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)

Federal prison population, according to BOP report of "Total Federal Inmates," now at 158,838

Another Thursday morning calls for another COVID-era check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers; we continue to see historic declines, though this week's decline is a bit 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; though 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 mid-July, we have hit another new historic low as the new BOP numbers at this webpage report "Total Federal Inmates" at 158,838.   This total represents a decline of 854 persons from last week's total of 159,692.  (For more recent context, the BOP reported population dropped from 163,441 (as of June 11) to 162,578 (as of June 18) to 161,640 (as of June 25) to 160,690 (as of July 2).) 

Because of the disconcerting reality that the COVID-19 crisis does not seem to be letting up, especially in large jurisdictions that generate lots of federal criminal cases like Arizona, California, Florida and Texas, I doubt these federal prison population declines are going to reverse anytime soon.  This new AP article discussing prison populations declines more generally highlights that "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."  It seems to me unlikely that these trends will stop in the near future.

A few of many prior related posts:

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

Wednesday, July 15, 2020

An ever-timely offer for compassionate release help from one who was recently released

I suspect a number of readers know the name Chad Marks, perhaps from these prior recent posts about his case:

As the second of this posts details, Chad secured a significant sentence reduction this year, allowing him to leave prison last month.  My understanding that Chad quite selflessly helped a number of his fellow prisoners with legal claims and filings while he was incarcerated, and I saw from this new Facebook posting that he is eager to continue to do so:

With COVID-19 ramping back up in our prison system if you and your loved ones need help with preparing a 3582 motion, or if you need help with a 2255 contact me at www.myfreedomfighters.com

Posted by Chad Marks on Wednesday, July 15, 2020

Because I get a lot of inquiries about getting help with compassionate release motions, I wanted to here be able to share this important and insightful human resource.  Chad welcomed my suggestion of posting his Facebook offer, and I am grateful he has.

July 15, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Monday, July 13, 2020

When might we get any data (or even a statement) from US Sentencing Commission about the COVID state of federal sentencing?

Today marks exactly four months since Prez Trump, on March 13, officially proclaimed that "the COVID-19 outbreak in the United States constitutes a national emergency."  In this post back in March, I expressed disappointment, but understanding, regarding the US Sentencing Commission's failure at that time to put out any data or statement about the coronavirus outbreak and its impact on the federal criminal justice system.  As I said in that post, USSC is not really geared up for producing real-time data even under the best of circumstances, and these are obviously not the best of circumstances.

But since March, the USSC has actually managed to produce and disseminate an impressive array of new publications even during a global pandemic. Here are links to the posts I have done in the last four months reporting on notable new USSC publications:

And this list is an incomplete accounting of the USSC's pandemic productivity, as it has also produced nearly 30 new insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications, as well as a number of other notable and valuable documents like an updated new set of training  "Primers" on a wide array of topics. 

But, disappointingly, amidst all this impressive continued productivity, we are still awaiting the US Sentencing Commission producing any data (or even some kind of statement) about COVID's on-going (and evolving?) impact on the federal criminal justice system.  As I have mentioned before, it would prove extremely helpful to advocates, researchers and surely persons involved in the federal sentencing system to know just about anything about how and how many sentencings are being conducted in federal courts.  I suspect I am not the only one eager to see any data on, for example, how many sentencings are going forward each week given that, in normal times, about an average of 1500 federal sentences are imposed in federal courts every week of the year.  I would also be eager to know if a larger number than usual non-prison sentences are being imposed in those sentencings that are going forward.  And any data on sentence reductions motions involving § 3582(c)(1)(A) would also be so very interesting.

I do not mean to unduly assail the USSC during these challenging times, but I fear its failure to say publicly a single word about the COVID state of federal sentencing can make these times even more challenging for those working in the federal system.  In my view, having the USSC discuss ASAP what data it is trying to collect and when the USSC might report on this data could be of great service and could help advance the cause of thoughtful and consistent federal sentencing amidst uncertain times.

July 13, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Friday, July 10, 2020

Is releasing people from prison really that hard? I suppose it is if you cannot shake a carceral mindset.

The question in the title of this post is my response to this recent lengthy Atlantic commentary by Barbara Bradley Hagerty headlined "Releasing People From Prison Is Easier Said Than Done: As the pandemic threatens the lives of those behind bars, the country must confront a system that has never had rehabilitation as its priority."  This piece is reform-minded, and I recommend it, but its headline, much of its prose, and its overall spirit embrace a kind of carceral mentality that serves to reify a mass incarceration message.  These excerpts, as I will explain below, spotlight my concerns:

Some governors, alarmed at the deaths in prisons and jails and worried about the risk to surrounding communities, are listening — sort of, with an ear attuned to the political liability. More than half of the states have agreed to release people convicted of low-level crimes, people who are nearing the end of their sentences, or people who merit compassionate release, such as pregnant people or older, vulnerable inmates.

“It’s been helpful. I know that people have gotten out, and I am moved by their release,” says Nicole Porter, the director of advocacy at the Sentencing Project, a research organization that campaigns for sentencing reform. “But none of it has been substantial.  And what I hope this moment tells us is that our incarceration rate is a function of politics — because there are many questions about who needs to be incarcerated.”

To meaningfully reduce America’s prison population and slow the pandemic will require cutting away not just fat but muscle, releasing not just nonviolent drug offenders but those convicted of violent crimes.  The difficulty of doing so, in both practical and moral terms, is enormous.  Which people convicted of murder or armed robbery do we release? How do we decide?  And how do we guarantee that they won’t offend again, especially as they try to restart their life during the worst economic collapse in nearly a century?...

Advocates say prisons are brimming with candidates who deserve a second chance—men and women who made egregious mistakes when they were young, whose crimes say more about the impulsiveness of youth and the trickiness of navigating inner-city violence than they do about character.  Yet in large part, these are not people whom the system has been preparing for release.

Prison can serve many purposes — to deter people from committing crimes in the first place, to punish them if they do, or to rehabilitate them and usher them back to normal life. America has by and large chosen the punitive path, imposing decades-long sentences intended to reduce crime on the streets.  During that time, inmates usually don’t receive the kind of training or care that would enable them to return to the outside world and build a new, stable life. This presents a giant hurdle for those who would wish to release prisoners now....

Those are the practical challenges.  The moral question — who deserves to be released? — is even more daunting.  Is the inmate truly penitent, or merely saying the right words? Has he matured past his violent tendencies, or is he a tinderbox waiting to ignite once he’s out?  Does the family of the victim agree, or will his release only add to their pain?  Is the crime simply so heinous that even a perfect record cannot overcome it?

The last paragraph I have excerpted here is perhaps the clearest example of a carceral mindset: when asking "who deserves to be released?", the writer is necessarily assuming that everyone incarcerated not only already "deserves" to be incarcerated, but also "deserves" to continue to be incarcerated.  Further, the author then suggests that, to "deserve" release, an "inmate" must be "truly penitent" AND must have "matured past his violent tendencies" AND must have the "family of the victim agree." And, even then it seems, a "perfect record" still should not permit release amidst a global pandemic killing hundreds of prisoners if a person's crime is "simply so heinous."

For anyone eager to see a US criminal justice system operating with a deep commitment to liberty and justice, this thinking should be — must be — completely flipped.  The proper "daunting" moral question  is who deserves to still be incarcerated, especially amidst a global pandemic with inherently and worsening inhumane prison conditions.  If an incarcerated person is "truly penitent" OR likely has "matured past his violent tendencies" OR has the "family of the victim" in support, then that person ought no longer be incarcerated.  And, even without anything close to a "perfect record," an alternative to incarceration should still be the presumption for any and everyone whose crime or criminal record is not truly heinous.

Similar rhetoric earlier in the piece is comparably problematic, such as the query "how do we guarantee that they won’t offend again" when considering who to release from prison.  It is important — and I think this piece means to get us usefully thinking about — the importance of prison programming and outside support that seeks to minimize the risk of recidivism for persons leaving prison.  But we are never going to be able to "guarantee" that any cohort of individuals will never commit any kind of crime.  When we consider building a new highway, nobody expects public officials to "guarantee" there will never be an accident on that highway.  We want a new road to be as safe as possible, but we recognize that the array of benefits that can come from having a new road generally justify the inevitable public safety risks it creates.   Similarly, we must be ever mindful of the array of benefits that can come from having less people in prison and not demand or even suggest that people should be released from prison only if and only when public officials can "guarantee that they won’t offend again."

Finally, for now at least, I must again lament the tendency in so many of these kinds of discussions to start with the framing that meaningful action here "will require cutting away not just fat but muscle, releasing not just nonviolent drug offenders but those convicted of violent crimes."  I agree that cutting away the "fat" may not alone be enough, but let's focus on getting that hard work done before we fixate on the additional challenges of cutting "muscle."  As this great Prison Policy Initiative pie chart reminds us, roughly 50% of our national prison and jail populations are serving time for what are deemed "non-violent" offenses.  When we let out all or most or even some significant portion of this million+ people in cages, then I will be more than ready to wring my hands over which "violent" offenders to release.  But to now get deeply concerned about exactly which "people convicted of murder or armed robbery" should be released risks creating the impression that these types of offenders are the bulk of our prison populations, when they comprise less than 25% of all the people put in cages in the so-called home of the free and land of the brave.  (Also, for the very most serious of offenders, the debate is much less complicated since presumptive release when they are elderly or ill generally makes the most sense.)

I could go on and on, but I hope my point is clear.  Even as we discuss reform and recognize all the challenges surrounding decarceration efforts, we must be ever mindful of how decades of mass incarceration has not only badly hurt our nation and our values, but also badly hurt how we talk and think about doing better.

July 10, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Thursday, July 09, 2020

Notable review of worldwide decarceration efforts in response to COVID-19

Via this webpage overview and this key findings document, the group Harm Reduction International has assembled some interesting information about how countries around the world have been approaching decarceration efforts in response to the coronavirus.  Here are excepts of the overview and key findings:

Harm Reduction International monitored prison decongestion measures adopted around the world between March and June 2020 in response to COVID-19, and found evidence of such schemes in 109 countries.  We tracked criteria for eligibility and implementation of the measures. Noting that UN experts recommended countries release "those charged for minor and non-violent drug and other offences" in the context of COVID-19, we further focused on how these measures impact on people in prison for drug offences.

Despite a scarcity of official information, we found that around a fourth of countries implementing decongestion schemes explicitly excluded people incarcerated for drug offences; effectively prioritising punitive approaches to drug control over the health of the prison population and the individual.

Looking at the cumulative effect of COVID-19-related schemes, we observe that in total, they reduced the global prison population by less than 6%, as at 24 June 2020.  This falls significantly short of expectations and the significant political commitments made in the name of public health.

109 countries and territories adopted decongestion measures in an attempt to curb the risk of COVID-19 transmission within prisons. The main measures introduced are:

  • early releases, often through sentence commutation (54 countries),
  • pardons (34 countries),
  • diversion to home arrest (16 countries), and
  • release on bail/parole (8 countries).
In some countries (including Belgium, Colombia, Costa Rica and Iran) release measures are temporary, therefore prisoners are expected to return to prisons at the end of the emergency....
A close up on countries:  
  • No decongestion measures were reported in China and Russia, the countries with respectively the 2nd and 4th highest prison populations in the world.
  • The majority of countries in Africa and Latin America introduced decongestion schemes.
  • The most significant gap in uptake can be observed in Eastern Europe and Central Asia, where only Belarus and Kyrgyzstan adopted ad-hoc measures.  Several Southeast Asian countries adopted measures to decongest prisons, which are severely overcrowded — mainly due to the high rate of incarceration for drug offences. Indonesia, the Philippines, Myanmar and Thailand released a total of 90,000 prisoners.  However, people detained for certain drug offences are excluded from eligibility in Indonesia and the Philippines.
  • Hundreds of foreign nationals, many of whom are migrant workers, were repatriated following pardons and other early release measures adopted in the Middle East —  including 150 Bangladeshi nationals imprisoned for drug offences in Bahrain.

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

Michael Cohen, Prez Trump's former lawyer, sent back to federal prison because he "refused the conditions of his home confinement"

As reported in this new AP piece, "President Donald Trump’s former personal lawyer and fixer, Michael Cohen, was returned to federal prison Thursday, weeks after his early release to serve the remainder of his sentence at home because of the coronavirus pandemic, the federal Bureau of Prisons said."  Here is more:

In a statement to The Associated Press, the Bureau of Prisons said Cohen had “refused the conditions of his home confinement and as a result, has been returned to a BOP facility.” His return to prison comes days after the New York Post published photos of him and his wife enjoying an outdoor meal with friends at a restaurant near his Manhattan home.

