Wednesday, May 06, 2020

Discouraging confirmation of my concern that federal judges are not yet really re-thinking their sentences amidst a COVID pandemic

In this post on Monday, I highlighted Walter Pavlo's interesting Forbes piece, headlined "After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future."  In the piece, Pavlo strikes an optimistic tone about how COVID might be altering federal judicial sentencing attitudes:

Judges are going to re-think their sentences.  Their courtrooms are currently jammed with motions for compassionate release, civil rights violations by BOP, and pre-trial pre-sentencing release motions.  Center stage at these hearings are BOP conditions, its policies, its care of inmates and how it treats those employed at these institutions.  In short, federal judges are seeing firsthand how the BOP executes the sentences they impose ... and it is ugly. 

Federal judges may hold the key to real criminal justice reform because COVID-19 will make them think about the consequences that their sentences have on the lives of defendants and their families.  They will not be able to un-remember these tragic stories ... and that might be a good thing."

In response, I expressed some worry that Pavlo's perspective might be wishful thinking and I detailed a few reasons for my persistent pessimism even in pandemic times.  I also noted I was "eager to hear from persons actively involved in federal sentencing work in this COVID era about whether they think judges are already starting to 're-think their sentences'."  I was grateful to receive a lengthy email from thoughtful reader, who gave me permission to reprint part of this email:  

Thank you for all of you Covid-19 related sentencing coverage.  I was prompted to write by the post referenced above and your expression of interest in hearing from practitioners about sentencing right now and whether judges' sentencing practices are changing.  The answer is no.

You are not too pessimistic.  You are exactly right.  I've been a federal defender for about ten years.  I should be inured by now to the treatment of my clients, but seeing what is happening to them in federal prison right now -- and the utter apathy of most judges towards the situation -- is really heartbreaking.  Several pieces you have referenced capture it: our DOJ and judges have a mindless addiction to punishment.  Part of the problem is that so many of our judges are former prosecutors (and, by now, former prosecutors who grew up with the Sentencing Guidelines, so are completely invested in those Guidelines and do not even remember a time when sentences were shorter or judges made decisions without them).  Judges are very wedded to the punitive, incarceratory sentences that they impose.

[A recent] series of orders from my district really captures that (judge rejecting compassionate release and then another release request).  The judge recognizes that Covid-19 creates a dangerous situation for the defendant in prison.  But the judge just really wanted this nonviolent, fraud defendant to spend some years in a cage and he cannot let go of that desire, even if it means risking that person's life.

This relates to the point from the Cato piece you linked to earlier this week [available here]: We have known for a long time that prison conditions are bad.  Judges just accept it. And once they have come to accept it, the marginal increase in badness caused by Covid-19 is not going to be enough to move most of them.

More broadly, the reality is that if you imprison people on a regular basis, you need to construct a belief system that allows you to keep doing that.  Often, you first build it as a prosecutor and then you sustain it as a judge.  One component of that belief system tells you that whatever hardship a defendant suffers in prison is something that he caused by his own actions or something that he deserves for what he has done.  Another component tells you that in advocating/imposing harsh sentences, you are simply following "the law" (the Guidelines, the will of Congress, whatever) and you have no ultimate power over this "law," which is somehow controlled by someone else.  Those belief systems are not getting changed by one pandemic.

So what is with all the compassionate release grants? ... A few judges have been moved by the insanity of Covid-19 in prison, but I think it's a minority.  Many of these grants are on consent and are for defendants who had very little time remaining on their sentences.  In other words, judges will go along with letting you out if the prosecutor agrees you have been sufficiently punished.  And even in some of the better decisions, judges express regret that the defendants cannot be made to serve the full sentences they originally imposed.  That does not sound like long-lasting change in sentencing practices.


Prior recent related posts:

May 6, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (2)

ABC News reporting "Over 5,000 corrections officers have contracted COVID-19" ... which is surely an undercount

The quoted portion of the title of this post is the headline of this new ABC News piece marking a notable grim milestone that highlights yet another consequence from a global pandemic coming to incarceration nation.  Here are excerpts:

As the novel coronavirus ravages prisons around the country, over 5,000 state and federal correctional officers have tested positive for the virus, data compiled by ABC News shows.  There have been 5,002 cases, including over 4,600 state correctional officers that have contracted the virus, with New York being the state with the most correctional officer cases.

"If you look at how it's tracked across the globe, you'll see that this thing runs through a correctional facility like a brushfire, and it doesn't stop until it runs out of people, basically," Andy Potter, the executive director of the Michigan Corrections Organization and the founder of the One Voice Initiative, told ABC News.  "We've always said we believe that we were behind the eight ball to begin with."  Potter, whose union represents over 6,000 officers in Michigan, stressed that governors weren't doing a bad job, but they could "lead a better plan of conversation and communication with those corrections front-line staff."...

Federally, over 350 officers have tested positive for the virus. Shane Fausey, the national president of the Council of Prison Locals, told ABC News that there are likely more federal cases of officers, but they aren't reported because of the lack of testing. "They're not testing everybody," Fausey said.  "As a matter of fact testing is extremely limited."

The Bureau of Prisons told ABC News that they "have developed a letter for staff who are in close contact of a COVID-19 positive individual to provide to the local health department to ensure such persons receive priority COVID-19 testing.  Because staff are typically tested in the community, we are unable to provide the total number of correctional officers that have been tested."

On the state level, testing in Michigan is also a problem, officials say. "We're struggling with getting officers tested," said Byron Osborn, president of the Michigan Corrections Organization. "We believe that the state ... [should] be proactive and kind of try to get in front of this too, so the rest of our facilities aren't impacted. We're advocating for staff to be tested."...

Another problem that has been plaguing both federal and state institutions is severe understaffing, a problem that is only amplified by the pandemic.  "The pandemic has completely overrun the system; the system wasn't operating normally," said Fausey, who represents over 30,000 officers at prisons around the country.  "Now you've completely overrun its limited staffing resources.  And that's not even including the staffing shortage we had in medical positions. We've had that for quite a few years."...

Across the country, 38 corrections officers have died due to COVID-19, according to the One Voice Initiative. In one instance of a possibly missed case, Fausey said there should be no debate as to whether or not a 39-year-old case manager at United States Penitentiary, Atlanta died due to COVID-19.  Robin Grubbs died late last month after being promoted at the facility.  The bureau stopped short of calling her death related to COVID-19, because the virus was found during the autopsy but the autopsy was incomplete, BOP said.

The union, however, said that this was a definite case of COVID-19 and it should be recognized. "Instead of saying we've lost somebody -- it's terrible, it's heartbreaking -- the bureau puts out this press release, 'Well the autopsy was inconclusive and we're not really sure how she died,'" Fausey explained.  "Why would you put out a defensive statement to all the employees that are grieving the loss of a young lady that they love dearly?  Ms. Grubbs' friends and family deserved compassion and understanding.  Robin deserved better."...

The front-line workers are the backbone of these institutions, Potter said, and they are the people who are holding facilities together and stressed that the only way that it can be solved is for corrections staff across the country to come together. "I'm telling you, if you're tracking what's going on around the United States, it's just going to get worse before it gets better," Potter said. "Just because it clears up in one facility doesn't mean it's not going to spread. We know we know how aggressive it is."

I am pleased to see this article highlight the limits of testing and the fact that stated numbers of officers infected with, and numbers dying from, COVID-19 are surely undercounts. I fear that widespread testing of prison guard would often produce a depressingly large percentage of infections as we have often seen when inmates are widely tested.

Meanwhile, I am disappointed that this article does not discuss more how modern mass incarceration, persistently overcrowded prisons, and the failure of authorities to thin prison populations have all contributed to this ever-growing public health disaster.  With far too many prisoners to manage, far too little space for social distancing, and far too little help coming from Governors and other executive officials, correctional officers and their families are yet again victimized by our country's persistent carceral cancer.

The Washington Post is also covering this beat via this recent article headlined "As virus spreads in jails and prisons, correctional officers fear for themselves and their loved ones."

May 6, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, May 05, 2020

Sixth Circuit panel refuses to stay district judge order to transfer vulnerable prisoners out of Elkton federal prison "through any means"

As heralded in this ACLU press release, yesterday "a three-judge panel on the Sixth Circuit Court of Appeals ruled unanimously denying the Bureau of Prisons request to stay enforcement of the district court order to begin transfer and release of 837 medically-vulnerable prisoners from Elkton FCI."  Here is more from the press release:

The ACLU of Ohio and the Ohio Justice and Policy Center brought this class action on April 13, and as of last week, seven prisoners died from COVID-19.

“Today’s decision again confirms the urgent need to respond to the crisis unfolding at Elkton. Lives of prisoners, prison staff, and the community depend on swift action to move the most vulnerable people away from the COVID-19 outbreak before it is too late,” added David Carey, Senior Staff Attorney for the ACLU of Ohio.  “We applaud the Sixth Circuit’s order,” added David Singleton, Executive Director of the Ohio Justice & Policy Center. “The court’s ruling is grounded in precedent and allows this litigation to proceed with the urgency that this life-and-death situation demands.”

Per the court’s order, “The district court found that Elkton’s dorm-style structure rendered it unable to implement or enforce social distancing. The COVID-19 virus, now a pandemic, is highly contagious…Older individuals or those who have certain underlying medical conditions are more likely to experience complications requiring significant medical intervention, and are more likely to die.”

The panel's five-page ruling in this matter is available at this link, and here is a key paragraph:

Given the procedural posture of the case, we review not the merits of Petitioners’ Eighth Amendment claim, but whether the district court abused its discretion in entering the preliminary injunction.  We accept the district court’s factual findings unless we find them clearly erroneous.  Fed. R. Civ. P. 52(a)(6).  The district court found that Elkton’s dorm-style structure rendered it unable to implement or enforce social distancing.  The COVID-19 virus, now a pandemic, is highly contagious, and can be transmitted by asymptomatic but infected individuals.  Older individuals or those who have certain underlying medical conditions are more likely to experience complications requiring significant medical intervention, and are more likely to die.  At Elkton, COVID-19 infections are rampant among inmates and staff, and numerous inmates have passed away from complications from the virus.  Elkton has higher occurrences of infection than most other federal prisons.  Respondents lack adequate tests to determine if inmates have COVID-19.  While the district court’s findings are based on a limited evidentiary record, its “account of the evidence is plausible in light of the record viewed in its entirety.” United States v. Ables, 167 F.3d 1021, 1035 (6th Cir. 1999).  Thus, at this juncture and given our deferential standard of review on motions to stay, “[t]he district court’s choice between two permissible views of the evidence cannot . . . be clearly erroneous.” Id.

Prior related posts:

May 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, May 04, 2020

Rounding up some recent commentary on the current COVID prison state

I continue to see more COVID commentary than I have time to read closely, let alone blog about effectively.  But, trying to cover lots of ground, here is a round up of some pieces that caught my eye in recent days:

By Mia Armstrong, "Life Has Moved to Zoom. Can Prison Visitation Do the Same?"

By Sessi Kuwabara Blanchard, "Two Prominent COVID-19 Federal Prison Deaths’ Common Denominator? Joe Biden"

By Rory Fleming, "In a Prison Where Coronavirus Is Rife, Waiting on a Judge’s Call to Be Freed"

By Oren Gur, Jacob Kaplan and Aaron Littman, "Data Is Key To Stopping COVID-19 Spread In Prisons"

By Holly Harris, "Blame the Justice Department for Andrea Circle Bear’s Death"

By Nicole Lewis, "Can College Programs in Prison Survive COVID-19?"

By Brent Orrell and Grant Duwe, "COVID-19 has exposed the interlocking risks of mass incarceration"

By John Wetzel, "What We've Learned About COVID-19 in Prisons"


UPDATE:  I forgot to include a great piece by the always great Radley Balko, and then I saw a number of others that seemed worth adding (though this list is still far short of comprehensive):

By Radley Balko, "Stopping covid-19 behind bars was an achievable moral imperative. We failed."

