadequate health care available in correctional facilities as well as the fact that, generally speaking, the older you are, the less likely you are to commit another crime. Older people also cost more, per capita, to incarcerate.

Those calls have been amplified in the wake of widespread protests against racial injustice in the legal system. Last week, hundreds of New Yorkers marched in Manhattan to demand the state Legislature pass a package of bills, including one that would make people who've served at least 15 years eligible for parole at age 55. A related bill would grant parole to anyone eligible unless there is "a current and unreasonable risk" the person would break laws if released....

One of the easiest methods of releasing people, including the elderly, from dangerous prisons is the executive clemency power, which some governors have wielded more widely during the pandemic.  Illinois Gov. J.B. Pritzker, for example, has commuted more than 20 state prisoners' sentences since March.  In his first year in office, he commuted just three sentences.  In April, New Mexico Gov. Michelle Grisham commuted the sentences of 46 people convicted for low-level crimes who were within 30 days of being released; Oklahoma Gov. Kevin Stitt commuted 450 sentences that same month.

But while some governors have been actively exercising clemency powers, Trump's commutation for Stone marked his first since declaring a pandemic.  Stone reportedly has asthma and a history of respiratory conditions that makes him vulnerable to COVID-19; in late June, he posted social media videos saying "incarceration at a facility with COVID-19 during a pandemic is a deep state death sentence."...

Instead of granting more people clemency, Trump's response to the threat COVID-19 poses to people in prison has come via U.S. Department of Justice policies.  In March, his administration instructed the Bureau of Prisons to release more people to home detention and to consider the medical risks of holding people in pretrial detention amid rising prison COVID-19 infection counts.  According to a BOP spokesperson, 6,997 people have been placed on home confinement in response to the COVID-19 pandemic — approximately 4% of the federal prison system's 158,838-person population.

Another method of release during the pandemic has been "compassionate release," a sentence reduction typically reserved for the terminally ill or severely medically compromised.  The 2018 First Step Act, Trump's signature criminal justice achievement, made it easier to seek such releases, but only about 150 people were able to take advantage over the first 14 months of the law.  During the pandemic, that number has more than quadrupled as incarcerated people, judges and even prosecutors have mobilized to decrease prison populations, but the grand total of 776 is still a fraction of of the BOP's 158,838-person population — 20% of which is people over age 51, four months into a deadly pandemic....

Judges, for their part, have "definitely been more willing to grant compassionate release due to COVID-19," according to Amy Povah, a formerly incarcerated activist who runs Can-Do Clemency. But she added that some judges are still denying release, even in cases where people are particularly at risk of infection. "We're extremely concerned about medically compromised people who cannot socially distance in prison," she said. "They don't have the proper personal protective equipment.  Most of them, from what I understand, do not have hand sanitizer.  A lot of them are improvising by cutting up T-shirts because there's not enough masks."... Povah, who is advocating for clemency for Riojas and dozens of others, said the Stone commutation was a signal that the president is aware of the plight aging people in prison face amid the pandemic. "It gives me hope," she said.

I am not as hopeful as Amy Povah that Prez Trump is giving much thought to the plight aging people in prison face amid the pandemic.  That said, though I continue to want to (foolishly?) imagine that Prez Trump might recall the adulation he received after his clemency grant to Alice Marie Johnson and then seek some positive press by granting clemency to, say, lifer marijuana offenders assembled at the Life for Pot website.  

Wanting to be hopeful, I think about the possibility that the new bill from Senators Durbin and Grassley, the COVID-19 Safer Detention Act, could get incorporated into the latest COVID response legislation working its way through Congress.  This bill would give both BOP and federal judges broader discretion to send elderly prisoners home earlier; this authority makes sense even without an on-going pandemic and is even more important and urgent now.

A few of many prior related posts:

July 27, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, July 24, 2020

Rounding up some more recent prison stories

It has been only a week since I did this round-up of prison pieces, but the press and commentators are keeping these critical stories coming (in part because, sadly, discouraging tales about the realities of prison keep coming). So here is another round-up of some more headlines and pieces catching my eye recently:

July 24, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Thursday, July 23, 2020

Federal judge rules Michael Cohen must be released back into home confinement

As reported in this CNBC piece, a "federal judge on Thursday ordered the release from prison of President Donald Trump’s former lawyer and fixer Michael Cohen by Friday afternoon."  Here is why:

Judge Alvin Hellerstein found that Cohen was sent back to prison on July 10 in retaliation for failing to agree a day earlier to not to publish a book about Trump as one of multiple conditions for serving the remainder of his three-year prison term on home confinement.  Cohen had been furloughed from prison in late May due to concerns about the coronavirus pandemic.  Shortly before being taken into custody he had been posting on social media about his upcoming book, which is going to be critical of Trump.