Roger Adler, one of Cohen's attorneys, called his jailing an “overly draconian response to what was at worst poor judgment.”  He said it was Cohen's belief that being on medical furlough “did not prohibit venturing beyond his apartment and dining out.”

“It's not a crime to eat out and support local businesses," Adler told the AP, adding Cohen had been “thrown back into a petri dish of coronavirus.”

Cohen, who pleaded guilty to tax evasion, campaign finance fraud and lying to Congress, had been released May 21 on furlough as part of an attempt to slow the spread of the virus in federal prisons. Cohen, 53, began serving his sentence in May 2019 and had been scheduled to remain in prison until November 2021.

Cohen’s convictions were related to crimes including dodging taxes on $4 million in income from his taxi business, lying during congressional testimony about the timing of discussions around an abandoned plan to build a Trump Tower in Russia, and orchestrating payments to two women to keep them from talking publicly about alleged affairs with Trump.  Prosecutors said the payments amounted to illegal campaign contributions.  Trump, who denied the affairs, said any payments were a personal matter....

A federal judge had denied Cohen’s attempt for an early release to home confinement after serving 10 months in prison and said in a May ruling that it “appears to be just another effort to inject himself into the news cycle.” But the Bureau of Prisons can move prisoners to home confinement without a judicial order.

Intriguingly, this New York Daily News article, headlined "Michael Cohen arrested after refusing gov’t demand to not publish Trump book during sentence: friend," suggests that Cohen's decision to eat out at a restaurant is not the real reason he is headed back to federal prison:

Michael Cohen was thrown back into prison on Thursday after refusing to sign a home confinement agreement requiring him to not publish a tell-all book about President Trump for the duration of his sentence, according to Lanny Davis, his friend and former attorney.

Cohen was presented with the hush contract while sitting down with his probation officer in downtown Manhattan for a meeting that he expected to be about fitting an electronic surveillance bracelet to his ankle, Davis told reporters on a conference call.  In addition to not publishing a book, the agreement required Cohen to not talk to any media outlets for the remainder of his three-year sentence, according to Davis, who wasn’t present but said he got the play-by-play recounted to him by Cohen attorney Jeffrey Levine.

“That disturbed him because he pointed out that he could talk to the media when he was in Otisville — why not in home confinement?” Davis said, referring to the upstate New York prison where Cohen was doing hard time.  After making clear he would not sign, the probation officer left the room, Davis said.  “The next thing that they saw coming out of an elevator was three U.S. marshals holding shackles,” Davis continued....

“The next thing that happened is the marshals said they had an order signed by somebody from BOP and the order was to arrest him and put him in jail and they started to put shackles on him,” Davis said, using an acronym for the Bureau of Prisons.  Having a change of heart, Cohen told the marshals: “I’ll sign exactly what you want me to sign so I don’t have to go back to jail,” according to Davis. 

But the marshals didn’t budge, Davis said.  “It’s out of our hands,” one of them told Cohen, according to Davis. Davis said Cohen was taken to either the Metropolitan Correctional Center in Manhattan or the Metropolitan Detention Center in Brooklyn.

A spokesman for BOP confirmed Cohen had been taken into custody for having “refused the conditions of his home confinement,” but declined to elaborate.

Prior Michael Cohen posts:

July 9, 2020 in Celebrity sentencings, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (3)

Federal prison population, per BOP report of "Total Federal Inmates," drops below 160,000

Two months ago, I noted in this post that federal Bureau of Prisons' official "Total Federal Inmates" count hit a notable milestone when the population dropped down below 170 thousand to an official total of 169,080 as of May 7, 2020.  Though I have been speculating that historic weekly declines would at some point stop or at least significantly slow, that has not happened yet.  In fact, the first part of July brings another modern low and another milestone passed: the new BOP numbers at this webpage now report "Total Federal Inmates" at 159,692.  (For recent context, the BOP reported population dropped from 163,441 (as of June 11) to 162,578 (as of June 18) to 161,640 (as of June 25) to 160,690 (as of July 2).)

Given that the COVID-19 crisis does not seem to be letting up, especially in large jurisdictions that historically generate lots of federal criminal cases like Arizona, California, Florida and Texas, I am lately starting to think these federal prison population declines might now be expected to continue for the foreseeable future.  Given that, as recent research notes, "COVID-19 case rates have been substantially higher and escalating much more rapidly in prisons than in the US population" and especially given that the death rate in the prison population is "3.0 times higher than would be expected" in the general population, responsible criminal justice and public health officials should still be seeking to drive down all prison populations as quickly and as robustly as possible.

A few of many prior related posts:

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

Wednesday, July 08, 2020

Texas completes second US execution in COVID era of a defendant who committed murder at age 18

As reported in this local article, "Texas executed Billy Joe Wardlow on Wednesday night for a 1993 East Texas robbery and murder. It was the state's first execution since the coronavirus swept through the state."  Here is more:

In late appeals, Wardlow's lawyers argued that his death should be stopped because of the dangers presented by the rising pandemic and his young age at the the time of the crime. Neuroscientists and a group of Texas lawmakers also raised concerns with sentencing people who had committed crimes under 21 to death because of brain immaturity.  All of Wardlow's appeals were denied by the U.S. Supreme Court just after 6 p.m., the scheduled time of execution.

After 25 years on death row, Wardlow, aided by neuroscientists, asked the U.S. Supreme Court to rule that at 18, he was too young to face Texas’ death penalty. Nearly 60 Texas lawmakers also informed the Texas Board of Pardons and Paroles, which could recommend a delay to the execution, that they plan to take up the issue of age and the death penalty in the 2021 Legislature.  But on Monday, the board voted against halting the execution until then....

Since 2005, the Supreme Court has held that death sentences are unconstitutional for those 17 or younger at the time of the crime because of their vulnerability, comparative lack of control and still-undefined identity.  Some state and lower federal courts have questioned in recent years whether the upper limit of 18 is too young as new science emerges that shows the brains of people ages 18 to 20 are “functionally indistinguishable” from those of 17-year-olds in terms of moral culpability, according to Wardlow’s brief.

In a plea to stop his execution and invalidate his death sentence, Wardlow asked the high court to rule that the death penalty is unconstitutional for those under 21 — but just in Texas. That’s because a Texas death sentence requires a jury to unanimously agree that a person convicted of capital murder would likely be a future danger to society — a decision Wardlow’s attorney and a group of brain researchers said is impossible to make for an 18-year-old....

Before Wednesday, Texas had not held an execution since the pandemic took hold of the state in March — a long stretch for the state that carries out the most executions by far. The Court of Criminal Appeals halted four scheduled executions from March to May "in light of the current health crisis and the enormous resources needed to address that emergency."...

Texas executions are held at the Huntsville Unit in Huntsville, a prison that on Wednesday reported active infections among inmates and staff in a city that has seen a high surge of cases, largely due to the fact that it has seven prisons and many prison employees. Wardlow’s attorneys argued that holding an execution was still too dangerous, potentially exposing to the virus employees who have to attend the execution, witnesses and the community.

Wardlow was the third person to be executed in Texas this year and the second in the country since the coronavirus swept the nation.

July 8, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice | Permalink | Comments (2)

"COVID-19 Cases and Deaths in Federal and State Prisons"

The title of this post is the title of this new Research Letter just published in JAMA authored by Brendan Saloner, Kalind Parish, Julie A. Ward, Grace DiLaura and Sharon Dolovich.  Here are some excerpts:

Novel coronavirus disease 2019 (COVID-19) represents a challenge to prisons because of close confinement, limited access to personal protective equipment, and elevated burden of cardiac and respiratory conditions that exacerbate COVID-19 risk among prisoners.  Although news reports document prison outbreaks of COVID-19, systematic data are lacking. Relying on officially reported data, we examined COVID-19 case rates and deaths among federal and state prisoners....

By June 6, 2020, there had been 42 107 cases of COVID-19 and 510 deaths among 1 295 285 prisoners with a case rate of 3251 per 100 000 prisoners.  The COVID-19 case rate for prisoners was 5.5 times higher than the US population case rate of 587 per 100 000.  The crude COVID-19 death rate in prisons was 39 deaths per 100 000 prisoners, which was higher than the US population rate of 29 deaths per 100 000 (Table).  However, individuals aged 65 years or older comprised a smaller share of the prison population than of the US population (3% vs 16%, respectively) and accounted for 81% of COVID-19 deaths in the US population.  The Table provides a standardized calculation showing that the adjusted death rate in the prison population was 3.0 times higher than would be expected if the age and sex distributions of the US and prison populations were equal....

COVID-19 case rates have been substantially higher and escalating much more rapidly in prisons than in the US population.  One limitation of the study is that it relied on officially reported data, which may be subject to inaccuracies and reporting delays, but are the only data available.  Comprehensive data on testing rates were not available, and testing rates in both prisons and the overall population were uneven, with many facilities testing no prisoners or only symptomatic persons.  Mass testing in select prisons revealed wide COVID-19 outbreaks, with infection rates exceeding 65% in several facilities.  Reported case rates for prisoners therefore likely understated the true prevalence of COVID-19 in prisons.

A second limitation is that departments of corrections generally did not report demographic data on decedents, and therefore we could not adjust death rates to account for race/ethnicity and comorbidity.  This study focused on prisons but did not include jails or other detention facilities where there have been notable COVID-19 outbreaks.  Although some facilities did engage in efforts to control outbreaks, the findings suggest that overall, COVID-19 in US prisons is unlikely to be contained without implementation of more effective infection control.

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

Tuesday, July 07, 2020

Some summer criminal justice highlights from Marijuana Law, Policy & Reform

It has been far too long since I thought to do a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, though that is certainly not because there has been any shortage of interesting COVID-19 or social justice issues arising these days at the intersection of marijuana policy and criminal justice policy.   Rather than try to do a comprehensive review, I will be content to stoplight some favorites with an emphasis on criminal-justice-related stories in this abridged list of posts of note from recent months at MLP&R:

July 7, 2020 in Drug Offense Sentencing, Impact of the coronavirus on criminal justice, Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (0)

Monday, July 06, 2020

Death Penalty Information Center releases "Mid-Year Review" detailing "Record-Low Death Penalty Use in First Half of 2020"

I just saw that the Death Penalty Information Center published here just before the holiday weekend a short report titled "DPIC MID-YEAR REVIEW: Pandemic and Continuing Historic Decline Produce Record-Low Death Penalty Use in First Half of 2020."  Here are some highlights:

Introduction

The combination of the effects of the coronavirus pandemic and the continuing broad national decline in the use of capital punishment produced historically low numbers of new death sentences and executions in the first half of 2020.

Even before the pandemic, the U.S. was poised for its sixth consecutive year with 50 or fewer new death sentences and 30 or fewer executions.  At the midpoint of 2020, there had been 13 new death sentences, imposed in seven states, and six executions carried out by five historically high-execution states. Florida (4), California (3), and Texas had imposed multiple new death sentences, but only Texas (with 2) had carried out more than one execution....

First-Half 2020 Death Sentences

2016 through 2019 produced four of the five lowest death-sentencing years in the U.S. since the Supreme Court struck down existing death-penalty statutes in Furman v. Georgia in 1972.  With new death sentences already near historic lows and most capital trials and sentencings now suspended or delayed, 2020 is expected to produce the fewest death sentences of any year in the modern history of the U.S. death penalty....

Only two death sentences have been imposed since the pandemic began shutting down courts in mid-March.  Neither of those sentences — a trial before a three-judge panel in Ohio and a California trial court’s acceptance of a jury verdict issued in January — involved new jury action, nor did the last sentences imposed prior to the pandemic.

The last death sentences imposed before the widespread court closures were handed down by a Florida trial judge on March 13, who sentenced Jesse Bell and Barry Noetzel to death after they pled guilty and were permitted to waive their rights to counsel and a jury sentencing.  The next new death sentence came on May 18, when an Ohio three-judge panel sentenced Joel Drain to death. Drain had waived his right to a jury trial and sentence, presented no guilt defense and refused to present mitigating evidence in the penalty-phase of his trial.  The 66 days between those two death sentences was the longest the United States had gone without a new death sentence since 1973....

First-Half 2020 Executions

Midway through 2020, it appears that U.S. states are likely to carry out fewer executions than in any year since 1991, when there were 14 executions.  Of the 54 executions dates set for 2020, six executions have been carried out, with nine scheduled executions still pending.  The few jurisdictions that are attempting to carry out executions are outliers in both their criminal justice and public health policies, prioritizing immediately executing prisoners over public health and safety concerns and fair judicial process.  Eight executions have been stayed or rescheduled as a result of the COVID-19 pandemic.