By Talha Burki, "Prisons are 'in no way equipped' to deal with COVID-19"

By Alex Busansky, "What a Pandemic Can Teach Us About the Future of Criminal Justice"

By Lauren-Brooke Eisen, "Covid-19 Continues Its Toll on Jails and Prisons"

By Nancy Gertner, "Coronavirus can mean a death sentence to prisoners: We got used to treating people as categories, not human beings."

By Lovisa Stannow, "What about the prisoners who won’t get out?"

May 4, 2020 in Impact of the coronavirus on criminal justice, Recommended reading | Permalink | Comments (0)

Sunday, May 03, 2020

Still more of the ever-growing number of COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

In recent posts (examples here and here and here and here and here and more linked below), I have highlighted more than four dozen rulings involving COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) that I have found via Westlaw.  (And, as I keep mentioning, these Westlaw listings likely do not represent all sentence reductions being granted these days).  before the start of a new work week, I figured I would do yet another round-up of new grants of sentence reductions that emerged on Westlaw from the end of last week.  It is heartening to again see these types of rulings from coast-to-coast and lots of places in-between:

United States v. Etzel, No. 6:17-cr-00001-AA, 2020 WL 2096423 (D Ore. May 1, 2020)

United States v. Lacy, No. 15-cr-30038, 2020 WL 2093363 (CD Ill. May 1, 2020)

United States v. Rivera, No. 86 Cr. 1124 (JFK), 2020 WL 2094094 (SDNY May 1, 2020)

United States v. Peters, No.3:18-cr-188 (VAB), 2020 WL 2092617 (D Conn. May 1, 2020)

United States v. Pinkerton, No. 15-cr-30045-3, 2020 WL 2083968 (CD Ill. Apr. 30, 2020)

United States v. Lucas, No. 15-CR-143, 2020 WL 2059735 (WDNY Apr. 29, 2020)

United States v. Dunlap, No. 1:02cr165-1, 2020 WL 2062311 (MD NC Apr. 29, 2020)

United States v. Saad, No. No. 16-20197, 2020 WL 2065476 (ED Mich. Apr. 29, 2020)

United States v. Harper, No. 7:18-cr-00025, 2020 WL 2046381 (D Conn. Apr. 28, 2020)

United States v. Mel, No. TDC-18-0571, 2020 WL 2041674 (D Md. Apr. 28, 2020)

In addition to this encouraging additional set of sentence-reductions grants using § 3582(c)(1)(A) accelerated by COVID concerns, there have also been a few grants based primarily on other factors that I hope to find time to cover in future posts.  In the meantime, I continue to be pleased to see (some) judges recognizing that 3582(c)(1)(A) motions can and should provide a means to correct (some) past unjust federal sentences.  The COVID crisis and the threat it poses to vulnerable prisoners is surely increasing the willingness of judges to review swiftly those past sentences that may no longer serve any sentencing purpose.  

Prior recent related posts since lockdowns:

May 3, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

"Decarceration in the Face of a Pandemic"

There is a whole lot of terrific commentary these days about the intersection of criminal justice, incarceration and the COVID crisis. If you only have time to read one piece, I could recommend this terrific Cato piece by Clark Neily which has the title that I used for this post. Read the whole thing, and here is how it gets started:

America's jails and prisons are now among the deadliest environments on the planet.  Most of them are desperately overcrowded, understaffed, unhygienic, and utterly unable to provide even minimally adequate medical care to those who contract COVID-19, which is now spreading like wildfire through those facilities, endangering not only the lives of prisoners, but also of guards, staff, and the communities to which they all return at the end of their shifts.

Thus, one of the most urgent — and contentious — debates in criminal justice today is over which prisoners to release in the face of a pandemic that is literally unprecedented during America's era of mass incarceration, which dates back to the early 1990s.  Defense attorneys across the nation have filed a blizzard of early-release motions on behalf of their incarcerated clients, and the ACLU and other civil rights groups have sued a number of prisons and jails seeking the immediate release of particularly vulnerable inmates. Tragically, all of this is unfolding against the backdrop of a system that falls disgracefully short of meeting prisoners' medical needs during the best of times.  In the midst of a genuine emergency, it is no secret what will happen to most people who contract COVID-19 behind bars: They will be left to live or die with only token medical attention.

As a result, all but the most obtuse proponents of mass incarceration now recognize that it has become morally indefensible to continue holding at least some fraction of the roughy 2.3 million people currently behind bars in an environment where we can neither adequately protect them from nor treat them for COVID-19.

But the system is having an extraordinarily difficult time deciding whom to release, and I think there are three key reasons for that: (1) we have become so cavalier in our use of the criminal sanction that the mere fact of a person's incarceration tells us nothing about his moral culpability or what risk his immediate release might pose to society; (2) we've become so inured to how horrible the conditions in jails and prisons are that exposing inmates to a new and exceedingly virulent pathogen may strike some as simply a marginal change in the already dismal circumstances of their confinement; and (3) thinking seriously about whom to set free and whom to keep behind bars in the midst of a pandemic raises questions that the carceral-industrial complex can scarcely afford to have people asking after the crisis subsides.  I will address those points in turn.

May 3, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Saturday, May 02, 2020

Another day, another set of ugly COVID stories and data emerging from federal prisons

I surmise that federal lawyers are making claims in federal courts around the nation that the Bureau of Prisons are doing a great "expert" job dealing with the COVID pandemic in federal facilities around the nation.  But a quick scan of recent media stories and even BOP's own data suggests a very different story.  First, some headlines:

From CBS News, "No phone or email for nearly 4,000 inmates at three federal prisons in effort to fight virus":

As coronavirus cases surge inside three federal prisons in California, the Bureau of Prisons has instituted stringent measures in an attempt to slow the spread of the virus.  The three institutions — in Lompoc and Terminal Island — have cut off inmates' access to email and phone lines, drawing outrage from families who have not heard from loved ones in nearly two weeks.  CBS News spoke to the friends and families of five inmates who have been impacted by what one person characterized as a "gag order."

From Forbes, "Bureau Of Prisons Locking Up Minimum Security Campers In Higher Security Prisons"

If a person is confused over how the BOP released him, those left behind are certainly confused as to when the BOP will act on their promises to let them go home. The BOP has come under fire for expanding the number of inmates at its minimum and low facilities eligible for home confinement, only to tell a number of them that they were now not under consideration ... then they were told again they might be. Now many inmates, whose fate related to home confinement is unknown, have been housed in a type of quarantine, some locked down in cells in higher security facilities, for weeks now. It is cruel to the inmates and even more cruel for the families whose contact with them has been limited. Some have only been able to communicate via regular mail.

From the Intercept, "Medical Expert: Federal Jail Intentionally Destroying Medical Records And Hiding Extent Of Coronavirus Behind Bars"

A federal jail in Brooklyn, New York, that houses roughly 1,700 people is destroying medical records as part of a deliberate effort to obscure the number of incarcerated people infected with the coronavirus and to avoid providing them adequate care, alleges the report of a medical expert who toured the facility April 23 as part of a court-ordered inspection.  The report, filed Thursday as part of a putative class-action lawsuit by people held in custody at the Metropolitan Detention Center in Brooklyn, casts doubt on assertions by the Bureau of Prisons, which runs the jail, and the U.S. Attorney’s Office for the Eastern District, which serves as counsel for the bureau. The Bureau of Prisons and federal prosecutors have insisted in court that the situation at the jail is under control.

And BOP's own official data, which many suggest should not be trusted, itself does not provide any basis for hopefulness. BOP's COVID-19 Update page, reporting now data through May 1, states "there are 1842 federal inmates and 343 BOP staff who have confirmed positive test results for COVID-19 nationwide ... [and] there have been 36 federal inmate deaths."

UPDATE: BOP updated its number this afternoon: "As of 05/02/2020, there are 1919 federal inmates and 349 BOP staff who have confirmed positive test results for COVID-19 nationwide..... There have been 37 federal inmate deaths and 0 BOP staff member deaths attributed to COVID-19 disease."

May 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Friday, May 01, 2020

"While jails drastically cut populations, state prisons have released almost no one"

The title of this post is the title of this timely and important new analysis by Emily Widra and Peter Wagner at the Prison Policy Initiative.  I recommend the whole piece (especially to see all the charts and tables), and here are excerpts:

In recent weeks, local governments across the U.S. have drastically reduced their jail populations to slow the spread of the coronavirus.  Many have reduced the number of people in jail by 25% or more, recognizing that the constant churn of people and the impossibility of social distancing in jails make them inevitable hotbeds of viral transmission. But state prisons — where social distancing is just as impossible, and correctional staff still move in and out every day — have been much slower to release incarcerated people....

The strategies jails are using to reduce their populations vary by location, but they add up to big changes.  In some counties, police are issuing citations in lieu of arrests, prosecutors are declining to charge people for “low-level offenses,” courts are reducing the amounts of cash bail, and jail administrators are releasing people detained pretrial or those serving short sentences for “nonviolent offenses.”

Meanwhile, state Departments of Correction have been announcing plans to reduce their prison populations — by halting new admissions from county jails, increasing commutations, and releasing people who are medically fragile, elderly, or nearing the end of their sentences — but our analysis finds that the resulting population changes have been small....

Of the states we analyzed, those with smaller pre-pandemic prison populations appeared to have reduced their populations the most drastically.  The prison population has dropped by 16% in Vermont and almost 8% in Maine and Utah. But the median percentage of people released from jails hovers around 20%, still surpassing Vermont’s state prison reduction of 16%.

States clearly need to do more to reduce the density of state prisons.  For the most part, states are not even taking the simplest and least controversial steps, like refusing admissions for technical violations of probation and parole rules, and to release those that are already in confinement for those same technical violations.  (In 2016, 60,000 people were returned to state prison for behaviors that, for someone not on probation or parole, would not be a crime.)  Similarly, other obvious places to start are releasing people nearing the end of their sentence, those who are in minimum security facilities and on work-release, and those who are medically fragile or older.

May 1, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

AG Barr deceptively suggests 5000 inmates have been moved from federal prison to home confinement, while BOP now reports moving "1,959 inmates"

Attorney General William Barr participated today in a nationwide #AskTheAG Q&A session via Twitter.  I was glad to see him participating in this forum and also glad to see he answered this question posed by Representative Bobby RushL

Q: Why does DOJ/BOP refuse to release prisoners who pose ZERO threat to society despite the increasing number of deaths happening in federal prisons due to COVID-19? 

AG Barr's answer to this question (second in thread), which runs about about 90 seconds, includes an interesting (and problematic) statement about what has been done to date by DOJ and BOP.  AG Barr explains that, in the CARES Act, Congress broadened DOJ discretion to move more inmates out of prison and into home confinement, and then he says: "We have been using that discretion aggressively, right now we have just short of 5000 in home confinement and we have another 1000 in the pipeline."

In the context of both the question and the rest of AG Barr's answer, this statement seems like a straight-forward assertion that because of coronavirus concerns, DOJ/BOP has already moved nearly 5000 persons out of federal prison and into home confinement (with 1000 more on the way).  Indeed, early media reports here and here and here about this statement have understood and reported what AG Barr said as an indication that 5000 inmates have be relocated from prison to home confinement due to the coronavirus crisis. 

But I do not think that suggestion matches with BOP reality because BOP's own COVID-19 Update page, as of the afternoon of May 1, reports (emphasis added):

Since the release of the Attorney General's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 1,959 inmates on home confinement.

It is my guess that the Attorney General, when stating "right now we have just short of 5000 in home confinement," was actually referencing the total number of persons on home confinement, thousands of which were already serving their sentences at home before COVID came along.  According to the BOP, which has been reporting these data on an on-going basis for weeks, AG Barr inflated the real numbers here by 150% to suggest doing a whole lot more than BOP actually is.  (Notably, the real BOP numbers would reflect a movement of just over 1% of the federal prison population into home confinement; even AG Barr's total inflated numbers would still only get us to just over 3% of the federal prison population moved into home confinement.  And, critically, current data show there are still well over 10,000 federal prisoners over age 60 and surely many more with COVID vulnerabilities.) 