“I’ve never seen such a clause, in 21 years in being a judge,” Hellerstein said at a Manhattan federal court hearing, where he questioned the condition that Cohen not publish a book while in home confinement.  “How can I take any other inference but that it was retaliatory? “the judge asked at the hearing, which was held in response to Cohen suing to win his re-release from prison.

During the hearing, the judge was highly skeptical to arguments by a federal prosecutor that Cohen was not locked up in retaliation for the book, or that the condition of not writing a book was not sought for a specific reason.  At one point, when another prosecutor tried to come to the aid of the prosecutor who was answering the judge’s questions, Hellerstein angrily cut him off, reminding him of the rule that only one lawyer argued for each side in a case.

Cohen, who has been in quarantine in the prison in Otisville, N.Y., since his arrival there, will be released by 2 p.m. after begin tested for the coronavirus, and will be driven back to his home on Manhattan’s Upper East Side by his son, Hellerstein said. After his release into home confinement, he will be subject to a number of restrictions on his movement and employment and contact with other people.  But the restriction sought by federal Probation officials that he not speak to reporters, post on social media, or publish a book, is likely to be largely gutted.

Cohen’s lawyer and a prosecutor will in coming days negotiate the issue of any restrictions on Cohen dealing with the media.  Hellerstein suggested it would be inappropriate for Cohen to host a press conference in his apartment with a large number of reporters to discus his book while at the same time still serving his criminal sentence....

Hellerstein noted that court filings by both prosecutors and Cohen’s lawyers agree on a key point: that Cohen and his lawyer, after taking issue with at least one of the conditions, about the book, were left in a room along at some time by a Probation officer, and then confronted by Bureau of Prison officials who arrived to take him into custody.  Hellerstein also repeatedly said that Probation officials had not given Cohen a warning that if he did not agree to all the conditions presented to him at a July 9 meeting with his lawyer that he would be sent back to prison.  “Mr. Cohen was never given a chance to say, ‘If this is it, I will sign,’ ” Hellerstein said.

Prior Michael Cohen posts:

July 23, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Declines in federal prison population, per BOP reporting of "Total Federal Inmates," trending lower

Regular readers are used to my regular Thursday morning updates on COVID-era changes in the federal prison population based on the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers.  After months of historic declines, it appears that the federal prison population might be getting closer to flattening out as this week's decline is much lower than we have seen in weeks past.

This prior post detailed that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; through June, as detailed here, declines continued at a slightly reduced rate of about 950 fewer persons reported in all federal facilities on average per week.  As of late July, we have hit another new historic low with the new BOP numbers at this webpage reporting "Total Federal Inmates" at 158,405.  But this represents a decline of "only" 433 persons from last week's reported total of 158,838, and that number was itself a decline of "only" 854 persons from the prior week's total of 159,692. 

I am inclined to guess that more COVID-delayed sentencings and stalled federal prison transfers may now be moving forward; but the lack of any real-time data from the US Sentencing Commission and the opaque nature of BOP data make it hard to be sure just what the reported population numbers represent.  I am unsure just what to predict for the federal prison population in the weeks and months ahead, though I am sure I will keep following this notable echo of our persistent pandemic problems.  

A few of many prior related posts:

July 23, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Monday, July 20, 2020

"Crime Has Declined Overall During The Pandemic, But Shootings And Killings Are Up"

The title of this post is the headline of this new NPR piece, and here are excerpts:

Across the country, we've seen massive change brought on by the coronavirus pandemic, including a dramatic drop in the overall crime rate. David Abrams, a University of Pennsylvania law and economics professor, has been keeping an eye on numbers across the country. The website he created details what's been happening with crime in more than 25 major cities during the COVID-19 crisis. "People have reacted to the pandemic in all sorts of ways in decreasing economic activity," Abrams says. "They stopped going to work, they stopped driving their car. They stopped walking around the city, and crime also stopped."

Baltimore, Philadelphia, San Francisco, Washington, D.C., and Chicago all have witnessed a drop of more than 30%. Violent crimes such as aggravated assaults and robberies also fell substantially. That wasn't true of homicides and shootings though. In some cities, there's a troubling rise compared with last year.

Shauntavius Sims, 35, lives in a Chicago neighborhood that has been plagued by gun violence. That reality makes the news of an overall drop in the crime rate irrelevant. "Seem like it got worser to me. Just yesterday, I saw it behind my house," Sims says, as the sounds of firecrackers — not guns — filled the air. "Some boys just came and shot while me and my baby was in the back. Like every day, it's constantly on the news. Every day, it's something."