I am always grateful for how DPIC assembles and reports essential capital punishment data, but I find it notable that this report does not discuss  that the federal government may be poised to resume executions in the second half of 2020 thanks to key decisions by the DC Circuit and SCOTUS in the first half of 2020.  Though I doubt that the resumption of federal executions will dramatically impact the declining fate of the death penalty throughout the US, I do think the pending federal executions could prove to be one of the biggest death penalty stories of 2020 (and could even become a presidential campaign issue in the coming months).  It seems worth a mention.

July 6, 2020 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Puzzling though crime data, practically and politically, in the crazy year that is 2020

This new New York Times piece discusses the latest crime data as we head into the back half of 2020.  The piece's full headline captures its themes: "It’s Been ‘Such a Weird Year.’ That’s Also Reflected in Crime Statistics: In large cities across America, murders are up sharply, while other violent crimes have decreased."  Here are excerpts:

The national numbers for murder and other types of violent crime rarely move in opposite directions. But this is no ordinary year.

Overall crime is down 5.3 percent in 25 large American cities relative to the same period in 2019, with violent crime down 2 percent.

But murder in these 25 cities is up 16.1 percent in relation to last year. It’s not just a handful of cities driving this change, either. Property crime is down in 18 of the 25 sampled cities, and violent crime is down in 11 of them, but murder is up in 20 of the cities....

Homicides usually rise in the summer, which coincided this year with many people emerging from pandemic lockdown. In one recent weekend in Chicago, 14 people were killed and at least 106 people were shot, the most in eight years. And as The New York Times reported recently: “It has been nearly a quarter century since New York City experienced as much gun violence in the month of June as it has seen this year.” (On Sunday night, the city reportedly had nine killings in the previous 24 hours.)

An additional 17 cities provide year-to-date murder data. Murder is up 21.8 percent in all 36 cities with 2020 data through at least May, with 29 of those cities seeing an increase this year relative to last year.

How often do murder and other types of violent crime move in opposite directions? There have been only four years since 1960 (1993, 2000, 2002 and 2003) when murder increased but overall violent crime decreased nationally, and the increase in murder was small in each of those years. The average absolute difference between the national change in murder and violent crime since 1990 has been just 2.2 percent, so a big increase in murder nationally while violent crime falls is almost unheard-of.

But this year has been distinct in many ways, because of the pandemic and because of the protests and civil unrest after the death of George Floyd in police custody. Jerry Ratcliffe, a professor of criminal justice at Temple University and host of the Reducing Crime podcast, has cautioned against comparing crime figures in one year with the previous year. This year’s upheaval may be even more reason to be cautious.

Identifying the trend in murder statistics is relatively easy. Understanding why it is happening and what can be done about it is much harder. Phillip Atiba Goff, co-founder and C.E.O. of the Center for Policing Equity, points to increased domestic violence as one possible cause of the increase in murder. “The first explanation that I have is that this comes from people being locked inside (during quarantines) and a lack of social services,” he said. “All those things are things that we would expect to lead to higher rates of violence. That’s speculation, though. I have no evidence that that’s the right thing other than the rise in calls for domestic violence.”

Mr. Ratcliffe agrees that increased domestic violence may be playing a role. He also hypothesizes that “Covid-19 could have reduced the market and opportunities for recreational drug use/dealing, which puts stress on the drug markets and increases violence.”

“If that is one of the causes, then we might see those tensions ease as lockdowns are relieved,” he said.

Jennifer Doleac, associate professor of economics and director of the Justice Tech Lab at Texas A&M, said: “People are worried about increasing domestic violence, and that could certainly lead to increases in homicide. Any kind of crime where most of it is between strangers or requires people being out and about would be down, and homicide is usually between people who know each other, so it might be affected differently.”

It’s plausible that the increase in murder this year might reflect a trend that began before the pandemic got underway. A review of the percent change in murder in 10 cities before coronavirus struck (generally defined as through February or March) and those cities’ most recent June update for the year so far shows a worse year-to-date percent change in eight of them, suggesting that the trend may have accelerated over the last few months....

Some research suggests that a loss of trust in law enforcement can cause citizens to be reluctant to contact the police, and people may be more likely to take justice into their own hands to resolve disputes.

It’s important to keep the rise in historical perspective. Murder in New York was up 25 percent compared with last year as of June 14, but that total was the same one the city had in 2015. Murder is up 22 percent in Chicago, but it’s down 6 percent from where it was at this time in 2017. Murder is up 42 percent in New Orleans, but a year ago murder was its lowest point there in almost half a century.

“These numbers do not tell a story that supports any ideological side of the debate around policing,” Mr. Goff said. “What it supports at most is a need for rigorous curiosity about a vital issue.” Ms. Doleac also says it is too early to draw any firm conclusions: “This is such a weird year in so many dimensions, and it’s going to take us a while to figure out what caused any of these differences in crime. It is perfectly reasonable to think the first half of this year may not tell us what the rest of the year will look like.”...

“The reality is that we just don’t know” what’s driving the change in murder, Mr. Goff said, “and it’s not a straightforward process to figure it out.”

Notably, Prez Trump already has released a campaign ad seeking to tie police reform efforts to increased crime. If homicide numbers keep going up and up in big cities like New York and Chicago, I would expect the Trump campaign to continue to try to stoke up fear of crime and continue to claim that he is the only "law and order" candidate.  That political playbook worked pretty well for Richard Nixon in 1968 and for George H.W. Bush in 1988, and the next few months will show if it can work for Donald Trump.

One final macabre observation: as I reflect on crime data circa July 2020, I am finding that the COVID pandemic skews my perspective on some of the numbers.  These crime data on New York City reports 176 murders in roughly the first six months of 2020 compared to 143 murders during the same period in 2019.  While that is a troubling 23% increase in NYC murders for the first half of the year, it is still well less than half of the 500+ daily deaths from COVID that NYC experienced in early April. Though there are lots of problems with comparing data on homicides and COVID deaths, I am finding that the grim COVID death data that we are all still processing make even elevated homicide numbers look not quite as frightening.  Of course, a global pandemic should not make us complacent about crime, but I am still struck by how the reality and reactions to crime is always going to be contextual and contingent.

Prior related posts:

July 6, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Sunday, July 05, 2020

Celebrating freedom with another long list of federal sentence reductions using § 3582(c)(1)(A)

After a holiday weekend all about celebrating freedom in this great country, I am excited to provide another listings of new grants of federal sentence reductions using § 3582(c)(1)(A).  These lists represent a special kind of freedom for federal prisoners and those that care about them, and I am pleased to have nearly three dozen recent grants to report here:

United States v. Johnson, No. CR H-96-176, 2020 WL 3618682 (SD Tex. July 2, 2020)

United States v. Young, No. 14-CR-30024-2, 2020 WL 3605025 (CD Ill. July 2, 2020)

United States v. Browne, No. CR 14-10369-LTS, 2020 WL 3618689 (D Mass. July 2, 2020)

United States v. Tubbs-Smith, No. CR 18-20310, 2020 WL 3618511 (ED Mich. July 2, 2020)

United States v. McCalla, No. CR 11-452 (FLW), 2020 WL 3604120  (D N.J. July 2, 2020) 

 

United States v. Hanson, No. 6:13-CR-00378-AA-1, 2020 WL 3605845 (D Ore. July 2, 2020)

United States v. Fitch, No. 2:04-CR-262 JCM (PAL), 2020 WL 3620067 (D Nev. July 2, 2020)

United States v. Chargualaf, No. CR 95-00054, 2020 WL 3619007 (D Guam July 2, 2020)

United States v. Plank, No. 17-20026-JWL, 2020 WL 3618858 (D Kan. July 2, 2020)

United States v. Seals, No. CR 13-00653 SOM (11), 2020 WL 3578289 (D Haw. July 1, 2020)

 

United States v. Nealy, No. 3:12-CR-154(RNC)2, 2020 WL 3577299 (D Conn. July 1, 2020)

United States v. Heyward, No. 17-CR-527-PWG, 2020 WL 3547018 (D Md. June 30, 2020)

United States v. Burnett, No. 06-CR-00034-PB-2, 2020 WL 3545159 (D N.H. June 30, 2020)

United States v.Tillman, No. 12-CR-2024-CJW-MAR, 2020 WL 3578374 (ND Iowa June 30, 2020)

United States v. Garcia, No. CR 13-00884 HG-01, 2020 WL 3547933 (D Haw. June 30, 2020)

 

United States v. Gakhal, No. 15 CR 470-1, 2020 WL 3529904 (ND Ill. June 30, 2020)

United States v. Rachal, No. CR 16-10043-NMG, 2020 WL 3545473 (D Mass. June 30, 2020)

United States v. Pina, No. 18-CR-179 (JSR), 2020 WL 3545514 (SDNY June 29, 2020)

United States v. Harris, No. 06-CR-30058, 2020 WL 3483559 (CD Ill. June 26, 2020)

Woodard v. United States, No. 2:12-CR-105, 2020 WL 3528413 (ED Va. June 26, 2020)

 

United States v. Yellin, No. 3:15-CR-3181-BTM-1, 2020 WL 3488738 (SD Cal. June 26, 2020)

Cotton v. United States, No. CR 16-20222-8, 2020 WL 3488752 (ED Mich. June 26, 2020)

United States v. Shannon, No. 13 CR 535, 2020 WL 3489491 (ND Ill. June 26, 2020)

United States v. Arango, No. 15-CR-104 (JMF), 2020 WL 3488909 (SDNY June 26, 2020)

United States v. Champagne, No. 4:97-CR-089, 2020 WL 3472911 (D N.D. June 25, 2020)

 

United States v. Thompson, No. 92-30065-001, 2020 WL 3470300 (CD Ill. June 25, 2020)

United States v. Danson, No. CR 10-0051 (PLF), 2020 WL 3467887 (D D.C. June 25, 2020)

United States v. Gaitan, No. 18-CR-4662-BAS-1, 2020 WL 3469395 (SD Cal. June 25, 2020)

United States v. Fabris, No. 17-CR-00386-VC-2, 2020 WL 3481708 (ND Cal. June 25, 2020)

United States v. Ollie, No. CR 1:12-09, 2020 WL 3469754 (WD Pa. June 24, 2020)

 

United States v. Schaffer, No. 13-cr-00220-MMC-1, 2020 WL 3481562 (ND Cal. June 24, 2020)

United States v. Arroyo, No. EP-6-CR-479-PRM-1, 2020 WL 3512964 (WD Tex. June 24, 2020)

As I have mentioned repeatedly, some rulings do not appear on Westlaw right away and others do not show up at all.  Indeed, this BOP page on the FIRST STEP Act has updated its reporting of total grants of "Compassionate Releases / Reduction in Sentences," and it now reports 774 grants when last week the page reported 706 grants.  These data continue to confirm my sense that less than half of all the granted motions end up on Westlaw.

One final note: though there surely are lots of fascinating stories within all these grants, I was especially intrigued to see the name  David Kent Fitch as a grant recipient.  That name is familiar to me because I previously blogged about Mr. Fitch's case when he was sentenced to an extra 15+ years of federal imprisonment after a district judge decided at sentencing that he committed a murder for which was never charged. (The details are discussed in these prior posts: Punished (twice?!?) for an uncharged murder in federal court and Split Ninth Circuit affirms huge upward departure based on uncharged murder.)  

Some of many prior recent related posts on CR grants:

July 5, 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)

The new death penalty: COVID now a leading modern killer of California inmates on death row

As reported in this local article, headlined "Fifth San Quentin Death Row Inmate Dies During Prison COVID-19 Outbreak," the global pandemic is hitting California's death row hard these days. Here are the details:

While California has not executed a death row inmate since 2006, an out-of-control COVID-19 outbreak at San Quentin State Prison may have contributed to the death of a fifth condemned inmate on Saturday.

To date, more than 1,300 prisoners and 120 staff members have tested positive for COVID-19 at the state prison in Marin County. Among those who have fallen victims to the deadly illness have been San Quentin’s aging population on death row.

On Saturday, Dewayne Michael Carey, 59, died at an outside hospital from what appear to be complications related to COVID-19. An exact cause of death has not yet been determined. Carey was committed to CDCR on Dec. 16, 1996 as a condemned inmate from Los Angeles County for first-degree, special-circumstances murder. He was convicted of killing Ernestine Campbell in her Harbor City home. Her hands were tied to a staircase handrail and she had been stabbed to death....

On Friday, the California Department of Corrections and Rehabilitation identified two inmates who died while being treated for COVID-19 infections as Scott Thomas Erskine, 57, and Manuel Machado Alvarez, 59. Both died while being treated at San Francisco Bay Area hospitals. Erskine had been on death row since 2004 for the murder of two young boys in San Diego, while Machado had been on death row since 1989 for a string of crimes in Sacramento including rape and murder.