It strikes me as extremely deceptive and problematic that the AG in this context used phrasing to create the misimpression that thousands more persons were being moved to home confinement due to COVID than BOP's own website reports.  And I suspect he did this not only to create the misimpression that DOJ/BOP has been taking major steps in this arena, but also to bolster arguments being made by prosecutors in courtrooms around the country that judges ought to trust how BOP is handling the COVID crisis and not grant requests from persons in prison for relief from dangerous prison conditions.

UPDATE: I am disappointed, but not surprised, to see this New York Times piece about AG Barr's comments reiterating the inaccuracy in the AG's deceptive statement:  "Mr. Barr said that the bureau took 'the health and safety of our inmates very seriously,' and had moved to release nearly 5,000 prisoners to home confinement and had another 1,000 in the pipeline."    Similarly, Fox News repeated this misrepresentation in its story: "Barr replied to the Democratic congressman that the Department of Justice had used its authority under the First Step Act to move nearly 5,000 prisoners who were considered vulnerable to COVID-19 from incarceration to home confinement, and had another 1,000 'in the pipeline' to be moved." 

Dare I say it: FAKE NEWS, thanks to the Attorney General mostly, but also thanks to media not following up properly with a check of the official BOP data! 

In any event, I would now suggest advocates try to turn the lemon-sour deception of AG Barr into decarceration lemonade by arguing, in every venue, that the AG's comments have served to create a short-tern goal of getting a full 6000 COVID-vulnerable prisoners who were incarcerated in March into home confinement before the end of May.

May 1, 2020 in Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Though delaying a number of executions, COVID-19 takes the life of death row prisoner in Arizona

As reported in this Fox New piece, "Arizona inmate on death row for murder and kidnapping convictions died Thursday from the coronavirus, according to a report." Here is more:

Alfonso Salazar, 56, had been hospitalized since April 21. He was being housed at the Florence prison, located about 60 miles southeast of Phoenix. Dale Baich, a federal public defender whose office represented him in an appeal, called the prison's medical care "poor" and said it is the "subject of ongoing litigation."

Salazar was sentenced to death in 1988 after he, along with another man, were convicted of murdering 83-year-old Tucson resident, Sara Kaplan two years earlier. She was found beaten and strangled by a telephone cord, according to Phoenix's KJZZ radio station. They entered her home by prying open metal security bars from a window, the station added.

He's the first death row inmate in Arizona to die of coronavirus complications, and the third inmate in the state to die from the virus. At least seven other death row prisoners have tested positive for the coronavirus, Baich said.

One of the ill inmates said he and the others are being isolated in a dirty, cockroach-infested building. The Florence facility accounts for 35 of the 50 coronavirus cases in state prisons.

As detailed in this posts linked below, a few persons on death row are still alive because of the coronavirus as more than a half-dozen executions have been postponed nationwide. But this story from Arizona is the first report I have seen of a person on death row being among the prisoners to die because of COVID-19.

Some prior related capital COVID posts:

May 1, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Thursday, April 30, 2020

Noteworthy federal prison numbers, news and notes as an April like no other comes to a close

In this post last Thursday, I reviewed some past and present data on the federal prison populations.  In that post, I highlighted that, according to BOP's reporting of the numbers, it appears that through the month of April the federal prison population was shrinking about 1,000 persons per week.  Another Thursday means new numbers at this webpage, and toady's official refreshed count of the total number of federal inmates as calculated by the Federal Bureau of Prisons shows a drop of 999 with the population going down from 171,434 on April 23 to 170,435 as we close out April.

Notably, the BOP's COVID-19 Update page last week reported then that "the BOP has placed an additional 1,440 inmates on home confinement."   This week, as of mid-day April 30, BOP is reporting that it has placed "1,805 inmates on home confinement."  This reported official increase of 365 more inmates placed on home confinement would seemingly account for only a little more than a third of this week's overall population decrease.  This reinforces my sense that a reduced inflow of prisoners (due I would guess to many sentencings and reportings to prisonsbeing delayed) accounts for the lion's share of the prison population decline over the last month.

Meanwhile, as the BOP is starting to roll out more COVID testing and yet still struggling with policy and operational changes, there seems lately to be even more press covering the messiness in various ways:

From the Associated Press, "Over 70% of tested inmates in federal prisons have COVID-19"

From the Chicago Tribune, "Wild swing in coronavirus numbers reported at Chicago’s federal jail goes unexplained, leaves lawyers skeptical"

From the Santa Barbara Independent, "Lompoc Prison’s COVID-19 Crisis Threatens to Pop: Rep. Salud Carbajal Warns of Potential 'Disaster That’s Unfathomable'"

From USA Today, "More than 1,500 federal prisoners now have COVID-19 as officials expand testing"

From the Wall Street Journal, "More Than 70% of Inmates Tested in Federal Prisons Have Coronavirus: Prisons officials expect the number of positive results to climb as testing is expanded"

April 30, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, April 29, 2020

From drug sentences to death sentences: documenting arbitrary and capricious drug war casualties

Many millions, perhaps tens of millions of persons, in the United States are involved in some federally illegal drug activity.  But only select few, roughly 20,000 per year, are subject to federal prosecution and sentencing.  The tiny percentage of drug offenders subject to federal prosecution are not quite randomly selected, but exactly who and how offenders are brought into the federal system often seems to have more to do with federal prosecutorial priorities than with offending behaviors.  (This US Sentencing Commission document shows that federal cocaine and meth cases were still more commonly sentenced than opioid cases through the height of the opioid epidemic.   Notably, those selected for federal prosecution are disproportionate persons of color: in Fiscal Year 2019, as in most prior years, only about one quarter of persons prosecuted for federal drug crimes are white.)

For those sentenced to federal prison, the vicissitudes of federal drug prosecution are now combined with the coronavirus pandemic and the uncertainties of just who will get sick from the virus.  Sadly, for more than a few, the result has been an untimely death.  Of course, every unnecessary death by illness for an incarcerated person is a tragic event; but the recent death of the first female federal inmate (discussed here) struck me as an especially arbitrary and capricious drug war casualty.  And it inspired me to go though the BOP press releases about COVID inmate deaths to see how many involve drug offenders. Here is what I found (with quote about offense drawn from BOP press release):

Patrick Jones (died March 28: "49 year-old male who was sentenced in the Western District of Texas to a 324- month sentence for Possession with Intent to Distribute 425.1 grams of crack cocaine within 1000 ft. of a junior college") 

Nicholas Rodriguez (died April 1: "43 year-old male who was sentenced in the Northern District of California to a 188-month sentence for Conspiracy to Distribute a Mixture and Substance Containing a Detectable Amount of Methamphetamine and Possession with Intent to Distribute a Mixture and Substance Containing a Detectable Amount of Methamphetamine")

Woodrow Taylor (died April 2: "53 year-old male serving a 60 month sentence for Conspiracy to Possess with Intent to Distribute 500 grams or more of Cocaine")

David Townsend (died April 2: "66 year-old male who was sentenced in the Northern District of Georgia to a 240-month sentence for Possession With Intent to Distribute at least 100 kg. of Marijuana, at least 500 gm. of Methamphetamine Mixture, and at least 5 gm. of Methamphetamine Actual")

Margarito Garcia-Fragoso (died April 2: "65 year-old male serving 126 month sentence for Possession with Intent to Distribute more than 500 grams of cocaine and Possession of a Firearm in Furtherance of Drug Trafficking Crime")

Gary Edward Nixon (died April 12: "57 year-old male who was sentenced in the Eastern District of North Carolina to a 155-month Supervised Release Violation Term with new criminal conduct of Conspiracy to Distribute With Intent to Distribute More Than 5 Grams of Cocaine Base (Crack). The original offense conduct was Conspiracy to Possess With Intent to Distribute 100 Grams or More of Heroin and Possession With Intent to Distribute a Quantity of Heroin")

Alvin Turner (died April 13: "43 year-old male sentenced in the Eastern District of Michigan to a 180 month term for Conspiracy to Possess With Intent to Distribute and to Distribute Cocaine")

Michael Fleming (died April 19: "59 year-old male who was sentenced in the District of Wyoming to a 240-month sentence for Conspiracy to Possess with Intent to Distribute and to Distribute

Arnoldo Almeida (died April 22: "a 61 year-old male who was sentenced in the Western District of Texas to a 188-month sentence for Conspiracy to Possess with Intent to Distribute a Controlled Substance Containing a Detectable Amount of Cocaine")

Oscar Ortiz (died April 24: "78 year-old male who was sentenced in the District of Idaho to a 324-month sentence for Conspiracy to Distribute Methamphetamine and/or Marijuana, Drug
Possession/Distribution, and Misprison of a Felony")

Donnie Grabener (died April 25: "65 year-old male who was sentenced in the District of Louisiana to a 120-month sentence for Conspiracy to Distribute Methamphetamine and Felon in Possession of a Firearm")

Andrea Circle Bear (died April 28: "30 year-old female who was sentenced in the District of South Dakota to a 26-month sentence for Maintaining a Drug Involved Premises")

William Walker Minto (died April 28: "73 year-old male who was sentenced in the Eastern District of Tennessee to a 240-month term for Conspiracy to Distribute and Possess With Intent to Distribute 1,000 Kilograms or More of Marijuana")

April 29, 2020 in Drug Offense Sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

The sad details of the first woman in federal prison to die from COVID-19

The federal Bureau of Prisons issued this press release last night, titled "Inmate Death at FMC Carswell," which reports these sad details:

On Friday, March 20, 2020, inmate Andrea Circle Bear was transported by the United States Marshal Service from Winner City Jail, Winner, South Dakota to FMC Carswell in Fort Worth, Texas.  Per the Bureau's current COVID-19 procedures, Ms. Circle Bear was immediately placed on quarantine status at FMC Carswell.

On Saturday, March 28, 2020, Ms. Circle Bear was evaluated by FMC Carswell Health Services staff and transported to the local hospital due to potential concerns regarding her pregnancy. After evaluation by the local hospital staff, Ms. Circle Bear was discharged the same day and transported back to FMC Carswell.  On Tuesday, March 31, 2020, Ms. Circle Bear was seen by FMC Carswell Health Services staff for a fever, dry cough, and other symptoms, and was transported to the local hospital for further treatment, evaluation, and placed on a ventilator.

On Wednesday, April 1, 2020, Ms. Circle Bear’s baby was born by cesarean section. On Saturday, April 4, 2020, Ms. Circle Bear was confirmed positive for COVID-19.  On Tuesday, April 28, 2020, Ms. Circle Bear, who had a pre-existing medical condition which the CDC lists as risk factor for developing more severe COVID-19 disease, was pronounced dead by hospital staff.

Ms. Circle Bear was a 30 year-old female who was sentenced in the District of South Dakota to a 26-month sentence for Maintaining a Drug Involved Premises.  She had been in custody at FMC Carswell since March 20, 2020.

More details on what led to this tragic state of affairs can be found via this January 2020 press release from the US Attorney's Office forthe District of South Dakota titled "Eagle Butte Woman Sentenced for Maintaining a Drug Involved Premises":

United States Attorney Ron Parsons announced that an Eagle Butte, South Dakota, woman convicted of Maintaining a Drug Involved Premises was sentenced on January 14, 2020, by Chief Judge Roberto A. Lange, U.S. District Court.

Andrea Circle Bear, a/k/a Andrea High Bear, age 29, was sentenced to 26 months in federal prison, followed by 3 years of supervised release, and a special assessment to the Federal Crime Victims Fund in the amount of $100. Circle Bear was indicted by a federal grand jury on March 12, 2019. She pled guilty on October 7, 2019.

The conviction stemmed from several incidents in April of 2018, when Circle Bear unlawfully and knowingly used and maintained a place for the purpose of distributing methamphetamine on the Cheyenne River Sioux Indian Reservation.