There has been a surge of homicides over recent violent weekends, and several children have been shooting victims. It's that type of tragic crime news in Chicago and other cities such as Houston, Cincinnati and Fresno, Calif., that's gotten the most attention.

Even though the numbers are tragic, Abrams says it's difficult to determine any trend in murder or other crimes over a short time span. He says for a more accurate statistical count it takes comparing what takes place from year to year over a longer period of time. "When you look at the homicide data and compare it to levels over the past five years," he says, "we didn't see any significant impact because of the pandemic."

Even so, University of Chicago professor Jens Ludwig, the head of the university's Crime Lab, says it's a big puzzle why shootings and murders haven't dropped while other crimes have. "Murders make up far less than 1% of the crimes in these cities," Ludwig says, "but murder is so damaging to families and communities, and I don't think we have a great understanding of why they haven't declined."...

There's more positive news when it comes to drug crimes. They plummeted by more than 60% compared with previous years, according to Abrams' website. Arizona State University criminologist Ojmarrh Mitchell says there are several reasons why. "First, drug crimes are measured by arrests, not citizen reports to police," Mitchell says. "During a pandemic, police aren't necessarily employing the pro-active police tactics and practices that typically result in discovering drugs."

The pandemic seems to be driving a lot of the reduction in crime, including home burglaries. But in commercial spaces, there's been a bump in burglaries, up by almost 30% on average across the cities examined.

Abrams says there was also a dramatic jump in car theft in Philadelphia, with increases as well in Denver, Los Angeles and Austin, Texas. Baltimore was the only city that saw a substantial decline. "So if people are leaving cars on the street, they have no need to use them," he says. "They aren't checking on them as frequently. There's also just less foot traffic around and fewer people to observe. I think that makes for more attractive targets for would-be thieves."

Prior related posts:

July 20, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

Sunday, July 19, 2020

Back by popular demand, another VERY long list of federal sentence reductions using § 3582(c)(1)(A)

It has now been a full two wees since I set out this holiday weekend listing of new grants of federal sentence reductions using § 3582(c)(1)(A).  The delay in producing a new list is not because of a lack of grants.  In fact, the updated numbers on this BOP page on the FIRST STEP Act suggests that roughly 70 sentence reductions are being granted by federal district courts each week: BOP reported 706 grants of "Compassionate Releases / Reduction in Sentences" three weeks ago, then reported 774 total grants as of two weeks ago, and it now reports 916 total grants. 

Only a portion of these sentence reduction grants end up on Westlaw, but I have heard from a number of readers that my listings are still appreciated.  So, without further ado, I am pleased to highlight dozens and dozens of additional recent grants here.  Because it has been two weeks since my last list, this one will be quite lengthy:

United States v. Grant, No. 16-30021-001, 2020 WL 4036382 (CD Ill. July 17, 2020)

United States v. Burton, No. 18-cr-00094-JSW-1, 2020 WL 4035067 (ND Cal. July 17, 2020)

United States v. Hendry, No. 2:19-cr-14035-ROSENBERG, 2020 WL 4015487 (SD Fla. July 16, 2020)

United States v. Watkins, No. 15-20333, 2020 WL 4016097  (ED Mich. July 16, 2020) 

United States v. Mabry, No. 14 CR 116-1, 2020 WL 4015315 (ND Ill. July 16, 2020)

 

United States v. Kirschner, No. 1:10-cr-00203-JPH-MJD, 2020 WL 4004059 (SD Ind. July 15, 2020)

United States v. Burt, No. 90-80492, 2020 WL 4001906 (ED Mich. July 15, 2020)

United States v. Calimer, No. DKC 02-0177, 2020 WL 4003288 (D Md. July 15, 2020)

United States v. Arceo, No. 5:09-cr-00616-EJD-1, 2020 WL 4001339 (ND Cal. July 15, 2020)

United States v. England, No.CR 18-61-GF-BMM, 2020 WL 4004477 (D Mont. July 15, 2020)

 

United States v. Mines, No. 4:18-cr-00552, 2020 WL 4003048 (ND Oh. July 15, 2020)

United States v. Edwards, No. 5:15-cr-00339, 2020 WL 4003050 (ND Oh. July 15, 2020)

United States v. Fluellen, No. 1:15-cr-00435, 2020 WL 4003039 (ND Oh. July 15, 2020)

United States v. Neal, No. 5:15-cr-00339, 2020 WL 4003049 (ND Oh. July 15, 2020)