There have been two other deaths of condemned inmates deaths amid an exploding number of coronavirus cases at the prison. Richard Stitely, 71, was found unresponsive in his cell last week on June 29 and was confirmed Monday to have tested positive for COVID-19. He was sentenced for the 1990 rape and murder of a 47-year-old woman in Los Angeles County.

Joseph S. Cordova, 75, was found dead in his cell on July 1. He had been sentenced to death for the rape and murder of an eight-year-old girl in San Pablo....

“The prison was built in 1852. It’s the oldest prison in the state and it’s got old grill cells, they’re not closed doors,” said Assemblyman Marc Levine. Levine says the style of the prison cells allowed the disease to spread like wildfire. He has been a strong critic of the botched handling of the pandemic....

The CDCR said there are currently 722 people on California’s death row. While California doesn’t currently have a way to carry out capital punishment, inmates still continue to be sentenced to death. Last year, Gov. Gavin Newsom declared a moratorium on it shortly after taking office and the death chamber at San Quentin was dismantled. The state has executed only 13 murderers since 1978, the last in 2006.

As this article highlights, nobody has been executed in California in nearly 15 years. And, as this Wikipedia page details, only five condemned California inmates have been executed by the state over the last two decades. As I have noted in prior posts (some linked below), COVID has been killing many more total prisoners in the US than has capital punishment. And now in California, COVID is even killing more death row prisoners that the state is likely to execute anytime soon, perhaps ever.

Prior related posts:

July 5, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Thursday, July 02, 2020

As July starts, "Total Federal Inmates" as reported by BOP, down to 160,690

On the cusp of a (long) weekend when we celebrate American freedom, it seems fitting that America's federal government is still experiencing a declining population of persons being deprived of freedom through its prison system.  Specifically, today's check on the federal Bureau of Prisons' updated "Total Federal Inmates" shows a continuation of historic declines: in a prior post here, I 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; though June, as detailed here, declines continued at a slightly reduced rate of about 950 persons on average.

As we start July, we start with a new historic low as the new BOP numbers at this webpage report "Total Federal Inmates" at 160,690.  (For recent context, the BOP reported population dropped from 164,438 (as of June 4) to 163,441 (as of June 11) to 162,578 (as of June 18) to 161,640 (as of June 25).)

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But with the recent surge in COVID cases many regions, perhaps the federal prison-population reverberations of COVID will be continuing on and on.  And so maybe, just maybe, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  

A few of many prior related posts:

July 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, July 01, 2020

Some additional helpful resources on compassionate release

As regular readers know, I have been making a weekly habit of posting lists of federal court rulings granting sentencing reductions pursuant to what is known colloquially as the federal compassionate release statute (recent examples here and here and here).  I surmise from feedback that these lists serve as helpful resources, and I am happy here to be able note here some additional materials that can aid those seeking compassionate releases.

For starters, the folks at FAMM have long been leaders on this front, and they have collected an extraordinary array of materials at this link.  In addition, the Amend at UCSF has put together here a set of original resources "to aid health care professionals/advocates in requesting compassionate release for incarcerated patients."  Especially notable are updated versions of a "Compassionate Release Sample Narrative Letter and Checklist Letter."

Last but certainly not least, I am pleased to report that Michael Gniwisch, a Penn Law student and legal intern at the Aleph Institute, gathered together a number of compassionate release cases from this blog and plugged them into a spreadsheet.  This detailed spreadsheet sorts the cases by district, nature of conviction, time left, illness, outbreak at facility, and exhaustion.  Michael's helpful work should make it easier for attorneys to find useful precedents, and Michael plans to keep updating the spreadsheet.  I am grateful for his efforts.

UPDATE: I am disappointed I forgot in this initial post to also flag this latest and timely FSR issue and some of the articles therein.  This issue covers, in the words of Jalila Jefferson-Bullock, how "amendments to compassionate release policies and the passage of the First Step Act represented opportunities for the federal prison system to provide relief to elderly offenders suffering ill-reasoned, illogically lengthy terms of incarceration."

July 1, 2020 in Impact of the coronavirus on criminal justice, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, June 30, 2020

Persistent prison problems as COVID-19 continues to course through carceral environments

It has been a few weeks since I rounded up, in this post and this post, some headlines and stories about incarceration nation's continued struggles with the coronavirus pandemic.  But ugly realities in carceral settings have not gone away, nor has the good reporting and research.  The first few pieces below are extended or updated reviews of national prison problems, the others are just a few media pieces providing snapshots of recent developments in a few particular jurisdictions:

From The Marshall Project, "A State-by-State Look at Coronavirus in Prisons"

From the Prison Policy Initiative, "What do we know about the spread — and toll — of the coronavirus in state prisons?"

From The Sentencing Project, "COVID-19 in Juvenile Facilities"

 

From the Alabama Political Reporter, "Sixth Alabama inmate dies after positive COVID-19 test"

From KWTX, "COVID-19 has claimed dozens of lives in Texas prisons"

From Lake County Record-Bee, "California prisons are COVID hotbeds despite billions spent on inmate health"

From the Miami Herald, "2 in Homestead are first female Florida prisoners to die of COVID-19, after 21 male fatalities"

From the Nashville Post, "CoreCivic reports $25M in profits as COVID infects 2,500+ inmates"

From New Mexico In Depth, "Massive COVID-19 outbreak at a southern NM prison hits just one type of inmates — sex offenders. That’s by design."

From WBEZ, "Democrats And Republicans Are Critical Of Pritzker’s Handling Of COVID-19 In Prisons"

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

Friday, June 26, 2020

"COVID-19 and Homicide: Final Report to Arnold Ventures"

The title of this post is the title of this very interesting new empirical paper that I can across yesterday. The 13-page work is authored by Thomas Abt, Richard Rosenfeld and Ernesto Lopez.  Here is its summary:

Did crime rates decline in response to the actions taken to address the COVID-19 pandemic?  Several reports have suggested that they did, in the United States and other nations (e.g., Jacoby, Stucka, and Phillips 2020; Mohler, Bertozzi, Carter, et al. 2020; Police Executive Research Forum 2020; Semple and Ahmed 2020).  Some cautioned that crime was not falling at the same pace everywhere, however, and in some US cities it was rising (Dolmetsch, Pettersson, Yasiejko 2020). These accounts are typically based on small samples of cities and brief time periods.

By contrast, the current study, to our knowledge the largest to date, compares monthly homicide rates in 64 US cities during January through June of 2020 with the previous three-year average homicide rates during the same months. We focus on homicide because it is the most serious and reliably measured criminal offense.  We find that, compared with the previous three-year average, homicide rates decreased during April and May of 2020.  Not all cities experienced a homicide decline, however, and the decreases during April were roughly twice as large as those in May.  With few exceptions, we did not find sizable differences between the cities in which homicides dropped and those where they rose.  We conclude by discussing several reasons why homicide rates in US cities might increase over the next several months.

June 26, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Thursday, June 25, 2020

Time for another long list of (mostly COVID-influenced) federal sentence reductions using § 3582(c)(1)(A)

I must admit that I might be starting to get just a bit fatigued by my repeated listings of new grants of federal sentence reductions using § 3582(c)(1)(A).  But these lists represent such a special kind of good news for federal prisoners and those that care about them, and I am not at all tired of seeing this heartening news each week as I assemble dozens of recent grants.  So:

United States v. Morrison, No. 19-cr-284-PWG, 2020 WL 3447757 (D Md. June 24, 2020)

United States v. Martin, No. DKC 04-0235-5, 2020 WL 3447760 (D Md. June 24, 2020)

United States v. Davis, 2:15-cr-00062-TLN, 2020 WL 3443400 (ED Cal. June 23, 2020)

United States v. Oaks, No. RDB-17-0288, 2020 WL 3433326 (D Md. June 23, 2020)

United States v. Smith, No. 4:18CR805 HEA, 2020 WL 3429150 (ED Mo. June 23, 2020)

 

United States v. Platte, No. 05-cr-208-JD-KJM-2, 2020 WL 3441979 (ED Cal. June 22, 2020)

United States v. Salvagno, No. 5:02-CR-51 (LEK), 2020 WL 3410601 (NDNY June 22, 2020)

United States v. Common, No. 17-cr-30067, 2020 WL 3412233 (CD Ill. June 22, 2020)

United States v. Faafiu, No. CR 17-0231 WHA, 2020 WL 3425120 (ND Cal. June 22, 2020)

United States v. Ladson, No. 04-697-1, 2020 WL 3412574 (ED Pa. June 22, 2020)

 

United States v. Austin, No. 06-cr-991 (JSR), 2020 WL 3447521 (SDNY June 22, 2020)

United States v. Lee, No. 1:95-cr-58 (LMB), 2020 WL 3422772 (ED Va. June 22, 2020)

United States v. Bayuo, No. 15-cr-576 (JGK), 2020 WL 3415226 (SDNY June 20, 2020)

United States v. Richardson, No. 2:17-cr-00048-JAM, 2020 WL 3402410 (D Conn. June 19, 2020)

United States v. Garcia-Zuniga, No. 19cr4139 JM, 2020 WL 3403070 (SD Cal. June 19, 2020)

 

United States v. Jackson, No. 2:18-cr-86-PPS, 2020 WL 3396901 (ND Ind. June 19, 2020)

United States v. Calabrese, No. 16-30033-TSH, 2020 WL 3316139 (D Mass. June 18, 2020)

United States v. Clark, No. 4:08-CR-00096, 2020 WL 3395540 (SD Iowa June 17, 2020)

United States v. Joseph, No. 18-CR-156, 2020 WL 3270885 (ED Wisc June 17, 2020)

United States v. Johnson, No. JKB-14-356, 2020 WL 3316221 (D Md. June 17, 2020)

 

United States v. Kess, No. ELH-14-480, 2020 WL 3268093 (D Md. June 17, 2020)

United States v. Quinn, No. 91-cr-00608-DLJ-1 (RS), 2020 WL 3275736 (ND Cal. June 17, 2020)

United States v. Cruz, No. 3:17-cr-00075-JO-4, 2020 WL 3265390 (D Ore. June 17, 2020)

As I have mentioned repeatedly, some rulings do not appear on Westlaw right away and others do not show up at all.  Indeed, this BOP page on the FIRST STEP Act has updated its reporting of total grants of "Compassionate Releases / Reduction in Sentences," and it now reports 706 grants when last week the page reported 650 grants.  These data confirm my sense from various sources that around 50 sentence reductions are now being granted each week of the COVID era.

Prior recent related posts since lockdowns:

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

"Failing Grades: States’ Responses to COVID-19 in Jails & Prisons"

Newsletter_covidgrading_2.111929The title of this post is the title of this notable new ACLU and Prison Policy Initiative report by Emily Widra and Dylan Hayre.  Here is how it gets started:

When the pandemic struck, it was instantly obvious what needed to be done: take all actions possible to “flatten the curve.”  This was especially urgent in prisons and jails, which are very dense facilities where social distancing is impossible, sanitation is poor, and medical resources are extremely limited.  Public health experts warned that the consequences were dire: prisons and jails would become petri dishes where, once inside, COVID-19 would spread rapidly and then boomerang back out to the surrounding communities with greater force than ever before.

Advocates were rightly concerned, given the long-standing and systemic racial disparities in arrest, prosecution, and sentencing, that policymakers would be slow to respond to the threat of the virus in prisons and jails when it was disproportionately poor people of color whose lives were on the line.  Would elected officials be willing to take the necessary steps to save lives in time?

When faced with this test of their leadership, how did officials in each state fare? In this report, the ACLU and Prison Policy Initiative evaluate the actions each state has taken to save incarcerated people and facility staff from COVID-19.  We find that most states have taken very little action, and while some states did more, no state leaders should be content with the steps they’ve taken thus far.  The map below shows the scores we granted to each state, and our methodology explains the data we used in our analysis and how we weighted different criteria.

The results are clear: despite all of the information, voices calling for action, and the obvious need, state responses ranged from disorganized or ineffective, at best, to callously nonexistent at worst.  Even using data from criminal justice system agencies — that is, even using states’ own versions of this story — it is clear that no state has done enough and that all states failed to implement a cohesive, system-wide response.

In some states, we observed significant jail population reductions.  Yet no state had close to adequate prison population reductions, despite some governors issuing orders or guidance that, on their face, were intended to release more people quickly.  Universal testing was also scarce.  Finally, only a few states offered any transparency into how many incarcerated people were being tested and released as part of the overall public health response.  Even in states that appeared, “on paper,” to do more than others, high death rates among their incarcerated populations indicate systemic failures.

The consequences are as tragic as they were predictable: As of June 22, 2020, over 570 incarcerated people and over 50 correctional staff have died and most of the largest coronavirus outbreaks are in correctional facilities.  This failure to act continues to put everyone’s health and life at risk — not only incarcerated people and facility staff, but the general public as well.  It has never been clearer that mass incarceration is a public health issue.  As of today, states have largely failed this test, but it’s not too late for our elected officials to show that they can learn from their mistakes and do better.