“It is federal crime to knowingly allow a drug dealer to operate out of your home, apartment, or place of business,” said U.S. Attorney Ron Parsons. “Don’t let yourself or your property get mixed up in the world of illegal drugs. It ends badly.”...

Circle Bear was immediately remanded to the custody of the U.S. Marshals Service.

Though I do not know just how far along Ms. Circle Bear was on April 1 when her baby was delivered by cesarean section, I think it is a near certainty that everyone had know by the time of her sentencing in mid January 2020 that she was pregnant.  I also do not know if anyone thought to ask in January 2020 about possibly delaying the start of her prison term until she gave birth, but it is so very telling (and here proved so very deadly) that, even with a seemingly low-level non-violent drug offense, there was apparently no effort to accommodate a woman in the second trimester of her pregnancy.

Moving forward on the timeline, I do not know why it took two months to transfer Ms. Circle Bear from a South Dakota jail to a federal prison in Texas on March 20.  But recall that a national emergency was declared by Prez Trump on March 13, and we had all for a few weeks already been talking about social distancing.  I am fear little or no social distancing was possible while Ms. Cloud Bear was being transported by the United States Marshal Service to FMC Carswell in Texas.  And remember, now, Ms. Circle Bear is in her third trimester when being taking on an 800+ mile trip from South Dakota to Texas in the midst of a national pandemic.  

When Ms. Circle Bear gets to Texas, very pregnant, she is "immediately placed on quarantine status at FMC Carswell."  I am not sure if I find that detail reassuring, but I suspect that status just made being very pregnant that much harder for this young woman.  Oh yeah, BOP also now tells us that Ms. Circle Bear  "had a pre-existing medical condition which the CDC lists as risk factor for developing more severe COVID-19 disease."  So why was she moved to Carswell in the first instance after the pandemic had broken out, and why did BOP apparently do so very little to ensure her health and safety along the way?

There are so many moments these days in which I am unsure about whether I could get more sad and more angry about our COVID criminal justice world, but this story surely has made me more sad and more angry. 

UPDATE: FAMM has this new press release titled "FAMM calls for an investigation into the death of Andrea Circle Bear who died of COVID-19 in Federal Bureau of Prisons custody." Here is a portion:

FAMM President Kevin Ring issued the following statement in response to the death of Andrea Circle Bear, who died giving birth to her child while on a ventilator due to COVID-19 complications while in Federal Bureau of Prisons (BOP) custody.  FAMM is calling for an immediate investigation, and for the expansion of compassionate release and use of home confinement.

“Not every prison death is avoidable, but Andrea Circle Bear’s certainly seems to have been — she simply should not have been in a federal prison under these circumstances,” Ring said. “In fact, nothing better demonstrates our mindless addiction to punishment more than the fact that, in the midst of a global pandemic, our government moved a 30-year-old, COVID-vulnerable pregnant woman not to a hospital or to her home, but to a federal prison.

“Her death is a national disgrace, and I hope it is a wake-up call. Ms. Circle Bear was sentenced to 26 months in prison, not the death penalty. We have to do better. The Justice Department should investigate why this happened and take steps to ensure that it never happens again.”

April 29, 2020 in Drug Offense Sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

Tuesday, April 28, 2020

A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns

In recent posts here and here, I highlighted some of the COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) available via Westlaw.  (And, as I keep mentioning, I think these Westlaw listings do not represent all sentence reductions being granted these days).  Though a new week is just getting started (with Westlaw only showing rulings through April 27), I have spotted lots of new grants of sentence reductions since my last posting.  It is heartening to see these rulings from coast-to-coast and lots of places in-between:

United States v. Robinson, No. 18-cr-00597-RS-1, 2020 WL 1982872 (ND Cal. Apr. 27, 2020)

United States v. Gorai, No. 2:18-CR-220 JCM (CWH), 2020 WL 1975372 (D Nev. Apr. 24, 2020)

United States v. Coles, No. 00-cr-20051, 2020 WL 1976296 (CD Ill. Apr. 24, 2020)

United States v. Thorson, No. 5:16-CR-00017-TBR, 2020 WL 1978385 (WD Ky. Apr. 24, 2020)

United States v. Williams, No. 3:17-cr-121-(VAB)-1, 2020 WL 1974372 (D Conn. Apr. 24, 2020)

United States v. Park, No. 16-cr-473 (RA), 2020 WL 1970603 (SDNY Apr. 24, 2020)

United States v. Walls, No. 92-80236, 2020 WL 1952979 (ED Mich. Apr. 23, 2020)

United States v. Jackson, No. 4:14-CR-00576, 2020 WL 1955402 (SD Tex. Apr. 23, 2020)

United States v. Curtis, No. 03-533 (BAH), 2020 WL 1935543 (DDC Apr. 22, 2020)

United States v. Bess, No. 16-cr-156, 2020 WL 1940809 (WDNY Apr. 22, 2020)

United States v. Sanchez, No. 18-cr-00140-VLB-11, 2020 WL 1933815 (D Conn. Apr. 22, 2020)

In addition to this encouraging dozen of sentence reductions grants using § 3582(c)(1)(A) accelerated by COVID concerns, last week also brought a remarkable ruling that focused on pre-COVID concerns.  In United States v. Haynes, No. 93 CR 1043 (RJD), 2020 WL 1941478 (EDNY Apr. 22, 2020), the court granted relief to a fellow who, back in the early 1990s, got 40 years of extra mandatory prison time based on stacked gun charges brought by prosecutors after he turned down a plea deal calling for around an eight-year term.  As the court now explained: "Haynes has served almost 27 of the 46½ years to which he was sentenced.  To put that in context, he has served more than three times the length of the high end of the sentence he would have received had he pled guilty."  With that background and after some extended discussion of relevant precedent, the court added:

The Court readily concludes, on the facts as detailed above — including the brutal impact of Haynes’s original sentence, its drastic severity as compared to codefendant Rivers’s ten-year term, its harshness as compared to the sentences imposed on similar and even more severe criminal conduct today, and the extent to which that brutal sentence was a penalty for Haynes’s exercise of his constitutional right to trial — that the FSA’s elimination of the § 924(c) sentencing weaponry that prosecutors employed to require that sentence is an extraordinary and compelling circumstance warranting relief under § 3582(c).  For an individual like Haynes, with three pre-amended § 924(c) counts in a single indictment, the change spells the difference between thirty years in or out of prison.

I continue to be pleased to see (some) judges recognizing that 3582(c)(1)(A) motions can and should provide a means to correct (some) past unjust federal sentences.  The COVID crisis and the threat it poses to vulnerable prisoners is surely increasing the willingness of judges to review swiftly those past sentences that may no longer serve any sentencing purpose.  But, the sad reality of prison is that it is often bad, even in normal times, for the health of both inmates and the broader community.  Judge (and prosecutors and lawmakers) ought always be carefully checking and double-checking and triple-checking whether the considerable tax dollars used to keep persons incarcerated are sound public safety investments.

Prior recent related posts since lockdowns:

Some (of many) pre-COVID posts on § 3582(c)(1)(A) after FIRST STEP Act:

April 28, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Mandatory minimum sentencing statutes, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (1)

Monday, April 27, 2020

Feds appealing last week's judicial order to transfer vulnerable prisoners "out of Elkton through any means"

As reported in this local article, "Federal prosecutors on Monday said they would appeal a federal judge's decision to order the Bureau of Prisons to release or transfer hundreds of inmates at an Ohio federal lock-up where an outbreak of the novel coronavirus killed several inmates."  Here is more:

Assistant U.S. Attorney James Bennett filed a motion asking the Sixth Circuit in Cincinnati to review U.S. District Judge James Gwin’s Wednesday granting of the ACLU of Ohio for a temporary injunction seeking the release of prisoners from the Federal Correctional Institution Elkton. The BOP announced on Sunday that a seventh inmate at the facility, identified as 55-year-old Richard Nesby, had died due to complications related to the COVID-19 virus.

The filing came just before a scheduled 10:30 a.m. teleconference hearing in which Bennett told Gwin he would also on Monday ask Gwin to put his order on hold.  BOP identified more than 800 prisoners who would fall under Gwin's order for the prison to either release or relocate prisoners who are 65 years old and older and those who have certain pre-existing conditions that put them at risk of serious illness associated with the virus.

Gwin gave the government two weeks to determine which prisoners it can release on parole, furlough, compassionate release or home confinement.  The government also has the option to move the inmates to other prisons "where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished."  

Bennett last week requested Gwin's permission to file the list of prisoners under seal. He argued in Monday's hearing that publicly naming those prisoners would divulge their personal and private medical information.  Gwin rejected the motion and ordered the government to make public a list that includes the name and prison identification number of each prisoner, and the underlying court and case number for each one.  Gwin separately ordered the bureau to give the plaintiffs' lawyers a list of the specific medical conditions that it included in its search criteria....

The ACLU sued after the coronavirus spread among prisoners and staff.  It said staff members didn't take proper precautions to protect the inmates and prisons violated the constitutional rights of the inmates.  Attorneys for the prisons bureau had urged the judge not to release any inmates, saying the staff was taking the proper precautions to isolate those with the virus, conduct health screenings and identify suitable candidates for home confinement.  Gwin, however, wrote that staff wasn't doing enough and believed the prison bureau's number constitutes an undercounting of the actual number of cases at Elkton.

This BOP page on FCI Elkton indicates the facility has an inmate population of just over 2400 persons. I find it remarkable, though not all that surprising, that a full one-third of this population is at-risk according to CDC guidelines.

Prior related post:

April 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Federal judge orders more social distancing, but does not mandate more releases, for Cook County Jail in Chicago

As reported in this Chicago Tribune piece, a "federal judge on Monday issued a preliminary injunction mandating additional social distancing measures to battle the spread of coronavirus at the Cook County Jail, including banning double-inmate cells and group housing in most cases."  Here is more about this (limited) new ruling:

In an 87-page order, U.S. District Judge Matthew Kennelly gave the sheriff’s office until Friday to implement new plans eliminating “bullpens” to house new inmates being processed into the jail, providing face masks to all detainees under quarantine, and regularly sanitizing “all frequently touched surfaces and objects.”

Double-inmate cells will be permitted only in certain situations — such as on tiers where inmates are quarantined after testing positive for COVID-19 or are on suicide or other medical watch, Kennelly ruled. The judge also wrote that dormitory-style tiers can only be used if they are at less than 50% capacity, so the 6-foot distancing rule can be better enforced.

The ruling came as part of an ongoing lawsuit filed by the Loevy and Loevy law firm and the MacArthur Justice Center at Northwestern University alleging Sheriff Tom Dart has failed to stop a “rapidly unfolding public health disaster” at the jail, which has been identified as one of the nations’ leading hot spots for coronavirus infections.

As of Sunday, six detainees have died after contracting COVID-19 at the jail, according to the sheriff’s office. Another 229 inmates currently have the virus, 17 of whom are hospitalized. Hundreds of others have tested positive and have since recovered. Also, 158 correctional officers who work at the jail are currently positive for COVID-19. One officer has died of the disease, the sheriff’s office said.

While Kennelly ordered new social distancing provisions, he once again denied other relief sought by the plaintiffs, including ordering the release of medically vulnerable detainees due to the pandemic. Kennelly wrote that detainees have recourse for such relief in state court — where inmates can ask for an emergency review of their bond conditions — and that it would not be appropriate for a federal judge to intervene. “The bottom line is that the plaintiffs have not shown that the bond reduction remedy offered by the state courts is any less effective than a federal remedy,” Kennelly wrote.

The injunction will likely remain in place until coronavirus is no longer a threat to spread among the jail population, the judge said. “Under ordinary circumstances, there is nothing constitutionally inappropriate about housing detained persons in groups and allowing them to come into contact with each other,” Kennelly wrote. “Currently we are not living in ordinary circumstances ... but once matters return to something approaching normal, it may be appropriate to loosen the requirements of the injunction.”...