United States v. Berry, No. 09-CR-90-JPS, 2020 WL 4001932 (ED Wisc. July 15, 2020)

 

United States v. Hayes, No. 17-20292, 2020 WL 4001903 (ED Mich. July 15, 2020)

United States v. Anello, No. 2:12-cr-00131-RAJ, 2020 WL 3971399 (WD Wash. July 14, 2020)

United States v. Torres, No. 19-cr-20342-BLOOM, 2020 WL 4019038 (SD Fla. July 14, 2020)

United States v. Collins, No. 15-10188-EFM, 2020 WL 3971391 (D Kan. July 14, 2020)

United States v. Evans, No. 18-cr-00308-WHO-1, 2020 WL 3971620 (ND Cal. July 14, 2020)

 

United States v. Mitchell, No. 4:13-cr-20468, 2020 WL 3972656 (ED Mich. July 14, 2020)

United States v. Pompey, No. CR 97-0638 RB, 2020 WL 3972735 (D N.M. July 14, 2020)

United States v. Amaro, No. 16 Cr. 848 (KPF), 2020 WL 3975486 (SDNY July 14, 2020)

United States v. Furlow, No. 2:06-CR-20020-01, 2020 WL 3967719 (WD La. July 13, 2020)

United States v. Fletcher, No. TDC-05-0179-01, 2020 WL 3972142 (D Md. July 13, 2020)

 

United States v. Fortson, No. 1:18-cr-00063-TWP-MJD, 2020 WL 3963729 (SD Ind. July 13, 2020)

United States v. Osborne, No. 1:07CR00019-002, 2020 WL 3958500 (WD Va. July 13, 2020)

United States v. Reed, No. 09-160 (PAM), 2020 WL 3960251 (D Minn. July 13, 2020)

United States v. Barajas, No. 18-CR-736-04 (NSR), 2020 WL 3976991 (SDNY July 13, 2020)

United States v. White, No. CCB-09-369, 2020 WL 3960830 (D Md. July 10, 2020)

 

United States v. Leal, No. 12-20021-05-KHV, 2020 WL 3892976 (D Kan. July 10, 2020)

United States v. Van Praagh, No. 1:14-cr-00189-PAC-1, 2020 WL 3892502 (SDNY July 10, 2020)

United States v. Hernandez, No. 10-CR-1288-LTS, 2020 WL 3893513 (SDNY July 10, 2020)

United States v. Collins, No. 10-cr-00963-1, 2020 WL 3892985 (ND Ill. July 10, 2020)

United States v. Smith, No. 04-CR-2002-CJW-MAR, 2020 WL 3913482 (ND Iowa July 10, 2020)

 

United States v. Paz, No. 92-172, 2020 WL 3958481 (D N.J. July 10, 2020)

United States v. Spencer, No. 04 Cr. 1156 (PAE), 2020 WL 3893610 (SDNY July 10, 2020)

United States v. Jones, No. 13-cr-577-2, 2020 WL 3892960 (ED Pa. July 9, 2020)

United States v. Croft, No. 95-496-1, 2020 WL 3871313 (ED Pa. July 9, 2020)

United States v. Gonzalez Quiroz, No. 18-CR-4517 (DMS), 2020 WL 3868751 (SD Cal. July 9, 2020)

 

United States v. Crawford, No. 2:18-cr-00075-3, 2020 WL 3869480 (SD Oh. July 8, 2020)

United States v. Davis, No. 3:10-cr-99 (SRU), 2020 WL 3843682 (D Conn. July 8, 2020)

United States v. Grubbs, No. CR16-228 TSZ, 2020 WL 3839619 (WD Wash. July 8, 2020)

United States v. Devine, No. 3:17cr228 (JBA), 2020 WL 3843716 (D Conn. July 8, 2020)

United States v. Gutierrez, No. 98-279(8) (JRT/AJB), 2020 WL 3839831 (D Minn. July 8, 2020)

 

United States v. Steffey, No. 2:12-cr-0083-APG-GWF, 2020 WL 3840558 (D Nev. July 8, 2020)

United States v. Jelinek, No. 15-20312, 2020 WL 3833125 (ED Mich. July 8, 2020)

United States v. Barnes, No. 3:13-CR-117-TAV-HBG-1, 2020 WL 3791972 (ED Tenn. July 7, 2020)

United States v. Erickson, No. 18-245(3) (DWF/HB), 2020 WL 3802823 (D Minn. July 7, 2020)

United States v. McRae, No. PJM 10-0127, 2020 WL 3791983 (D Md. July 7, 2020)

 