For a kind of video version of this story of significant and dangerous failure, also be sure to check out John Oliver's coverage.

Just a few of many, many prior posts from just the last month:

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

Federal prison population, per BOP accounting of "Total Federal Inmates," drops down to 161,640

Today's check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers show a continuation of historic declines, though it again appears that the pace of the decline is slowing just a bit.  In a prior post here, I highlighted that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week.  And through May 2020, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners in federal facilities.  As we headed into and now though June, the new numbers at this webpage continue to show significant, but slightly reduced, weekly declines: the BOP reported population dropped from 166,647 (as of May 21) to 165,575 (as of May 28) to 164,438 (as of June 4) to 163,441 (as of June 11) to 162,578 (as of June 18) to now a BOP reported total of 161,640.

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But with the recent surge in COVID cases in some regions and some talk of renewed shut-downs, perhaps the federal prison-population reverberations of COVID will be continuing on and on.  And maybe, as I have wistfully speculated before, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  

A few of many prior related posts:

June 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, June 24, 2020

Latest (and free) Federal Sentencing Reporter issue on "Creating a Crisis: Growing Old in Prison"

As mentioned in this prior post, the academic publisher of the Federal Sentencing ReporterUniversity of California Press, has responded to the impact of the coronavirus crisis by making all UC Press online journal content free to everyone through June 2020.  I continue to be grateful to UC Press for this move, especially now that it allows me to flag this latest and timely FSR issue and some of the articles therein.  This new issue was put together by guest editor Jalila Jefferson-Bullock, and here are a few paragraphs taken from her introduction to the issue which provides a partial overview:

The Creation of a Crisis by Jalila Jefferson-Bullock:

This Issue of FSR is dedicated to the critical matter of aging in prison.  While COVID-19 media coverage currently highlights the plight of our most vulnerable prisoners, the graying of America’s prisons is nothing new.  One of the most foreseeable, yet ironically ignored, consequences of the harsh sentencing laws of the 1980s and 1990s is the dramatic upsurge in prison population through the predictable process of human aging.  Presently, elderly inmates comprise 19% of the total prison population, and that number continues to rise.  The cost of medical care for elderly offenders is five times greater for prisons with the greatest elderly population than for those with the least amount of elderly inmates, due, in large part, to factors that naturally accompany growing older.  Prisoners also experience accelerated aging and therefore require varied medications, special diets, social interventions, and individualized supervision much earlier than members of the general population of the same age.  By their own admission, prisons are ill-equipped to manage the mammoth health care, social, and other costs associated with imprisoning the elderly.  The costs of incarcerating aged offenders are quite unsustainable....

This Issue tackles the prison ‘‘silver tsunami’’ phenomenon rather creatively.  Our contributors include established law and sociology scholars, practicing attorneys, veteran politicians, and returned citizens.  Their voices herald personal narrations of the inhumanity of prion health care, the power of redemption after long years of confinement in a brutal prison system, the importance of committed, community partnerships in rebuilding retuned citizens’ lives, and deep, scholarly insight into the actual, harsh conditions that vulnerable, elderly inmates face.  This Issue represents various, unique perspectives on the crisis of aging in prison and, overall, provides a glimpse into what life is like for the incarcerated elderly.  Here, we read firsthand accounts of the inability of the prison system to safeguard its most vulnerable population.  We also learn, through authentic accounts, that despite the injustice doled out to our imprisoned elderly, there is hope and the prospect of embracing a new, bright future. 

Amendments to compassionate release policies and the passage of the First Step Act represented opportunities for the federal prison system to provide relief to elderly offenders suffering ill-reasoned, illogically lengthy terms of incarceration.  Unfortunately, neither resulted in widespread releases.  In the wake of COVID-19, policies authorized by the CARES Act offer an occasion to explore early release of elderly offenders afresh.  This time, we must get it right.  

Along with the introduction and relevant primary materials, this FSR issues includes these articles:

A Divinity That Shapes Our Ends: From Life Without Parole to the House of Life Initiative by The Elsinore Bennu Think Tank for Restorative Justice
The Unusual Cruelty of Nursing Homes Behind Bars by Rachel E. López
The Personal Case For Releasing The Elderly A Real Second Chance by Thomas J. Farrell
The Special Perils of Being Old and Sick in Prison by William J. Jefferson
Emergency Parole Release for Older Parole-Eligible DOC Inmates by David I. Bruck
Let My People Go: A Call for the Swift Release of Elderly Federal Prisoners in the Wake of COVID-19 by Jalila Jefferson-Bullock

June 24, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

"Crisis and Coercive Pleas"

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

Even in the best of times, trials are rare.  In the midst of the current pandemic, trials have vanished altogether in certain parts of the country; in other areas they occur sporadically as courts grapple with how to hold trials safely.  This makes sense from a public health perspective, but the lack of trials, along with other challenges posed by the coronavirus crisis, poses a heightened risk that defendants will be coerced into false and unfair pleas.

Coercive pleas are part and parcel of the criminal system, but the current crisis provides several avenues for even greater abuse of defendants through the plea process.  In Part I of this essay I explore the particular concerns related to plea bargaining during the COVID-19 crisis and address three broad areas: 1) the particularized fear of a prison or jail sentence during a pandemic, 2) the difficulty with holding — or complete lack of — jury trials, and 3) issues with access to counsel and other procedural challenges that defendants will face during and after the crisis.

Part II offers some solutions to mitigate the risk of coercive pleas.  The essay encourages criminal courts to think about holding jury trials via video, despite the many obvious challenges.  The essay also defines several ways in which judges can take a more active role in protecting against coercive pleas during the pandemic.  And, as the essay explores, this crisis may also provide opportunities for creative problem solving that can outlast the virus.

June 24, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, June 23, 2020

Senators Durbin and Grassley introduce new bill to make modest, but still important, reforms to federal elderly home release and compassionate release

As reported in this new press release, "U.S. Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA), authors of the bipartisan First Step Act, landmark criminal justice reform legislation, introduced new, bipartisan legislation to reform the Elderly Home Detention Pilot Program and compassionate release from federal prisons. "  The release provides some notable contextual data and well some details of the bill's particulars:

Sadly, more than 80 federal prisoners with pre-existing medical conditions that made them more vulnerable to COVID-19 have died as a result of the virus, more than half of whom were over 60 years old.  Elderly offenders, the fastest-growing portion of the prison population, have much lower rates of recidivism and are much more expensive to incarcerate due to their health care needs. 

Since enactment of the First Step Act, the Federal Bureau of Prisons (BOP) has opposed the vast majority of compassionate release petitions.  In 2019, 1,735 requests for release were initiated by or on behalf of prisoners, of which 1,501 were denied by wardens and 226 of which were forwarded to the BOP Director.  Of these 226, BOP approved only 55 and denied 171.  Since March of this year, only about 500 inmates have been granted compassionate release in the midst of the pandemic, nearly all of them by court order over the objections of the Department of Justice and BOP.  BOP has reportedly refused to approve any compassionate releases based on vulnerability to COVID-19.

“At the end of 2018, Congress came together to pass one of the most important criminal justice reform laws in a generation.  Now we have an obligation to ensure that this law is properly implemented,” Durbin said.  “My legislation with Senator Grassley would help ensure that the most vulnerable prisoners are quickly released or transferred to home confinement for the remainder of their sentence – just as the First Step Act intended.  This is especially critical during the COVID-19 pandemic to protect against the spread of this deadly virus.  I’m hopeful that this commonsense, bipartisan legislation will pass swiftly through the House and Senate and will be signed into law.”

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

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

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

The following organizations support the COVID-19 Safer Detention Act:  Aleph Institute, Americans for Tax Reform and Digital Liberty, Drug Policy Alliance, Due Process Institute, FAMM, Federal Public and Community Defenders, FreedomWorks, Justice Action Network, National Association of Criminal Defense Lawyers (NACDL), Right on Crime, Sentencing Project, Taking Action For Good, Texas Public Policy Foundation (TPPF), and Tzedek Association.

A section-by-section of the legislation is available here.

Bill text is available here.

I have placed in bold the provisions of this new bill that strike me as particularly noteworthy and that could prove most consequential. In short form, this bill would seem to authorize (though not require) judges to move most persons over the age of 60 from federal prison into home confinement as soon as they approach serving about half of their initially imposed prison sentence.  Sound like a great idea to me, and it also sounds like another version of another kind of "parole light" proposal of the sort I discussed a few years ago in this article

June 23, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

An NYC window into COVID's disruption of the administration of criminal justice

The New York Times has this lengthy new front-page article under the headline "Pandemic Pushes New Yorkers Into Legal Limbo."  The piece merits a full read as just one version of so many stories about how COVID is echoing through criminal justice systems.  Here are some excerpts:

The coronavirus outbreak is putting extraordinary stress on New York City’s judicial system, forcing lengthy delays in criminal proceedings and raising growing concerns about the rights of defendants.

Since February, the backlog of pending cases in the city’s criminal courts has risen by nearly a third — to 39,200.  Hundreds of jury trials in the city have been put on hold indefinitely.  Arraignments, pleas and evidentiary hearings are being held by video, with little public scrutiny.  Prosecutions have dropped off, too, as the authorities have tried to reduce the jail population.

Three months into the crisis, the city’s once bustling courthouses are barely recognizable.  Their spacious lobbies and halls, formerly filled with people, are nearly empty, and in the courtrooms clerks in surgical masks tend to virtual hearings on giant video screens.  Two centuries of face-to-face judicial traditions have either been cast aside or moved online....

Two weeks ago, the state courts in New York City took a first small step toward physically reopening: Judges started returning to their chambers, though they are still holding court virtually.  No one has quite figured out yet how to bring the public back safely to New York City courthouses, nor how to resume trials and state grand jury hearings. Officials said the challenge of balancing public health and the requirements of the law is likely to persist for some time.  “It’s a situation we’ve just never seen before,” said Melinda Katz, the Queens district attorney....

The halt on jury trials, while highly unusual and difficult for defendants, has not yet reached a crisis point.  Even under the best conditions, it can take years for cases to move from arrest to trial, and only about 5 percent ever get that far; most end with a plea bargain.  Still, jury trials are the heart of the justice system, and state court officials face significant hurdles as they resume.  “I can’t tell you we have a precise plan,” said Judge Lawrence Marks, the state’s chief administrative judge. “It will be one of the last phases.”

Unlike other court proceedings, jury trials require people to hear evidence together and then deliberate in close quarters.  “The whole idea of ‘12 Angry Men’ screaming at each other over a telephone, over a Zoom network, would be ridiculous,” said one defense lawyer, Joel Cohen.

In Federal District Court in Manhattan, architects and carpenters have been redesigning courtrooms, building jury boxes with additional space and inserting plexiglass dividers to keep jurors safer. Shields are being put in front of witness stands and at lecterns where lawyers argue.  Certain precautions that are being considered may raise legal issues.  “You can’t put a mask on the witnesses in a criminal trial because the defendant has the right to see them,” Chief Judge Colleen McMahon said.  “Jury trials are way, way down the road,” she added.

Some jurists warn that a prolonged delay in resuming trials could violate the Constitution.  “If well past July and for months to come, it is still dangerous for 12 people to gather together in tight quarters to hear and determine civil and criminal cases, it is not easy to see how the constitutional right to a jury trial will be genuinely met,” Judge Jed S. Rakoff wrote in The New York Review of Books....

People who are arrested no longer set foot inside a physical courtroom to hear the charges against them in an arraignment. They now sit in a windowless booth in a courthouse cell, looking into a camera and speaking into a microphone on the wall.  Felony arraignments have fallen by 50 percent this spring compared to last, largely because far fewer people were arrested in the first weeks of the pandemic.  That has made the transition to video somewhat easier, though not any faster.  In the months after the courts moved to a virtual system, the average arrest-to-arraignment time has increased by as much as three hours.

Before the pandemic, lawyers generally did most of the talking in court. In the video hearings, defendants, no longer in the same room as their lawyers, have been more prone to sudden and sometimes incriminating outbursts....  Tina Luongo, chief criminal defender for the Legal Aid Society, mentioned another challenge: The inability to see a witness's body language and quietly confer with the defendant seriously hampers defense lawyers. “We’ve got to figure that out,” she said. “When we’re all on one Skype link, how do I talk to my client in a confidential way?”  Before hearings begin, lawyers can meet virtually with clients in private Skype conference rooms, but the system is not foolproof....