Locke Bowman, an attorney for the plaintiffs, said Monday the ruling reflects that Kennelly “recognizes that the special circumstances of this pandemic” require the sheriff to take every reasonable precaution to limit the spread of the disease in the jail. “Our prayer is that this decision has meaningful effects on the lives and the safety of the men and women confined to the jail,” Bowman said.

Last week, Kennelly heard detailed testimony from experts on both sides of the issue. The assistant director of Cook County Jail testified that more than 175 tiers in the sprawling facility have been transitioned to single-cell housing, officials had spray painted “X’s” on the floors to try to keep detainees 6 feet apart, and inmates were being handed spray bottles to sanitize showers after use.

Attorneys for the plaintiffs, meanwhile, continued to argue that not enough is being done to enforce social distancing — such as double-occupant cells and dormitories where dozens of inmates sleep together on cots is simply impossible, and inmates are paying for it with their health. “The virus is spreading rapidly in the jail since the issuance of this court’s order, and that is not surprising: People are sleeping within 3 feet of each other, eating and using showers in close proximity to each other, and touching the same surfaces,” the plaintiffs wrote in an ongoing request for a preliminary injunction....

As of Friday, the inmate population at Cook County Jail had dipped to just below 4,155 — its lowest mark in decades.

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

Sunday, April 26, 2020

The latest "official" (and hinky?) COVID numbers from the federal Bureau of Prisons

BOP's COVID-19 Update page, as of April 26, has this report of the latest data on "COVID -19 Cases":

As of 04/26/2020, there are 799 federal inmates and 319 BOP staff who have confirmed positive test results for COVID-19 nationwide. Currently, 385 inmates and 124 staff have recovered. There have been 27 federal inmate deaths and 0 BOP staff member deaths attributed to COVID-19 disease....

Since the release of the Attorney General's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 1,576 inmates on home confinement; an increase of 55.2 percent.

As regular reader know, I have previously expressed concern that these "official" numbers are not a full reflection of the "facts on the ground." And a couple of press pieces this weekend highlight why BOP representations may not always be spot on:

From Forbes, "The Federal Bureau Of Prisons’ 'List' Has Caused Confusion In Courts And Prisons"

From the Marshall Project, "Few Federal Prisoners Released Under COVID-19 Emergency Policies"

Somewhat encouragingly, this press release from Senator Dick Durbin's office indicates that there is a bipartisan effort to review the work of BOP and DOJ in this arena:

Following the Department of Justice (DOJ) Inspector General’s (IG) decision to assess whether facilities housing Bureau of Prisons (BOP) inmates are complying with available guidance and best practices regarding preventing, managing, and containing potential COVID-19 outbreaks, U.S. Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) requested that DOJ Inspector General (IG) Horowitz’s review also include the implementation of relevant legislative authorities and Attorney General directives giving BOP authority to transfer at-risk inmates to home confinement, including the recently-enacted CARES Act and the First Step Act, landmark prison reform legislation authored by Grassley and Durbin.

“We are concerned that BOP is not fully and expeditiously implementing relevant statutory authority and directives from the Attorney General.  We are also concerned about how closely BOP is following CDC guidance or taking other preventive measures to adequately protect BOP staff and inmates from the spread of COVID-19,” the Senators wrote.  “We also worry that BOP is significantly underestimating the rate of COVID-19 infection in BOP facilities because BOP has not yet conducted the number of tests on staff or inmates appropriate for facilities where a highly contagious virus can be easily spread.”

Full text of the letter from Senators Durbin and Grassley is available here.

April 26, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Reviewing some more national and local accounts of (mostly declining) crime rates during a pandemic

In this post last week, I complained about a Bloomberg headline blaring that "Some Crimes Are Spiking in America’s Major Cities," even though the bulk of the data reviewed in the article detail that crime was down considerably in a number of cities.   Today I can flag this recent CBS News piece that reviews mostly positive crime news with a very positive heading "Miami goes seven weeks without a homicide for first time since 1957."  Here are excerpts:

From February 17 until April 12 of this year — a total of seven weeks and six days — Miami had no reported homicides, according to police. In 1957, the city went 9 weeks and 3 days without any reported homicides. In 1960, a period of 6 weeks and 5 days passed without a homicide.  According to the Miami police, other crimes have also decreased.  The department said the decrease has extended to domestic violence calls.  But Miami Police Chief Jorge Colina told The New York Times he is concerned incidents of domestic violence and child abuse may be underreported during the order. 

Crime is also down in Baltimore since Maryland issued its own stay-at-home order, CBS Baltimore reports. Although criminal incidents in the city still continue on a daily basis, assault, carjacking, robbery and shootings have all gone down since the order was implemented.  When compared to the same time last year, common assaults in Baltimore went down 34%, aggravated assaults went down 17%, and shootings dropped by 8%.

Los Angeles similarly reported that violent crime and property crimes are down compared to last year, according to CBS Los Angeles.  Within a 9.73% drop in violent crime overall, homicides in particular were down 21%.

The same, unfortunately, cannot be said of Chicago. Despite a stay-at-home order in the city, robberies and shootings were up in the last week, according to CBS Chicago.  Police responded to 19 shootings Tuesday night, six of which were homicides.  That means shootings were up 42% from the same week last year, according to data analyzed by the station.  "We're fighting the pandemic, and we're fighting the epidemic," said Tony Raggs with the Alliance of Local Service Organizations.  "The epidemic being violence."

In Los Angeles, the drop in violent crime has been marred by an increase in domestic violence calls.  According to Los Angeles County Sheriff Alex Villanueva, deputies responded to about 8% more domestic violence calls between mid-March and mid-April, when compared to last year.

A quick search of headlines via Google news produces similar crime tales, mostly positive but not entirely, from places other than big cities.  Here is a sampling:

From upstate Florida: "Coronavirus: Crime in Volusia, Flagler and St. Johns edges down during quarantine"

From central Kentucky: "Increase in violence in Louisville another deadly side effect of COVID-19"

From downstate Missouri: "Crime rates see slight dip during COVID-19 quarantine: Vehicles continue to be rifled for cash, valuables"

From upstate New York: "Shutdown leads to decrease in crime"

From central Rhode Island: "Violent crime in Providence down 53% during pandemic"

From eastern Texas: "Crime rates in Texarkana are steady due to COVID-19"

From central Wisconsin: "Crime Trends Change During COVID-19 Restrictions"

Prior related posts:

April 26, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (2)

Saturday, April 25, 2020

Mass COVID infections thanks to mass incarceration ... but hoping it might lead to mass increase in understanding this virus

The Marshall Project is continuing to provide great COVID coverage, and its has two new pieces that spotlight the massive spread of the coronavirus among incarcerated individuals.  Here are the headlines and highlights:

From California to North Carolina, prisons that do aggressive testing are finding that infection is spreading quickly.  Take Ohio’s state prison system, which has two of the most serious outbreaks in the country. It has started mass testing of all staff and inmates at its most afflicted facilities.  Marion Correctional Institution, an hour north of Columbus, has reported four deaths, but has more than 2,000 prisoners and at least 160 staffers who tested positive for the virus.  At Pickaway Correctional Institution an hour away, at least nine prisoners have died, while more than 1,500 prisoners and 79 staffers have tested positive.

We now can see, through data collected by The Marshall Project, that thousands of prisoners have caught the illness, and the number of cases has grown more than threefold in the last week alone.  Thousands more workers, correctional officers and medical staff have been sickened.  And more than 140 people — most of them incarcerated — have died thus far.

It is hardly surprising that COVID spreads wildly in a prison setting where social distancing is impossible and effective hygiene is always challenging.  But I so badly want to hope that the fact that such large populations are now testing positive might enable us to gain a greater understanding of this devilish virus.  Encouragingly, this new USA Today article, headlined "Mass virus testing in state prisons reveals hidden asymptomatic infections; feds join effort," suggests it might:

But 39 inmates testing positive for the coronavirus at the Neuse state prison in Goldsboro, North Carolina, was still cause for alarm.  Of the more than 50 detention centers across the state, none had more infections at the time than Neuse, prompting officials to take the extraordinary step of testing all 700 prisoners at the medium security facility near Raleigh.

Within a week, infections had surged to 444.  Perhaps even more revealing: More than 90% of the newly diagnosed inmates displayed no symptoms, meaning that the deadly virus could have remained hidden had the state followed federal guidelines that largely reserve testing for people displaying common symptoms, such as fever and respiratory distress.  “We would never have known,” North Carolina Department of Public Safety spokesman John Bull said.

Even as vulnerable prison systems have ramped up scrutiny of inmates and staffers with broad quarantines and elaborate contact tracing investigations, increased testing is proving just as crucial in assessing the virus’ spread within detention systems as it is in the free world.  Mass testing at three state prisons in Ohio has yielded results similar to North Carolina's, with officials suggesting that the strategy and findings could have broad implications, not just for containing outbreaks in detention centers but in making larger decisions about when states should re-open for business and loosen social distancing restrictions.

I am so saddened that COVID has turned our prisons and jails into human petri dishes, and I am so troubled even thinking about incarcerated populations serving as some kind of experimental "control" group in continuing research.  Nevertheless, at a time where it seems we still know so little about COVID, I hope our public health experts and researchers can, in an ethically appropriate way, effectively use the new infection data coming out of our nation's many prisons to help increase our understanding of this virus in order to better prevent its spread and better treat those who contract it.

UPDATE: Here is also a lengthy Reuters piece, headlined "In four U.S. state prisons, nearly 3,300 inmates test positive for coronavirus -- 96% without symptoms," which includes these passages:

As mass coronavirus testing expands in prisons, large numbers of inmates are showing no symptoms. In four state prison systems — Arkansas, North Carolina, Ohio and Virginia — 96% of 3,277 inmates who tested positive for the coronavirus were asymptomatic, according to interviews with officials and records reviewed by Reuters. That’s out of 4,693 tests that included results on symptoms.

The numbers are the latest evidence to suggest that people who are asymptomatic — contagious but not physically sick — may be driving the spread of the virus, not only in state prisons that house 1.3 million inmates across the country, but also in communities across the globe. The figures also reinforce questions over whether testing of just people suspected of being infected is actually capturing the spread of the virus. “It adds to the understanding that we have a severe undercount of cases in the U.S.,” said Dr. Leana Wen, adjunct associate professor of emergency medicine at George Washington University, said of the Reuters findings. “The case count is likely much, much higher than we currently know because of the lack of testing and surveillance.”...

Reuters surveyed all 50 state prison systems. Of the 30 that responded, most are only testing inmates who show symptoms, suggesting they could be vastly undercounting the number infected by the coronavirus.

Florida and Texas, whose inmate populations are bigger than Ohio’s, report a combined total of just 931 cases — far fewer than the 3,837 inmates who tested positive in Ohio. New York, the epicenter of the U.S. outbreak, has reported 269 positive cases among 51,000 inmates. All three states are testing only symptomatic prisoners.

“Prison agencies are almost certainly vastly undercounting the number of COVID cases among incarcerated persons,” said Michele Deitch, a corrections specialist and senior lecturer at the University of Texas. “Just as the experts are telling us in our free-world communities, the only way to get ahead of this outbreak is through mass testing.”...

“We know mass testing is going to make our numbers spike and might make us look bad,” said Chris Gautz, spokesman for the Michigan Department of Corrections. “But I don’t think there’s another prison system in the country that doesn’t have large numbers. They just might not be testing as rigorously as we are.”

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

"Protecting Rural Jails From Coronavirus"

The title of this post is the title of this new memorandum from Data for Progress authored by Aaron Littman, Lauren Sudeall and Jessica Pishko. Here is its executive summary:

In the summer of 2015, Louisiana’s LaSalle Parish Sheriff’s Department arrested 19 people in a covert drug operation dubbed “Operation Fielder’s Choice.”  One of those people was Charles Keene, who allegedly sold an informant two pills for $20 . For this, he was arrested and, because Keene could not afford bail, he was jailed until trial.