United States v. Mueller, No. 2:08-cr-00139-AB-1, 2020 WL 3791548 (ED Pa. July 7, 2020)

United States v. Bradley, No. 2:14-CR-00293-KJM, 2020 WL 3802794 (ED Cal. July 7, 2020)

United States v. Reyes-De La Rosa, No. 5:18-CR-55, 2020 WL 3799523 (SD Tex. July 7, 2020)

United States v. Mishler, No. 19-cr-00105-RS-2, 2020 WL 3791590 (ND Cal. July 7, 2020)

United States v. Tate, No. 17-cr-30037, 2020 WL 3791467 (CD Ill. July 7, 2020)

 

United States v. Ramsey, No. 18-CR-163, 2020 WL 3798938 (ED Wisc. July 7, 2020)

United States v. Hayes, No. 09 CR 1032, 2020 WL 3790615 (ND Ill. July 7, 2020)

United States v. Adeyemi, No. 06-124, 2020 WL 3642478 (ED Pa. July 6, 2020)

United States v. Adams, No. 3:04-CR-30029-NJR, 2020 WL 3639903 (SD Ill. July 6, 2020)

United States v. Bennett, No. 15-260(10) (PAM/TNL), 2020 WL 3638696 (D Minn. July 6, 2020)

 

Some of many prior recent related posts on CR grants:

July 19, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (1)

Friday, July 17, 2020

Notable headlines about COVID and lots more in incarceration nation

As we enter month five of the US coronavirus crisis, it is disturbingly easy to become numb to how this pandemic is playing out in jails and prisons.  Helpful, the press and commentators are keeping these critical stories covered, along with other comparable discouraging tales about the realities of prison punishment in the US.  Here is a round-up of just some headlines and pieces catching my eye today:

July 17, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Thursday, July 16, 2020

Important review of just why "Prison Populations Drop by 100,000 During Pandemic"

The quoted portion of the title of this post comes from the headline of this Marshall Project piece that has its theme in the subtitle: "But not because of COVID-19 releases."  The article chronicles nationwide what seems to be the story at the federal level, namely that prison populations are going down largely because a lot fewer people are going in, not so much because a lot of new people are coming out.  Here are the details:

There has been a major drop in the number of people behind bars in the U.S.  Between March and June, more than 100,000 people were released from state and federal prisons, a decrease of 8 percent, according to a nationwide analysis by The Marshall Project and The Associated Press.  The drops range from 2 percent in Virginia to 32 percent in Rhode Island.  By comparison, the state and federal prison population decreased by 2.2 percent in all of 2019, according to a report on prison populations by the Vera Institute of Justice.

But this year’s decrease has not come because of efforts to release vulnerable prisoners for health reasons and to manage the spread of the virus raging in prisons, according to detailed data from eight states compiled by The Marshall Project and AP.  Instead, head counts have dropped largely because prisons stopped accepting new prisoners from county jails to avoid importing the virus, court closures meant fewer people were receiving sentences and parole officers sent fewer people back inside for low-level violations, according to data and experts.  So the number could rise again once those wheels begin moving despite the virus....

While many people may be qualified for early releases, very few actually got out.  In April, Pennsylvania launched a temporary reprieve program, allowing the state’s corrections department to send people home under the condition that they return to finish their sentences once the pandemic passes.  The governor’s office predicted more than 1,500 would be eligible for release.

So far, the state's corrections department has recommended 1,200 people for reprieves, but the application process is slow and tedious, said Bret Bucklen, the department’s research director.  Each application needs approval from the governor, the secretary of corrections and the assistant district attorney who oversaw the initial conviction.  Nearly three months later, fewer than 160 people have been released through the reprieve program, while Pennsylvania’s total prison population dropped by 2,800.

As in Pennsylvania, data from states such as North Carolina, Illinois and New Jersey shows coronavirus releases only account for less than one-third of the decrease in prison population, which suggests something else is driving the drop.  According to Martin Horn, professor emeritus at John Jay College of Criminal Justice and a former corrections commissioner for New York City, the pandemic has slowed the entire criminal justice system, which means fewer people are going to prisons...

Nazgol Ghandnoosh, a senior research analyst at the Sentencing Project, a group that advocates for sentencing reform, said that while the prison population decreases are a step in the right direction, she is disappointed by the numbers.  Even if the COVID-19 release policies work as intended, they might not lower the prison population enough because states often exclude violent offenders from such releases, Ghandnoosh said.  “Even though we are sending too many people to prison and keeping them there too long, and even though research shows people who are older have the highest risk from COVID-19 and the lowest risk of recidivism, we are still not letting them out,” Ghandnoosh said.

July 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)