Perhaps the biggest headache for the state courts has been the inability to convene grand juries, which given their size — they are usually composed of 16 to 23 people — have been unable to gather safely. Grand juries have traditionally acted as a citizen’s check on overzealous prosecutions by scrutinizing evidence and approving formal charges. They are also used by state and federal prosecutors to conduct long-term investigations.  Without them, the rights of both defendants and crime victims are less assured....

Unable to convene grand juries, the city’s five district attorneys are turning instead to preliminary hearings, which have not been conducted in New York in decades.  At the hearings, judges hear witnesses, consider evidence and decide if prosecutors’ charges are warranted. Like everything else these days, these hearings are being held by video....

The city’s two federal courts, in Manhattan and Brooklyn, have adapted more smoothly to the crisis.  Under their auspices, grand jurors began meeting again recently outside the city, in White Plains and Central Islip.  And in both courts, regular audio and video hearings have been held, with dial-in numbers for the public clearly posted on electronic dockets.  But obstacles remain, like how to bring in large numbers of prospective jurors for screening.

Disappointingly, this piece does not address sentencing issues and challenges in state or federal courts.  As always, I welcome comment from readers about their recent COVID-shaped experiences in that arena.

June 23, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Friday, June 19, 2020

More notable reporting on the persistently notable carceral challenges posed by COVID-19

It has only been a few days since I rounded up, in this post, some headlines and stories about incarceration nation's continued struggles with the coronavirus pandemic.  But, in just that short time, I have seen enough notable new pieces that I thought it time to do another one.  The first two pieces are lengthy accounts of prison failings and worth every moment, the others provide a snapshot of ugly realities in particular jurisdictions:

From The Marshall Project, "'I Begged Them To Let Me Die': How Federal Prisons Became Coronavirus Death Traps."

From ProPublica, "The Prison Was Built to Hold 1,500 Inmates. It Had Over 2,000 Coronavirus Cases."

 

From The Guardian, "San Quentin: outcry after Covid-19 cases at California prison triple in two weeks"

From KVUE, "State prisons remain a hot spot for COVID-19 in Texas"

From The News & Observer, "North Carolina to test all 31,200 state prison inmates for coronavirus"

From the St. Louis Post-Dispatch, "The coronavirus continues to spread in the Missouri prison system"

From The Spokesman-Review, "Central Washington prison has high number of COVID-19 cases"

From WTOC (Georgia), "Coastal State Prison reports highest number of inmate deaths related to COVID-19"

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

Wednesday, June 17, 2020

Though only mid-week, another long list of new COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

I hope readers are not yet getting bored of my listing of COVID-influenced grants of federal sentence reductions using § 3582(c)(1)(A).  I have recently made a habit of assembling these lists on the weekends (see recent examples here and here).  But last week I put together this post with more than two dozen grants on a Friday because there were so many new sentence reductions being reported on Westlaw.  And, as this trend continues, I now felt a need to do a mid-week review of recent grants recently appearing on Westlaw.  So:

United States v. Lynn, No. 89-0072-WS, 2020 WL 3229302 (SD Ala. June 15, 2020)

United States v. Liew, No. 11-cr-00573-JSW-1, 2020 WL 3246331 (ND Cal. June 15, 2020)

United States v. Miller, No. 3:15-cr-132-2 (VLB), 2020 WL 3187348 (D Conn. June 15, 2020)

United States v. Head, No. 2:08-cr-00093-KJM-2, 2020 WL 3180149 (ED Cal. June 15, 2020)

United States v. Rivera, No. 3:13-cr-71-1 (VLB), 2020 WL 3186539 (D Conn. June 15, 2020)

 

United States v. Acevedo, No. 18 CR. 365 (LGS), 2020 WL 3182770 (SDNY June 15, 2020)

United States v. Lavy, No. 17-20033-JAR, 2020 WL 3218110 (D Kan. June 15, 2020)

United States v. Patel, No. 3:17cr164 (JBA), 2020 WL 3187980 (D Conn. June 15, 2020)

Segars v. United States, No. 16-20222-3, 2020 WL 3172734 (ED Mich. June 15, 2020)

United States v. Madrigal, No. 5:18-cr-00356-EJD-3, 2020 WL 3188268 (ND Cal. June 15, 2020)

 

United States v. Knox, No. 2:16-cr-00116-MHH-JHE-3, 2020 WL 3207799 (ND Ala. June 15, 2020)

United States v. Reed, No. 12-CR-161 YGR, 2020 WL 3128904 (ND Cal. June 13, 2020)

United States v. Bikundi, No. 14-30-2 (BAH), 2020 WL 3129018 (D D.C. June 12, 2020)

United States v. White, No. 2:17-cr-00198-4, 2020 WL 3244122 (SD W. Va. June 12, 2020)

United States v. Heitman, No. 3:95-CR-0160(4)-G, 2020 WL 3163188 (ND Tex. June 12, 2020)

 

United States v. Fields, No. 2:05-CR-20014-02, 2020 WL 3129056 (WD La. June 11, 2020)

United States v. Halliburton, No. 17-cr-20028, 2020 WL 3100089 (CD Ill.  June 11, 2020)

United States v. DeBartolo, No. 14-016 WES, 2020 WL 3105032 (D R.I. June 11, 2020)

As I have mentioned repeatedly, some rulings do not appear on Westlaw right away and others do not show up at all.  As of this writing (mid-afternoon of June 17), this BOP page on the FIRST STEP Act is reporting 650 total grants of "Compassionate Releases / Reduction in Sentences."  The same BOP page reported less than 150 such grants before the COVID era began, so I think we can now confident state that there have been over 500 federal sentence reductions grants in the just the last three months.  Some of those grants are detailed in some of the posts below, and I am hopeful the US Sentencing Commission or someone else "official" might have a truly comprehensive report on these matters before too long.

Prior recent related posts since lockdowns:

June 17, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, June 16, 2020

Another round-up of troubling carceral headlines and stories as coronavirus continues to ravage incarcerated populations

I did a round-up post last week of headlines and stories as a reminder of dire realities that persist as incarceration nation continues to confront a coronavirus pandemic.  As assembled below, a big new story from the New York Times highlighting increased COVID cases and deaths is just one of a number of new disconcerting stories emerging from our jails and prisons:

From ABC News, "Lawmakers worry about COVID-19 spread after Bureau of Prisons officers deployed to protests"

From The Appeal, "Grim Stories From Inside An Arkansas Prison Capture The Toll Of Covid-19"

From The Hill, "Coronavirus deaths up 73 percent in US prisons in past month: report"

From The New Yorker, "Punishment by Pandemic: In a penitentiary with one of the U.S.’s largest coronavirus outbreaks, prison terms become death sentences."

From the New York Times, "Coronavirus Cases Rise Sharply in Prisons Even as They Plateau Nationwide"

From NPR, "As COVID-19 Spreads In Prisons, Lockdowns Spark Fear Of More Solitary Confinement"

From Quartz, "There are more Covid-19 cases in some US prisons than in entire countries"

From STAT, "‘Obsessed with staying alive’: Inmates describe a prison’s piecemeal response to a fatal Covid-19 outbreak"

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

Saturday, June 13, 2020

"Pandemics, Risks and Remedies"

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

There are lessons in every catastrophe, and the impact of Coronavirus-19 (“COVID”) on America’s prisoner population has been especially catastrophic.  Jails and prisons are sites of unique peril because each facility bears the systemic risk of a single infection.  That COVID tore through these facilities was predictable — the health infrastructure is deplorable, social distancing is impossible, and the community has heightened medical vulnerabilities.  These places are pandemic tinder boxes, and COVID was more than enough to kindle the blaze.

There is a temptation to view America’s inability to protect her prisoners as a simple failure of political and bureaucratic will, but the shortage of such resolve was just one part of a more complex institutional disaster.  In this Paper, I argue that COVID exposed a remedial deficit between pandemic risks that were systemic and remedies that were not.  In so doing, I explore the surprisingly poor performance of the mechanisms that one might have expected to facilitate sufficient prisoner discharge: federal civil rights litigation, administrative release, and clemency power.

The systemic health risk at jails and prisons requires remedies that are fast and scalable, but existing discharge mechanisms are too slow, require too much multilateral consensus, and concentrate discharge powers in the wrong institutions.  To address future waves of pandemic infection, American jurisdictions should concentrate discharge powers in decision-makers who are closer to the most acutely affected localities.  A concentration-and-localization principle is also a model for a broader back-end decarceration strategy.

June 13, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, June 12, 2020

So many more federal sentence reductions using § 3582(c)(1)(A) to report before week concludes

Readers may recall this post from mid May listing more than two dozen grants of sentence reductions under § 3582(c)(1)(A) in one week showing up on Westlaw, and this latest posting reporting on grants from the first week on June showing comparable activity with sentence reduction grants.  As the long listing below highlights, the sentence reduction hits just keep on coming; I felt compelled to compile these grants before the week is out because there are already so many (and included below are few stragglers from last week that only recently appeared on Westlaw):

United States v. Padilla, No. 19-cr-03331-GPC, 2020 WL 3100046 (SD Cal. June 11, 2020)

United States v. Gamboa, No. 09-1741 JAP, 2020 WL 3091427 (D N.M.  June 11, 2020)

United States v. Williams, No. 06-cr-0143 (WMW/FLN), 2020 WL 3097615 (D Minn. June 11, 2020)

United States v. Nazzal, No. 10-20392, 2020 WL 3077948 (ED Mich. June 10, 2020)

United States v. Williams, No.19-cr-134-PWG, 2020 WL 3073320 (D Md. June 10, 2020)

 

United States v. Blye, No.  CR15-348RSL, 2020 WL 3064225 (WD Wash. June 9, 2020) 

United States v. Goins, No. 11-cr-20376, 2020 WL 3064452 (ED Mich. June 9, 2020)

United States v. Mason, No. 3:17-CR-104-CWR-LRA-3, 2020 WL 3065303 (SD Miss. June 9, 2020)

United States v. Malone, No. 12-146-03, 2020 WL 3065905 (WD La. June 9, 2020)

United States v. Dana, No. 3:17-cr-148-SI, 2020 WL 3056791(D Ore. June 9, 2020)

 

United States v. Lott, No. 95cr72, 2020 WL 3058093 (SD Cal. June 8, 2020) (stacked 924(c) case)

United States v. Parramore, No. CR18-156-RSM, 2020 WL 3051300 (WD Wash. June 8, 2020) 

United States v. Krashna, No. 17-cr-00022-JSW-1, 2020 WL 3053194 (ND Cal. June 8, 2020)

United States v. Rodriguez, No. 17-CR-157 (VEC), 2020 WL 3051443 (SDNY June 8, 2020) 

United States v. Conner, No. CR07-4095-LTS, 2020 WL 3053368 (SD Iowa June 8, 2020) 

 

United States v. Flores, No. 19-CR-6163L, 2020 WL 3041640 (WDNY June 8, 2020) 

United States v. Folwer, No. 17-cr-00412-VC-1, 2020 WL 3034714 (ND Cal. June 6, 2020)

United States v. Holmes, No. 14-00167 (DWF/LIB), 2020 WL 3036598 (D Minn. June 5, 2020)

United States v. Smith, No. 15-cr-30039, 2020 WL 3027197 (CD Ill. June 5, 2020)

United States v. Fettis, No. 17-cr-30003, 2020 WL 3027198 (CD Ill. June 5, 2020)

 

United States v. McCall, No. 2:18cr95-MHT, 2020 WL 2992197 (MD Ala. June 4, 2020)

United States v. Riley, No. ELH-16-0402, 2020 WL 3034843 (D Md. June 4, 2020)

United States v. Burke, No. 4:17-CR-3089, 2020 WL 3000330 (D Neb.. June 4, 2020)

United States v. Green, No. TDC-10-0761, 2020 WL 2992855 (D Md. June 4, 2020)

Abdallah v. United States, No. 4:15-cr-18(3), 2020 WL 3039122 (ED Va. June 4, 2020)

As I have mentioned before, late week rulings often do not appear on Westlaw right away, so there are likely to be additional grants from this week that will appear on Westlaw later.  And, of course, these Westlaw listings do not represent all sentence reductions being granted by federal courts these days; I have noted data in a Marshall Project article leading me to think Westlaw picks up at most half of all federal sentence reduction grants.  Indeed, I recently heard from a good authority that there were an average of more than 50 of these grants per week for the month of May.  So, even with this long list of 25 new sentence reduction grants from Westlaw, this list still likely represents only about 50% of the true total.

Prior recent related posts since lockdowns:

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

Thursday, June 11, 2020

"Total Federal Inmates," as reported by BOP, drops another 1000 down to 163,441

This morning's check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers continue the extended pattern of big weekly drops in the overall numbers. In prior posts here and here, I have highlighted that, according to BOP's reporting, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  As we have been move from May into June, the new numbers at this webpage continue to show comparable weekly declines: the BOP reported population dropped from 167,803 (as of May 14, 2020) to 166,647 (as of May 21) to 165,575 (as of May 28) to 164,438 (as of June 4) and now a BOP reported total of 163,441.