LaSalle is a rural county and its biggest town, Jena, has a population of 3,000.  Because the public defender’s office was both underfunded and had conflicts with Keene’s case — two of the public defenders had represented the informant in previous proceedings — Keene was forced to wait in jail as his trial date faced postponement after postponement. Charles Keene believed he was innocent and hoped to challenge the evidence used against him.  But, the judge wouldn’t proceed until Keene was represented by counsel.  For months, Keene wrote letters asking the judge to put his case on the calendar.  The trial didn’t happen until 2017.

For two years, Charles Keene was incarcerated in the county jail where he faced the deprivations of confinement, a lack of adequate medical care, and the near-loss of custody of his children.  Through his case is one that could happen anywhere in the country, the problems Keene faced are representative of the challenges rural criminal legal systems face.

While national headlines have focused on the spread of coronavirus in large, urban jails, the same attention is now turning to America’s rural communities, where the virus is gaining traction through community spread.  Although the largest outbreaks thus far have been in large jails, like those in Chicago, Houston, and New York, it’s quite clear that rural regions are not going to avoid the ravages of this disease. The question is how these communities will respond.

Rural communities have certain traits that make them particularly vulnerable in a pandemic.  On the whole, people living in rural regions are poorer, older, and less healthy. One in three rural counties has a poverty rate over 20%. More than half of all births at rural hospitals are covered by Medicaid.  Rural communities are quickly losing hospitals and health care providers.  Small newspapers are closing across the heartland, and internet access in rural areas is often limited, so rural residents may not have accurate information about the pandemic or how to best respond.

Many of these concerns are amplified in rural jails.  People detained in rural jails are likely to be there because they cannot afford cash bail.  Judges in rural courts often send people to jail for drug possession, in part because there are few diversion programs. Given the paucity of medical providers and other social services in rural areas, the criminal legal system is often used to address a range of social, emotional, and financial problems that elsewhere may be handled outside of the court system through community treatment or other programs. And people inside the jails may have prior substance use or other medical problems that are exacerbated in a pandemic.

Perhaps most alarming, rural jails are frequently located in counties that lack hospital capacity to handle the coronavirus pandemic.  Our analysis shows that a significant percentage of people being held in jails — 12% nationally and over a third in some states—are housed in counties without any ICU beds.  This could have disastrous consequences should an outbreak occur in a jail located in a rural community without access to critical care resources.

The need for reform in both rural and urban jails is urgent.  This report discusses specific challenges and responses to decarceration in rural communities in light of the coronavirus.

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

Friday, April 24, 2020

Some exhausted musings on the so-called "exhaustion" procedural requirement for sentence-reduction motions under § 3582(c)(1)(A)

I tend to start many mornings these COVID-tainted days on Westlaw checking out new district court opinions responding to motions by persons in federal prison seeking a sentence reduction under § 3582(c)(1)(A).  A dozen or more new opinions appear each day now, but many deny relief simply on the basis of the so-called "exhaustion" procedural requirement in § 3582(c)(1)(A).  A few weeks ago, I discussed in this post the sloppy Third Circuit panel dicta on this issue in Raia, and it is frustrating (but not surprising) that many district courts nationwide are now citing Raia when rejecting motions under § 3582(c)(1)(A) on this procedural ground.  At the end of another long week, I wanted to explain why it seems to me misguided, on various grounds, to interpret this "exhaustion" procedural requirement as an absolute bar to courts considering the merits of sentence-reduction motions under § 3582(c)(1)(A). 

First, the statutory basics. The text now of § 3582(c)(1)(A), after amendment by the FIRST STEP Act (in bold), provides: "the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment..."  In other words, this text provides that a sentence reduction motion can be acted upon by the court (1) immediately if brought by BOP, or (2) as soon as a defendant requests such a motion and that request is formally/finally denied by BOP or 30 days has lapsed, "whichever is earlier." 

Based on the text alone, I can understand why courts read this provision as precluding consideration of a prisoner's sentence-reduction motion until at least 30 days after a BOP request is made by the defendant.  As I explained in my Raia post, this provision is pretty clearly not jurisdictional because the language and structure make it much more what the Supreme Court calls a "nonjurisdictional claim-processing rule."  Fort Bend County v. Davis, No. 18-525 (S. Ct. June 3, 2019) (available here).  Still, even as a claim-processing rule, the text is seemingly clear and mandatory: "The statute provides no exceptions to the exhaustion requirement, and the Supreme Court has clearly stated that courts may not manufacture exceptions where they do not exist." United States v. Miamen, No. 18-130-1 WES, 2020 WL 1904490 (D RI Apr. 17, 2020).  Further, as another court has put it: "the administrative exhaustion requirement for compassionate release motions serves important policy functions [because the] BOP is often in the best position to evaluate the scope of an inmate’s medical condition, the adequacy of the release plan, and any danger posed to the community if they are released."  United States v. Gamble, No. 3:18-cr-0022-4(VLB), 2020 WL 1955338 (D Conn Apr. 23, 2020).

Though this basic textual and policy analysis is not misguided, it largely looks past all the reasons that Congress in the FIRST STEP Act enabled district judges to consider the merits of a sentence reduction under § 3582(c)(1)(A) without awaiting even full consideration of a request by BOP.  For years, BOP failed to use its authority to seek reductions even in the most compelling of cases, and Congress decided to district courts could and should assess sentence-reduction requests without BOP serving as any kind of gatekeeper.  Critically, with the FIRST STEP Act revision, Congress did not actually require defendants to exhaust the BOP motion-request process before turning to the courts — which would have made sense if Congress still trusted the BOP process to some extent; Congress added, critically, that a sentence-reduction motion could be considered after "the lapse of 30 days from the receipt of such a request."  Put another way, this statute actually does have an express exception to a true exhaustion requirement in the form of the "lapse of 30 day" provision.

But, so the argument might go, even though Congress did create an exception to BOP exhaustion in the form of a "30 day" lapse requirement, why should courts even consider short-circuiting that express timeline?  Well, in the midst of a pandemic, a timeline intended by Congress to give a prisoner quick access to the court sensibly can and should be sped up consistent with the overall goals of § 3582(c)(1)(A).  In the word of one court:  "The question therefore becomes whether applying equitable exceptions to section 3582(c)(1)(A) would be incompatible with Congressional intent .... [and] this Court agrees with Judge Rakoff that 'Congress cannot have intended the 30-day waiting period ... to rigidly apply in the highly unusual situation in which the nation finds itself today'."  United States v. Bess, No. 16-cr-156, 2020 WL 1940809 (WDNY Apr. 22, 2020). 

Especially important here seems to be a consideration emphasized in this New York Times editorial: "Releasing these prisoners during this crisis is not just an act of mercy to protect prisoners’ health, [it also serves] the health of the prison staff.  Fewer sick inmates means less strain on the already burdened prison hospital system."  Does it really make sense to believe Congress would want courts to refuse to consider (for a few weeks) a request for a sentence reduction when any delay will further imperil prison staff as well as inmates?  In normal times, the procedural requirement of § 3582(c)(1)(A) shows some respect for BOP officials; in COVID times, rigid application may inadvertently cost the lives of some BOP officials.

Last but not least, at a time when at least 24 federal inmates have died from COVID and in a week in which a federal judge has found that federal inmates in one facility "have demonstrated a likelihood of success on the merits" of an Eighth Amendment claim, an equitable exception to the procedural requirement of § 3582(c)(1)(A) arguably has a strong constitutional foundation.  I say this because, in order to prevail substantively, a defendant seeking a sentence reduction under § 3582(c)(1)(A) must make the case that "extraordinary and compelling reasons warrant" a reduction with consideration given also to "the factors set forth in 3553(a)."  In other words, the only persons who are ultimately impacted by so-called "exhaustion" requirement are those who can make a truly compelling case to a federal judge that, consistent with congressional sentencing purposes, a shorter sentence is now justified.  Amidst a pandemic which has already killed dozens of federal prisoners, to deny deserved substantive relief on questionable procedural grounds strikes me as quite constitutionally suspect. 

April 24, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Feds again shift guidance on prisoner releases due to coronavirus"

The title of this post is the headline of the latest Politico article trying to make sense of the crazy gyrations of federal authorities dealing with prisoners releases.  Here are excerpts:

Federal prison authorities have again changed the criteria used to consider inmates for early release, with the latest move broadening the set of prisoners eligible to be sent home on account of the dangers posed by the coronavirus.

Just days after many inmates who had been in pre-release quarantine were stunned to be told they did not qualify due to a policy change, the Bureau of Prisons issued new guidance saying at least some of those prisoners could be considered for home confinement.

The new standard opens the door to such releases for prisoners who have served at least 25 percent of their sentences and who have less than 18 months remaining on their term. Earlier in the week, prison officials and federal prosecutors told inmates and judges that the Bureau of Prisons was only considering home confinement for inmates who had served at least half of their sentence.

Inmate advocates said the effect of the change would be modest, permitting the release of about 200 additional prisoners serving relatively short federal sentences. Authorities reported Thursday that about 1,500 inmates were sent to home confinement as the Covid-19 crisis escalated, out of about 171,000 federal prisoners.

The latest revision could be of help to some high-profile inmates, but disappointing to others. Under the new criteria, a former personal lawyer to President Donald Trump, Michael Cohen, could be eligible for home confinement next month on the three-year sentence he is serving. However, former Trump campaign chairman Paul Manafort — serving a seven-and-a-half-year prison term — would likely not qualify for home confinement for another year or more.

Kevin Ring, of the criminal justice reform group FAMM, said he welcomed the latest change, but said the abrupt U-turns were cruel to inmates and their families. “This awful episode will not be resolved until the hundreds of people who had their home confinement dates revoked are sent home, too,” he said....

One federal prosecutor told a judge in Manhattan Wednesday that she was unable to comply with an order to detail the standards due to “uncertainty” over the policies in force. On Thursday, the government submitted an affidavit from a federal prison official in Miami, Jennifer Broton, describing the shift to the new standard allowing home confinement for inmates who have completed as little as 25 percent of their sentences, if they have 18 months or less left to serve.  Those who’ve served 50 percent and have more than 18 months left can still be considered, she said.  Broton stressed that those standards simply set priorities for the agency and “are subject to deviation in BOP’s discretion in certain circumstances and are subject to revision as the situation progresses.”...

Separately, federal prison officials announced Thursday that they are ramping up what had previously been scant testing of inmates for Covid-19.  The Bureau of Prisons said it received 10 Abbott rapid testing machines and 264 test kits on April 10 and expects to receive another 10 machines next week.  “The deployment of these additional resources will be based on facility need to contain widespread transmission and the need for early, aggressive interventions required to slow transmission at facilities with a high number of at-risk inmates such as medical referral centers,” the statement said.

The announcement followed an injunction issued Wednesday by a federal judge requiring transfer or release of “vulnerable” inmates at a federal prison in Lisbon, Ohio, that has seen a serious outbreak of the virus, including the deaths of six prisoners. U.S. District Court Judge James Gwin called testing there “shockingly limited” and “paltry” in the face of signs of widespread infection. He noted that the prison, known as Elkton, had received fewer than 100 tests while a nearby state prison of a similar size had done about 4,000 tests.

Two federal prisons in New York City, the biggest hotspot for infections in the U.S., reported Thursday they have tested a total of 19 inmates since the outbreak began. Eleven were positive. Thus far, 620 federal inmates have tested positive for the coronavirus and 24 have died. The number of reported prisoner infections could rise sharply in the coming days as testing increases, the bureau said.

Federal prosecutors opposed the order to release or transfer Elkton inmates, but no appeal was immediately filed. “We are reviewing the opinion and assessing next steps,” a Bureau of Prisons spokeswoman said Thursday.

I believe this BOP memo dated April 22 might be the "new guidance" referenced in this Politico piece, but these days I have largely given up trying to figure out what the heck is going on in the federal system.