I continue to fear that this persistent decline in total inmates is mostly a function of delays in the case-processing pipelines from COVIS shutdowns and that we will eventually see a (considerable?) a move upward in these numbers.  But maybe maybe we are still some ways from the bottom here and perhaps a much lower "new normal" for the federal prison population.  In the decade from 2006 to 2016, the BOP reported federal prison population averaged over 200,000 prisoners.  Would I be foolish to want to believe the decade of the 2020s might possibly see an average of under 150,000?  Could we dream of returning to the days of 1995 when the federal prison population was just 100,000?

A few of many prior related posts:

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

Wednesday, June 10, 2020

Split Sixth Circuit panel vacates district court order to transfer vulnerable prisoners "out of Elkton through any means"

A few months ago, as detailed here, US District Judge James Gwin granted a preliminary injunction ordering federal officials to identify, and then start moving out, medically vulnerable prisoners from the Elkton federal prison in Ohio.  Federal officials appealed this order to the Sixth Circuit, but a Sixth Circuit panel refused initially to stay it, and thereafter Judge Gwin issued this follow-up order which stated that "Respondents have made poor progress in transferring subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction Order."  The feds ultimately was able to get these actions stayed by the Supreme Court, and late yesterday a split Sixth Circuit panel vacated the injunction upon concluding, by a 2-1 vote, "that the district court abused its discretion in granting the preliminary injunction."

This Politico piece, headlined "Appeals court nixes order to shrink prison rolls because of virus," provides a usefully summary of the nearly 30 pages of opinions:

A divided federal appeals court has overturned a judge's order that required a federal prison in Ohio hard hit by the coronavirus to cut its inmate population by sending medically vulnerable prisoners home or to other prisons. A panel of the 6th U.S. Circuit Court of Appeals split 2-1 as it struck down the lower court's order to thin the ranks at the Elkton Federal Correctional Institution in Lisbon, Ohio, after a Covid-19 outbreak there that has cost 19 lives. More than a quarter of the roughly 2,000 inmates at Elkton have tested positive for the virus.

U.S. District Judge James Gwin ruled in April that prison officials were not doing enough to mitigate the danger to inmates. He ordered that officials transfer or release elderly prisoners and those with health conditions believed to lead to serious illness from the coronavirus.

However, the appeals court's majority said the steps the Bureau of Prisons took — such as screening for symptoms, limiting visitation, increasing cleaning and providing masks — meant officials were not deliberately endangering prisoners in a way that made their punishment "cruel and unusual" under the Constitution. "The BOP argues that these actions show it has responded reasonably to the risk posed by Covid-19 and that the conditions at Elkton cannot be found to violate the Eighth Amendment. We agree," Judge Julia Gibbons wrote, joined by Judge Deborah Cook.

BOP was slow to roll out widespread testing at Elkton, even as Ohio state officials moved much faster to get mass testing underway at one of their badly hit prisons. But Gibbons said the federal officials' effort met the legal standard. "The BOP initally struggled to scale up its testing capacity just before the district court issued the preliminary injunction, but even there the BOP represented that it was on the cusp of expanding testing. The BOP’s efforts to expand testing demonstrate the opposite of a disregard of a serious health risk," she wrote. Gibbons also chided Gwin for failing to address "how the released inmates would look after themselves."

Chief Judge R. Guy Cole Jr. dissented, saying federal officials were too slow to respond to the rising death toll at the prison. "I am left with the inescapable conclusion that the BOP’s failure to make use of its home confinement authority at Elkton, even as it stared down the escalating spread of the virus and a shortage of testing capacity, constitutes sufficient evidence for the district court to have found that petitioners were likely to succeed on their Eighth Amendment claim," Cole wrote.

Cole also faulted the Bureau of Prisons for offering action plans detailing a multiphase response, where the details left much to be desired. One phase consisted entirely of gathering and inventorying cleaning supplies, he wrote. "The BOP’s multiphase response does not include a single phase that allows for meaningful social distancing," the judge added.

The 6th Circuit panel split along ideological lines. Gibbons and Cook are appointees of President George W. Bush. Cole was appointed by President Bill Clinton.

Advocates for inmates expressed disappointment in the decision. “Today’s ruling is a major loss for incarcerated people who are at risk from this deadly disease,” said David Carey of the ACLU of Ohio, which brought the lawsuit. “With hundreds of people currently sick, and nearly everyone else at Elkton exposed, the federal government has a duty to take quick and decisive action."

Prior related posts:

June 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Two notable recent studies detailing connections between incarceration and community spread of COVID-19

One important theme of much COVID-era advocacy for decarceration efforts (early examples here and here and here) was that reducing the density of jails and prisons, and thereby slowing the spread of coronavirus, is critical not just for the well-being of incarcerated persons, staff and their families, but also for the communities and the general public around prison facilities.  In recent days, I have seen these two interesting new studies that explore various connections between incarceration and local community spread of this harmful virus:

Incarceration And Its Disseminations: COVID-19 Pandemic Lessons From Chicago’s Cook County Jail by Eric Reinhart and Daniel Chen:

Abstract: "Jails and prisons are major sites of novel coronavirus (SARS-CoV-2) infection.  Many jurisdictions in the United States have therefore accelerated release of low-risk offenders.  Early release, however, does not address how arrest and pre-trial detention practices may be contributing to disease spread.  Using data from Cook County Jail, in Chicago, Illinois, one of the largest known nodes of SARS-CoV-2 spread, we analyze the relationship between jailing practices and community infections at the zip-code level.  We find that jail cycling is a significant predictor of SARS-CoV-2 infection, accounting for 55 percent of the variance in case rates across zip codes in Chicago and 37 percent in Illinois. By comparison, jail cycling far exceeds race, poverty, public transit utilization, and population density as a predictor of variance.  The data suggest that cycling through Cook County Jail alone is associated with 15.7 percent of all documented novel coronavirus disease (COVID-19) cases in Illinois and 15.9 percent in Chicago as of April 19, 2020.  Our findings support arguments for reduced reliance on incarceration and for related justice reforms both as emergency measures during the present pandemic and as sustained structural changes vital for future pandemic preparedness and public health."

Incarceration Weakens a Community’s Immune System: Mass Incarceration and COVID-19 Cases in Milwaukee Preliminary Results by Gipsy Escobar and Sema Taheri

"Following on the findings from previous research, we hypothesize that communities with higher levels of incarceration are more vulnerable to the spread of COVID-19 due to the impacts of mass incarceration on collective efficacy and concentrated disadvantage.  We look at the effect of the number of people sentenced to incarceration in 2015 on the concentration of COVID-19 cases between March 15 and May 11, 2020 at the census tract in Milwaukee county....

"In the context of ecological criminology, we explored the effect of incarceration rates on the number of COVID-19 cases in Milwaukee County neighborhoods and found preliminary support for our hypothesis.  The number of incarcerations is a strong predictor of the number of COVID-19 cases above and beyond the effect of other predictors in the model, including poverty, unemployment, and population not in the labor force.  Indeed, incarceration is an aggravating factor in poor health outcomes for disadvantaged communities."

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

Tuesday, June 09, 2020

Rounding up some carceral headlines and stories as COVID continues

With other criminal justice news grabbing more headlines these days, it is dangerously easy to forget the dire realities that persist as incarceration nation continues to confront a coronavirus pandemic.  Here is a quick round-up of some recent headlines and stories to remind everyone that this tale is still unfolding in many particulars:

From CorrectionsOne, "COVID-19 cases continue to climb at Wash. state prison"

From KQED, "As COVID-19 Surges Through Prisons, Guards and Inmates Sue"

From the Los Angeles Times, "Nearly 1,000 infected at Chuckawalla Valley State Prison in worst coronavirus outbreak to hit prison system"

From the Marion Star, "North Central officer: Private Ohio prison is a 'powder keg' amid coronavirus pandemic"

From The Marshall Project, "Jails Are Coronavirus Hotbeds. How Many People Should Be Released To Slow The Spread?: As officials cut jail populations, researchers and advocates explore what more can be done."

From McClatchy DC, "‘Mommy, I’m in so much pain:’ Florida prisoners write home about COVID-19 ordeals"

From Newsweek, "'Tiger King' Star Says Medical Mistreatment in Prison Will Kill Him in 2-3 Months"

From NPR, "COVID-19 Inside Arkansas Prisons: Virus Spreads Through Inmate Populations and Staff"

From the Texas Tribune, "Inmates report dangerous practices inside the Texas prison with the most coronavirus deaths"

From U Chicago News, "Study: Nearly 16% of Illinois COVID-19 cases linked to spread from Chicago jail"

From USA Today, "Coronavirus was Paul Manafort's ticket home. Many other old, ill, nonviolent inmates are still in prison"

 

While the 11 pieces above report mostly disconcerting news, I will finish here with two pieces reporting more hopeful news from two states:

From the Detroit Free-Press, "Michigan prison population sees record drop during coronavirus pandemic"

From the Lexington Herald-Leader, "Thousands were freed from Kentucky jails to avoid COVID-19. Few have re-offended."

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

Sunday, June 07, 2020

Another week with lots of federal sentence reductions from judges using § 3582(c)(1)(A) ... dare I wonder about the racial breakdown?

I flagged in this Friday post five grants of sentence reductions under § 3582(c)(1)(A) on same day Bernie Madoff was denied a reduction, and this past week was filled with many, many more judicial grants of sentence reductions using § 3582(c)(1)(A).  Readers may recall, this post from mid May with more than two dozen grants in one week showing up on Westalw, and the first week on June shows comparable activity (though I have included below a few from late May that have only recently appeared on Westlaw):

United States v. Regas, No. 3:91-cr-00057-MMD-NA-1, 2020 WL 2926457 (D Nev. June 3, 2020)

United States v. Gray, No. RDB-16-0364, 2020 WL 2932838 (D Md. June 3, 2020)

United States v. Rich, No. 17-cr-094-LM, 2020 WL 2949365 (D N.H. June 3, 2020)

United States v. McClellan, No. 1:92 CR 268, 2020 WL 2933588 (ND Oh. June 3, 2020)

United States v. Hodges, No. 04 CR 993-3, 2020 WL 2935101 (ND Ill. June 3, 2020)

 

United States v. Millage, No. 3:13-cr-234-SI, 2020 WL 2857165 (D Ore. June 2, 2020)

United States v. Hilow, No. 15-cr-170-JD, 2020 WL 2851086 (D N.H. June 2, 2020)

United States v. O'Neil, No. 3:11-CR-00017, 2020 WL 2892236 (SD Iowa June 2, 2020)

United States v. Williams-Bethea, No. 18-cr-78 (AJN), 2020 WL 2848098 (SDNY June 2, 2020)

United States v. Chapman, No. 09-CR-0741, 2020 WL 2850984 (ND Ill. June 2, 2020)

 

United States v. Prasad, No. 19-71, 2020 WL 2850147 (ED La. June 2, 2020)

Snell v. United States, No. 16-20222-6, 2020 WL 2850038 (ED Mich. June 2, 2020)

United States v. Kelley, No. 16-cr-00038-SI-1, 2020 WL 2850280 (ND Cal. June 2, 2020)

United States v. Anderson, No. 16-CR-824-1 (JMF), 2020 WL 2849483 (SDNY June 2, 2020)

United States v. Ozols, No. 16-CR-692-7 (JMF), 2020 WL 2849893 (SDNY June 2, 2020)

 

United States v. Torres, No. 87-Cr-593 (SHS), 2020 WL 2815003 (SDNY June 2, 2020) (two defendants both with LWOP sentences reduced)

United States v. Dickerson, No. 1:10CR17 HEA, 2020 WL 2841523 (ED Mo. June 1, 2020)

United States v. Smith, No. CR07-3038-LTS, 2020 WL 2844222 (SD Iowa June 1, 2020)

United States v. Kamaka, No. 18-00085 SOM, 2020 WL 2820139 (D Hawaii June 1, 2020)

 

United States v. Van Cleave, No. CR03-247-RSL, 2020 WL 2800769 (WD Wash. May 29, 2020)

United States v. Castillo, No. H-08-146-01, 2020 WL 2820401 (SD Tex. May 29, 2020)

United States v. Baclaan, No. 16-00468 HG-01, 2020 WL 2820199 (D Hawaii May 29, 2020)

United States v. Pena, No. 16-10236-MLW, 2020 WL 2798259 (D Mass. May 29, 2020)

United States v. Bass, No. 1:10-CR-166 (LEK), 2020 WL 2831851 (NDNY May 27, 2020)

As I have mentioned before, late week rulings often do not appear on Westlaw right away, so there likely are additional early June grants that will appear on Westlaw later this week.  And, of course, these Westlaw listings do not represent all sentence reductions being granted by federal courts these days; data in the Marshall Project article flagged here leads me to think Westlaw picks up at most half of all federal sentence reduction grants.

As the title of post suggests, after a week of righteous protests and discussions focused on the importance of racial equity and justice, I could not help but wonder as I assembled this list whether people of color are equally benefiting from judicial authority to reduced sentences using § 3582(c)(1)(A) after the FIRST STEP Act.  According to the most recent US Sentencing Commission data, roughly 34% of federal prisoners are Black, 34% are Latinx, 28% are White, and 4% are "other" races.  For various reasons, I suspect that the population of older federal prisoners, who seem to be those most likely to benefit from COVID-influenced reduction grants, is more Whte than the general population.  Still, because it seems likely that a sizable number of non-White federal prisoners are making viable motions for sentence reductions, I cannot help but wonder if a sizable number of non-White federal prisoners are being granted  reduced sentences using § 3582(c)(1)(A).   

Prior recent related posts since lockdowns:

June 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (0)

Friday, June 05, 2020

Encouraging decarceration news from New England has me thinking about tipping points

I was quite pleased and intrigued to see this morning two notable lengthy recent stories about reduced prison populations in two northeastern states. Both pieces merit reading in full, and here are headlines, links and excerpts, with some broader comments to follow:

"Justice Served?  Vermont Considers Corrections Reform to Shrink Its Prison Population

When lawmakers returned to Montpelier in January, one of their top priorities was to reduce the number of people imprisoned by the State of Vermont. They succeeded — but not the way they expected.

The coronavirus pandemic has prompted prosecutors to avoid locking up all but the most serious suspected offenders, and it's led the Department of Corrections to release some inmates who have served their minimum sentences and been deemed low-risk to the community.  As a result, Vermont's prison population has dropped nearly 17 percent since January, from 1,678 to 1,401.

Now, lawmakers are hoping to lock in that progress by returning to the criminal justice reforms they began contemplating in January. "Our numbers are down, so let's really put in the effort to keep those numbers down," said Rep. Alice Emmons (D-Springfield), who chairs the House Corrections and Institutions Committee.

"As CT prison population nears 30-year low, fewer intakes drive declines"

The state’s incarcerated population is on track to drop below 10,000 this month for the first time in nearly 30 years, a milestone accelerated by the global coronavirus pandemic.  Still, the drop in overall prison population — more than 2,000 people, or 16 percent since March 1 — is overwhelmingly the result of fewer prisoners entering the system rather than a sharp rise in releases, a Hearst Connecticut Media analysis shows.

The population of white prisoners declined by 19 percent, while the population of black and Hispanic incarcerated people has fallen by 14 percent, the analysis shows. It’s not clear why that discrepancy happened. Racial and ethnic minorities make up a majority of the overall prison population.

The state Department of Correction has come under pressure to release more inmates nearing the end of their sentences, especially those who are older or medically vulnerable to coronavirus.  And the department has called attention to the declining prison population.

A press release Tuesday claimed significant increases in discretionary releases, and devoted six paragraphs to the release program, including comments from Commissioner Rollin Cook, who said, “The impressive and substantial decrease in our population speaks volumes about the caliber and hard work of our staff, as well as that of our partners in the criminal justice community.”  The department cited a national report showing Connecticut ranked No. 6 among states reducing their prison populations between the end of December, 2019, and early May of this year.

There are remarkable stories and sub-stories in both of these lengthy articles, but the parts I have quoted might provide a sense of why I am thinking about tipping points. I find it remarkable and heartening that a lawmaker in Vermont is quoted as urging the state to keep its (already relatively low) prison population down after the COVID decline.  And it is even more remarkable and heartening that a press release from the Connecticut Department of Correction is bragging about reducing its population more than most other states in the COIVD era.  I sense we have really gotten to the point, at least in some significant quarters, that a rising prison population is viewed as a failure and a reduced population is deemed a success.

A sea-change in attitudes toward imprisonment and prison populations is one part of achieving a tipping point, but so too will be more fundamental structural change.  Part of that structural change may now be happening economically as states are sure to be eager in these new lean budget times to limit expenditures on corrections.  And if serious reforms in policing and punitiveness follows from all the latest calls for racial justice, I really might be ready to start to envision a true new dawn of smarter justice.

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

Bernie Madoff denied federal sentence reduction, but many others receive relief under § 3582(c)(1)(A) on same day

As reported in this Courthouse News Service report, a high-profile federal white-collar prisoners was denied compassionate release yesterday afternoon.  Here are the basics (and a link to the opinion):

Bernie Madoff’s terminal illness will not alter a federal judge’s ruling from just more than a decade ago: The man behind an “extraordinarily evil” Ponzi scheme will die in prison.

“When I sentenced Mr. Madoff in 2009, it was fully my intent that he live out the rest of his life in prison,” Judge Denny Chin, who dealt Madoff’s 150-year sentence before being appointed to the Second Circuit, wrote on Thursday. “His lawyers asked then for a sentence of 12 to 15 to 20 years, specifically with the hope that Mr. Madoff would live to see ‘the light of day.’ I was not persuaded; I did not believe that Mr. Madoff was deserving of that hope. Nothing has happened in the 11 years since to change my thinking."... 

Madoff’s attorney Brandon Sample said his client suffers from end-stage renal disease and other conditions that give him less than 18 months to live.  “Judge Chin recognized today that Madoff’s health is in serious decline and that he is, in fact, terminally ill,” Sample wrote. “Nonetheless, Judge Chin essentially found that because of the nature of Madoff’s crimes — Madoff is beyond redemption. We are disappointed with Judge Chin’s refusal to grant Madoff any compassion.”

The financial criminal will seek clemency from President Donald Trump. “We implore the president to personally consider Madoff’s rapidly declining health,” Sample added....

Letters opposing Madoff’s release showed that [negative victim] sentiment has not ebbed. Prosecutors said that more than 500 victims opposed his release, and only 20 wrote in support.  “I also agree that at age 81, with his declining physical condition, Mr. Madoff probably does not pose a danger to any person or the community,” Chin wrote. “But as the recent victim letters show, many people are still suffering from Mr. Madoff’s actions. I also believe that Mr. Madoff was never truly remorseful, and that he was only sorry that his life as he knew it was collapsing around him. Even at the end, he was trying to send more millions of his ill-gotten gains to family members, friends, and certain employees.”

Madoff is confined to the Federal Medical Center in Butner, North Carolina, which — like many prisons throughout the country — is grappling with the coronavirus.  Neither Madoff’s request nor the ruling mentions the pandemic.

While this 16-page opinion from Judge Chin does not mention COVID, a whole lot of other compassionate release rulings handed down yesterday did.  I figured here it might be useful to highlight a number of the positive rulings from just the same day as this Madoff denial that already appear on Westlaw (and this weekend I will try to compile the more extended list of  positive § 3582(c)(1)(A) rulings from other days):

United States v. McKinney, No. 18-CR-6035L, 2020 WL 2958228 (WDNY June 4, 2020)

United States v. McCall, No. 2:18cr95-MHT, 2020 WL 2992197 (MD Ala. June 4, 2020)

United States v. Burke, No. 4:17-CR-3089, 2020 WL 3000330 (D Neb. June 4, 2020)

United States v. Green, No. TDC-10-0761, 2020 WL 2992855 (D Md. June 4, 2020)

United States v. Rivera-Amaro, No. 1:18-CR-00183 EAW, 2020 WL 3000392 (WDNY June 4, 2020)

I am pretty confident that this list of grants are not all of those that will show up on Westlaw eventually, and I am even more certain that there were a number of federal sentence reductions granted under § 3582(c)(1)(A) yesterday that will not ever show up on Westlaw.  In other words, while high-profile cases like Bernie Madoff will garner headlines, an ever-growing number of federal defendants are garnering sentence reductions thanks to the FIRST STEP Act.

June 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Thursday, June 04, 2020

Justice Sotomayor stays federal judicial orders to transfer vulnerable Elkton prisoners pending Sixth Circuit appeal

As noted in this post, last week the full Supreme Court denied, by a 6-3 vote, a request by the federal government to stay a federal district court order to release or transfer vulnerable inmates from the Elkton federal prison.  But this ruling was, in essence, based on a technicality, and today Justice Sotomayor via this order granted the stay the feds were seeking:

IT IS ORDERED that the District Court’s April 22 and May 19 orders are hereby stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Sixth Circuit and further order of the undersigned or of the Court.

I believe the Sixth Circuit panel is due to hear argument tomorrow on this matter, but this stay enables federal officials to keep moving slowly on moving vulnerable prisoners out of a prison that has had hundreds of COVID cases and a handful of deaths.

Prior related posts:

UPDATE: Amy Howe has this lengthy and effective posting at SCOTUSblog about the Elkton litigation and the stay granted by Justice Sotomayor.

June 4, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Criminal Court Reopening and Public Health in the COVID-19 Era: NACDL Statement of Principles and Report"

The title of this post is the title of this notable new report coming from the National Association of Criminal Defense Lawyers.  This press release summarizes some highlights: 

The National Association of Criminal Defense Lawyers (NACDL), with support from the NACDL Foundation for Criminal Justice (NFCJ), today released a comprehensive set of principles and report — Criminal Court Reopening and Public Health in the COVID-19 Era. As explained in detail in the report, “[g]iven the nature of the disease and the manner of transmission, court proceedings, especially jury trials, present a grave risk to all participants, including the public which has a fundamental right to attend.”

“We know from the science that across the nation the characteristics of courtrooms, courthouses, and the proceedings that occur inside them, present precisely the type of settings in which the virus spreads most efficiently — enclosed spaces requiring close proximity for an extended period of time,” said NACDL President and Task Force on Criminal Court Reopening Member Nina J. Ginsberg.  “While NACDL recognizes the inherent tension between the protection of an accused person’s fundamental right to a speedy trial, for example, and the delay necessary to protect the health and safety of everyone involved in jury trials, this statement of principles and report provide a roadmap to minimizing that constitutional burden while protecting the health and safety of all individuals involved in the conduct of a constitutional criminal proceedings in the United States.”

Virtual or remote proceedings are inherently inconsistent with fundamental constitutional rights.  Accordingly, among the recommendations included in the report are that the use of virtual proceedings be limited to the maximum extent possible, both in scope and duration, and only used with the knowing and informed consent of the accused. The report calls for far greater use of pre-trial release and other mechanisms, such as providing the accused with the unilateral right to elect a bench trial where that right does not already exist.

“There are also significant and unacceptable constitutional burdens on the accused that accompany criminal proceedings, live or virtual, in the midst of this uncontrolled pandemic, including on the right to counsel, the right to confront witnesses, the right to due process, and the right to a public trial by a jury representing a fair cross section of the community,” Ginsberg added.

As provided in the report, because of numerous constitutional concerns, the absence of a vaccine or rapid testing, and highly-infectious asymptomatic transmission, the fact is “that resuming criminal jury trials — particularly in areas of significant community-based transmission — would not only be reckless and irresponsible, but would also undermine the truth-seeking purpose of trials given the well-documented and understandable fear, panic, and uncertainty on the part of jurors, witnesses, court staff, deputies, judges, prosecutors, and defense counsel.”

UPDATE: Here are just a few recent press pieces providing some additional perspectives on this topic:

"Judges Worried About Virus' Impact On Upcoming Trials"

"Your right to a jury trial is on hold. Here’s how coronavirus is changing the justice system"

"Judges try to balance legal rights and courtroom health"

June 4, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

"Total Federal Inmates," as reported by BOP, drops below 165,000

Another Thursday brings another new check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers.  In prior posts here and here, I highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  As we now move from May into June, the new numbers at this webpage are continuing to show weekly declines checking in around 1,100 on average: the BOP reported population dropped from 167,803 (as of May 14, 2020) to 166,647 (as of May 21, 2020) to 165,575 (as of May 28, 2020) to now a BOP reported total of 164,438.

I have repeatedly suggested that a reduced inflow of federal inmates — due to many sentencings and reportings to prisons being delayed — has likely been playing a big role in the significant reported population declines in recent months.  But, in this post noting a BOP press release about coming inmate transfers, I wondered if the historic COVID-era decline in the BOP numbers might be mostly an artifice of 6,800 federal prisoners not being officially "counted" while being held in local detention facilities during the COVID shutdown.  But this week shows reported  declines continuing at a steady pace, and so I am left to continue muttering about not "really" knowing just what is represented by the reported federal prison population or about how best to accurately gauge COVID's impact. 

A few of many prior related posts:

June 4, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)