A few of many prior related posts:

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

Thursday, April 23, 2020

According to BOP reporting, federal prison population now shrinking about 1,000 persons per week

Every Thursday morning, one can see at this webpage an official refreshed count of the total number of federal inmates as calculated weekly by the Federal Bureau of Prisons.  As noted before, that page also has data on the total number of federal inmates for each fiscal year going back to 1980.   For some numerical context, these data show that in FY1995 the federal prison population first hit six digits and stood at 100,958; in FY2007, federal prison population had nearly doubled to 200,020; and in FY2013, the federal prison population hit a modern high of 219,298.

After 2013, a range of political, legal and practical realities helped create a new and steady trend of reduced federal incarceration levels.  Retroactively applied reductions in crack sentences and then in all drug sentences contributed, but the most important factor may have been fewer federal prosecutions: data here from the US Sentencing Commission shows roughly 20,000 fewer offenders being sentenced in the federal system between 2011 (when 86,201 persons were sentenced in federal courts) and 2017 (when "only" 66,873 persons were sentenced).  Yet, starting in 2018, the number of offenders being sentenced in the federal system started to tick back up; in 2019, according to the USSC, there were 76,538 sentenced federal offenders.  New good-time credit flowing from the FIRST STEP Act and other reforms in that Act helped thwart a complete reversal in the downward trends of the total number of persons in federal prison.  I noted in this post back in July 2019 that the federal prison population had dropped under 180,000 prisoners for the first time since back in FY 2003.

Though we are now really only a little more than a month into our COVID world, it is not too early to notice how the virus and reactions thereto is now driving federal prison populations down even more.  Specifically, here are a few recent dates and BOP population counts:

March 19: 175,500 persons reported by BOP as "Total Federal Inmates"

April 2:    174,837 persons reported by BOP as "Total Federal Inmates"

April 9:    173,686 persons reported by BOP as "Total Federal Inmates"

April 16:  172,349 persons reported by BOP as "Total Federal Inmates"

April 23:  171,434 persons reported by BOP as "Total Federal Inmates"

After a slow start, we have now seen over the last three weeks an average drop in federal inmates as reported by BOP of around 1,100 persons.  And we are now at the lowest federal prison population since 2002.

Though pleased to see this trend, I am inclined to take a "glass half empty" perspective on these numbers.  For starters, these numbers include the 24 federal inmate deaths that BOP has officially reported, and I cannot help but wonder if they also reflect some (large?) number of sick federal inmates who have been moved to medical facilities outside of the BOP network. Moreover, even a 4000-person reduction in the federal prison population from March 19 to April 23 represents less than a 2.5% overall reduction at a time when there likely are tens of thousands of vulnerable persons confined in high-risk federal prison environs.  (I suggested in this post right after Attorney General Barr issued his first restrictive home-confinement memo that more than 10,000 might be eligible for home confinement under even those guidelines.)

Reflecting on these numbers raises some other interesting issues and questions.  The BOP's COVID-19 Update page, as of midday April 23, is reporting that "the BOP has placed an additional 1,440 inmates on home confinement."  That number represents only about one third of the 4000-person reduction in the federal prison population from March 19 to April 23, and so I am left to speculate about other factors in play here.  I have been noting many sentence-reduction motions being granted by federal judges, but that likely accounts for only a few hundred additional releases.  More grants of pretrial release may also be part of the story, but I also wonder about the impact of (a) deferred prison report dates and (b) reductions in the number of new sentencings and/or new persons getting sentenced to prison.  

Remarkable times.

A few of many prior related posts:

April 23, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, April 22, 2020

Federal Judge orders BOP to find ways to transfer prisoners "out of Elkton through any means" in the coming weeks

As reported in this ACLU press release, "Today, Judge James S. Gwin of the United States District Court of the Northern District of Ohio granted a preliminary injunction ordering Elkton officials to identify, within one day, all members of the subclass of medically vulnerable prisoners encompassed by the class action habeas petition filed by the ACLU of Ohio and the Ohio Justice and Policy Center on April 16. Following identification, Elkton officials are ordered to evaluate the prisoners’ eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two weeks. Elkton officials must quarantine prisoners for 14 days prior to transfer out of Elkton." Here is more from the press release:

“Countless lives will be saved as a result of this order. Even since we filed our class action the death toll at Elkton has doubled. Judge Gwin was absolutely correct in recognizing the dire situation at Elkton and we are eager to assist and facilitate the release of the members of the medically vulnerable class,” said David Carey, Senior Staff Attorney for the ACLU of Ohio.

In undertaking the evaluation, the judge further rules that older prisoners with heart, pulmonary, diabetes or immunity risks should receive priority review, and that any members of the class action transferred out of Elkton cannot return to the facility until the thread of the virus is abated or until a vaccine is available.

“People living in prison have Constitutional rights, too. This order will help ensure the well-being of prisoners, staff, and the surrounding community, while preserving our Constitutional obligations,” added Joseph W. Mead, Cooperating Attorney for the ACLU of Ohio.

The full 21-page order from Judge Gwin is available here, and here is the order's conclusion:

The Court orders the Respondents to identify, within one (1) day all members of the subclass as defined in this Order.  Respondents must identify in the list each subclass member’s sentencing court and the case number of their underlying criminal conviction.

Following identification, the Court orders Respondents to evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or nontransfer furlough within two (2) weeks.

In undertaking this evaluation, Respondents will prioritize the review by the medical threat level.  For example, older inmates with heart, pulmonary, diabetes or immunity risks should receive review priority over subclass members who are younger.

Subclass members who are ineligible for compassionate release, home release, or parole or community supervision must be transferred to another BOP facility where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished.  In transferring subclass members, Respondents must continue to comply with BOP policy of quarantining inmates for 14 days prior to transfer out of Elkton.

Any subclass members transferred out of Elkton may not be returned to the facility until the threat of the virus is abated or until a vaccine is available and Elkton obtains sufficient vaccine supplies to vaccinate its population, whichever occurs first.

UPDATE: This Politico article discusses this ruling by Judge Gwin along with another ruling from Louisiana that refused to grant relief to prisoners in another federal institution with many infected inmates.  This piece is fully headlined "Judge orders transfer or release for some inmates at virus-wracked Ohio federal prison; But another court refuses to act as 'super-warden' for hard-hit U.S. prison complex in Louisiana."  Here are excerpts:

A judge has ordered the release or transfer of hundreds of elderly and vulnerable inmates at a federal prison in Ohio that has seen a particularly deadly and widespread outbreak of the coronavirus.

Although federal courts have been flooded in recent days with release and resentencing requests in individual cases, the ruling Wednesday from U.S. District Court Judge James Gwin appeared to be the first that could lead to a group release of federal convicts as a result of the ongoing Covid-19 pandemic....

The decision from the Cleveland-based Gwin came the same day a federal judge in Louisiana rejected a similar class-action, habeas corpus case brought on behalf of prisoners at a hard-hit federal prison complex in Oakdale, La.  U.S. District Court Judge Terry Doughty said federal statutes and legal precedents foreclosed the court from offering the same relief Gwin granted.

Doughty, an appointee of President Donald Trump, also sounded disinclined to second guess the decisions of the Bureau of Prisons.  “Such a designation and/or classification falls squarely within BOP’s authority and outside the purview of this Court,” Doughty wrote. “To rule otherwise would make this Court a de facto ‘super’ warden of Oakdale.”

Oakdale is suffering from the deadliest Covid-19 outbreak in the federal prison system, with seven inmates having expired.  Federal statistics show 21 prisoners and 22 staffers there confirmed as infected.

April 22, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Another round of recent COVID-influenced grants of federal sentence reductions using § 3582(c)(1)(A)

In this post late last week, I noted ten COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) that showed up on Westlaw.  (I also once again noted my belief that my Westlaw listings surely do not represent all sentence reductions being granted these days).  Though today we are now just mid-week (with Westlaw only showing ruling through April 21), I have spotted enough new grants of sentence reductions that I figured another listing was in order: 

Poulios v. United States, No. 2:09-cr-109, 2020 WL 1922775 (ED Va. Apr. 21, 2020)

United States v. Scparta, No. 18-cr-578 (AJN), 2020 WL 1910481 (SDNY Apr. 20, 2020)

United States v. Atwi, No. 18-20607, 2020 WL 1910152 (ED Mich Apr. 20, 2020)

United States v. Gileno, No. 3:19-cr-161-(VAB)-1, 2020 WL 1916773 (D Conn. Apr. 20, 2020)

United States v. Turner, No. 3:09-cr-00018, 2020 WL 1917833 (WD Va. Apr. 20, 2020)

United States v. Asaro, No. 17-cr-127 (ARR), 2020 WL 1899221 (EDNY Apr. 20, 2020)

United States v. Joling, No. 6:11-cr-60131-AA, 2020 WL 1903280 (D Ore. Apr. 17, 2020) 

United States v. Atkinson, No. 2:19-CR-55 JCM (CWH), 2020 WL 1904585 (D Nev. Apr. 17, 2020) 

Prior recent related posts:

April 22, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"COVID-19 Model Finds Nearly 100,000 More Deaths Than Current Estimates, Due to Failures to Reduce Jails"

The title of this post is the title of this new ACLU report, and here are some excerpts from the first few pages of the intricate 12-page document:

Models projecting total U.S. fatalities to be under 100,000 may be underestimating deaths by almost another 100,000 if we continue to operate jails as usual, based on a new epidemiological study completed in partnership between academic researchers and ACLU Analytics.  That is, deaths could be double the current projections due to the omission of jails from most public models.  Numbers used by the Trump administration largely fail to consider several factors that will explosively increase the loss of life unless drastic reforms are adopted to reduce the nation’s jail populations....

As a result of the constant movement between jails and the broader community, our jails will act as vectors for the COVID-19 pandemic in our communities.  They will become veritable volcanoes for the spread of the virus.  The spread of COVID-19 from jails into the broader community will occur along two vectors that are ignored in typical models:

1. Churn of the jail population — individuals are arrested, sent to jail, potentially exposed to COVID-19, released on their own recognizance, post bail, or are adjudicated not guilty and are subsequently released. Upon release, the virus will spread through their families and communities unless the individual is quarantined.

2. Jail staff — staff come to work each day and are exposed to COVID-19, then return home and infect their families and communities.  This vector applies to jails, prisons, and detention centers.  There are ~420,000 people who work in jails and prisons in the U.S.

Unfortunately, the radical approaches adopted in broader society to reduce other high-density transmission hubs — the closure of schools, the closure of non-essential businesses, and the enactment of stay-at-home orders — have not been emulated with regard to our jails.  Some states have begun to see a reduction in their jail populations, such as Colorado, where there has been a 31 percent reduction, potentially saving ~1,100 lives (25% of projected deaths in the state).  However, all states need to do more, and most states have failed to take any steps to stem the impact of the COVID-19 pandemic in jails and the broader community.

April 22, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, April 21, 2020

FAMM writes to DOJ and BOP to spotlight and lament "ineptness, if not the downright cruelty displayed by the BOP"

FAMM President Kevin Ring today sent this potent three-page letter to US Attorney General William Barr and BOP Director Michael Carvajal.  I recommend the letter in full, and here are some key paragraphs:

Yesterday, we received reports from dozens of people around the country that their loved ones, quarantined with the explicit understanding that they would move to home confinement in two weeks, were instead returned to general population and told that the rules had changed and that they were no longer going home.  At some facilities, family members had already arrived to pick up their loved ones whose quarantine period was ending.  These families were turned away. Many more families received phone calls from crying loved ones informing them that their release date had been revoked because of the abrupt change in rules.

If this were the first time something like this had happened, I might have found it heartbreaking but also a sign that the BOP was still finding its way in dealing with this crisis. But, because we have received identical accounts on multiple occasions over the past couple of weeks, I find myself baffled at the ineptness, if not the downright cruelty displayed by the BOP.  Families with loved ones in BOP facilities are already worried and anxious because of the rising number of COVID-19 infections and deaths.  They are desperate to get their loved ones home, especially those who are medically vulnerable.  To have the promise of early release snatched away under these circumstances is simply inexcusable.  They deserve to know what is happening.

Even before yesterday’s outrageous bait-and-switch, we were growing concerned with the BOP’s response to this crisis.  We have received numerous reports about case managers and counselors giving incorrect information and contradictory answers to people exploring early release options....

Tens of thousands of families across the country are deeply and understandably frightened for the health and safety of their incarcerated loved ones.  The people inside BOP’s facilities are confused, frightened, and vulnerable.  They deserve maximum transparency from the BOP.  Above all, they deserve that you act as Congress intended in the CARES Act: to protect vulnerable people in your care or send them home.

UPDATE: Politico has this new piece providing some more details under the headline "Trump administration reverses prisoner coronavirus release policy, advocates say."  Here are excerpts:

A coronavirus-related policy shift that could have cleared the way for thousands of federal prisoners to be sent home early was abruptly reversed this week, according to friends and family members of inmates.

Prison officials indicated earlier this month that inmates who had served less than half their sentences could still be considered for early release to limit the spread of infection behind bars. However, inmates in various prisons who had been put into prerelease quarantine almost two weeks ago were advised Monday by authorities that the policy had changed, lawyers and associates said. Officials would not waive a requirement that prisoners must have completed 50 percent their sentence to be eligible for early release during the pandemic, the inmates were told.

It was not immediately clear whether the apparent reversal applied across the board or if officials might still waive the policy in the places where the virus has had the most severe impact.

Still, the decision could dash the hopes of several well-known prisoners seeking release from federal custody, including former Trump campaign chairman Paul Manafort and former Trump personal lawyer Michael Cohen. Neither man has served half his sentence....

Bureau of Prisons spokespeople did not respond to requests for comment for this report....

While the initial set of criteria for home confinement included a requirement that inmates had completed half of their sentences, prison officials were told by their superiors on April 9 that rule was expected to be dropped. The decision was cited in a declaration a Bureau of Prisons staffer submitted in connection with a lawsuit challenging the detention of inmates at a federal prison complex in Oakdale, La., that has suffered a serious outbreak of the virus.

That guidance led prisoners at a number of federal facilities nationwide to be put into prerelease quarantine around that date, according to family members of inmates. Some family and friends were making plans to pick up their loved ones this week. Others had purchased air tickets to return home, only to be told Monday that the expected releases had been scuttled.

“They just posted a new BOP Bulletin a few minutes ago, reversing the Barr decision and requiring that those released to home confinement must have served 50% of their sentence,” Stephen Donaldson, son of an inmate at a prison in Georgia, wrote in an email to POLITICO. “I was hoping to have my father home. He tells me a number of other inmates had started the quarantine pre release and then were told of the reversal.”

April 21, 2020 in Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Which states are doing best (or doing worst) responding to COVID incarceration challenges?

The question in the title of this post is prompted by this new Baltimore Sun article headlined "Maryland said it has released 2,000 inmates from prisons and jails to slow spread of the coronavirus."  Here are excerpts:

The Maryland Department of Public Safety and Correctional Services announced Monday that it has released 2,000 inmates from its jails, prisons and other detention facilities over the past five weeks in an effort to reduce the spread of the coronavirus behind bars.

The announcement comes one day after Maryland Gov. Larry Hogan signed an executive order designed to speed up the release of at least 700 men and women from correctional facilities across the state.  The order speeds up processing of inmates already eligible to be released within the next four months and accelerates the processing of inmates eligible for home detention.

The corrections department offered no details about when the releases began, how many had been freed in the past week or why the department remained quiet amid an aggressive push from local leaders in Baltimore, public health officials and prisoner advocates calling on Hogan to reduce crowding in the state’s prisons.  Department spokesperson Mark Vernarelli said in a statement that the releases were made possible by “leveraging the acceleration and placements" into pretrial supervision and releasing others during the booking process. The department also accelerated processing releases through the Parole Commission and Home Detention Placement program.

As of Friday — the last day a figure was reported — Maryland said it had 136 cases of COVID-19 in the correctional system, with the Jessup Correctional Institution having 40, the highest number in the system. The figure includes inmates, correctional officers and contractual employees. One inmate in his 60s has died, according to the department.

Maryland Court of Appeals Chief Judge Mary Ellen Barbera last week encouraged the release of inmates who were most susceptible to the virus and who pose no threat to public safety.  Baltimore City State’s Attorney Marilyn Mosby had been leading the charge for early release of large numbers of prisoners....  Nearly 200 doctors, professors and staff at Johns Hopkins University sent a similar request to Hogan on March 23, saying the governor’s “inaction on this issue is putting the lives of Marylanders at risk."

This Prison Policy Initiative page indicates that Maryland has roughly 30,000 persons locked up in its state and local facilities, so a release of 2,000 persons would still only involve shrinking its incarcerated population by less than 7%.  And, notably, this article suggests many getting released were already on their way out the (barred) door anyway.  Nevertheless, I am still inclined to give the Free State some credit for living up to its nickname in this remarkable new era.

I know a number of other states have been trying in various way to "get ahead" of COVID prison problems.  For example, as noted here, a few weeks ago Pennsylvania and New Jersey governors issued executive orders to enable temporary prison releases.  This new local article reports on Iowa's plans to release some prisoners to minimize spread of COVID-19; this article from last week reports on Washington state's plan to release nearly 1,000 nonviolent prison inmates early to limit COVID-19 spread.  The UCLA Covid-19 Behind Bars Data Project also has prison release data indicating sizable releases in California, Illinois and Kentucky, and I am sure there are more proactive states out there.

At the same time, it is clear that a number of states have been quite slow to respond to COVID incarceration challenges.  I am not going to name names in this post, but I welcome and encourage others doing so in the comments.  I also wonder if anyone thinks it might be useful to try to do some kind of "ranking" of states in this arena.

April 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Monday, April 20, 2020

Updating "official" COVID data from federal and Ohio prisons

BOP's COVID-19 Update page, as of April 20, has this report of the latest data on "COVID -19 Cases":

The BOP has 143,705 federal inmates in BOP-managed institutions and 10,225 in community-based facilities.  The BOP staff complement is approximately 36,000.  As of 04/20/2020, there are 497 federal inmates and 319 BOP staff who have confirmed positive test results for COVID-19 nationwide.  Currently, 205 inmates and 33 staff have recovered.  There have been 22 federal inmate deaths and 0 BOP staff member deaths attributed to COVID-19 disease....

Since the release of the Attorney General's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 1,280 inmates on home confinement.

I have previously expressed concern that these "official" numbers are not a full reflection of the "facts on the ground," and I find especially notable the claim of "0 BOP staff member deaths" given media reports of a confirmed staff death from COVID.  Moverover, whatever the particulars of the BOP accounting above, the extent of the coronavirus spread would only be fully known if we had some details on just how many prisoners and staffers have been tested for the virus.

Helpfully, Ohio is now providing daily updates on COVID-19 Inmate Testing that includes both positive and negative results.  The accounting as of April 20, 2020 is available here, and it is telling and frightening: Positive 3312; Negative 1035.  In other words, among the (large number of) tested prisoners in Ohio, over 75% have tested positive for COVID-19.  Put another way, there are more cofirmed COVID-positive-tested persons in Ohio prisons than the entire total of COVID cases so far confirmed in 22 distinct states (according to Worldometer) and more than in countries ranging from Argentina to Greece to new Zealand to South Africa.

April 20, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

US Senator Kennedy writes to AG Barr to urge him to "deny any request for early release" to certain notable fraudsters

As reported in this Hill piece, "Sen. John Kennedy (R-La.) called for Ponzi scheme architects who targeted the elderly, such as Bernie Madoff or Robert Allen Stanford, to remain in jail as some prisoners are being released because of coronavirus fears." Here is more:

In a letter to Attorney General William Barr, Kennedy requested the Federal Bureau of Prisons consider the “financial, emotional and physical devastation” prisoners have caused before permitting their early release. The attorney general had instructed the bureau to consider releasing nonviolent criminals who are at a higher risk of contracting the virus because of age or pre-existing medical conditions. “Releasing either of these individuals, or anyone similarly situated, would be an affront to those affected by their evil schemes, and a complete failure in the administration of justice,” Kennedy said in his letter.

Allen Stanford was convicted in 2012 of 13 felony counts and sentenced to 110 years for running a scheme that impacted 18,000 people. Kennedy wrote that he expects the 70-year-old to apply for early release. Madoff, 81, who ran an even larger investment-fraud scheme than Allen Stanford, has pre-existing health issues and has already requested early release.

“Our efforts should be focused on protecting those who protected us; our parents, grandparents, and military veterans who led crime-free lives,” Kennedy added. “Criminals such as Stanford and Madoff who preyed on the elderly should be the last ones to benefit from the change in circumstances COVID-19 has caused.”

The Louisiana senator also requested the Federal Bureau of Prisons publish information about inmates who are released, including their name, last known address, the prison they were released from, their age and their offense. He also called on state attorneys general to publish the same information.

The two-page letter from Senator Kennedy to AG Barr is available at this link. I find it quite interesting that (a) no other Senators signed on this this letter (though I do not know if others were asked, and (b) that Senator Kennedy decided to focus on this letter on big-time fraudsters like Madoff and Stanford without making mention of any other types of offenders like terrorists or murderers.

April 20, 2020 in Impact of the coronavirus on criminal justice, Offense Characteristics, Prisons and prisoners, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Sunday, April 19, 2020

Ohio, by testing lots of prisoners, determines that lots and lots and lots of Ohio prisoners have COVID

Just ten days ago, I noted in this post the New York Times piece calling the Cook County jail the "Top U.S. Hot Spot" with 238 inmates and 115 staff members having tested positive for COVID.  Today, because Ohio has made an effort to test all inmates in a few of its prisons, we have a new "hot spot" winner in another corrections facility: the Marion Correctional Institution now has 109 staff and 1828 inmates(!) who have tested positive. The latest official Ohio data from all prisons is chilling, and here are excerpts from "this local article headlined "Almost one in four Ohio coronavirus cases now come from the state’s prisons":

While the DeWine administration has hailed the effectiveness of its social-distancing restrictions to “flatten the curve” of coronavirus infections in Ohio, the disease is escalating among one group of Ohioans who can’t stay at home: prison inmates.

As of late Sunday afternoon, 2,400 of the 11,602 confirmed coronavirus cases in Ohio have been found among inmates in 13 of the state’s 28 prison facilities, including six inmate deaths.  That’s up from 1,441 confirmed cases on Saturday.  Add in the 244 state corrections staffers who have tested positive, and that means about one in four coronavirus cases in Ohio (about 23 percent, to be exact) come from a state prison.

While that ratio is a little less shocking considering that there is wider testing among inmates than the general population, it’s still sobering given that Ohio’s 49,000 or so prisoners make up 0.4 percent of the state’s population of 11.75 million.

Those figures do not include the 88 confirmed cases (38 staff and 50 inmates, six inmates dead) at Federal Correctional Institution Elkton, the lone federal prison in Ohio.  They also don’t include county jail inmate or people behind bars at any level in Ohio who are sick but haven’t been tested.

The problem is particularly dire at the Marion Correctional Institution, where 1,828 inmates have tested positive for the virus as of Sunday.  In addition, 109 staffers at the Marion prison are infected -- one of whom has died....

State officials are moving to test every inmate at the three prisons hardest hit by the disease: Marion, Pickaway Correctional Institution, and the Franklin Medical Center (the state’s prison hospital in Columbus).  The governor also started the process of releasing about 200 inmates who are at a high risk of dying from the virus or other inmates nearing the end of their sentences.

DeWine spokesman Dan Tierney noted that the first prison to report coronavirus cases was the federal Elkton prison, not a state facility. He also said Ohio, as of Friday, was the only state to conduct blanket coronavirus testing at prisons.  “The measures that were put in place delayed the arrival of coronavirus at these facilities,” Tierney said Sunday.  “Now that it’s there, we have to aggressively monitor the situation (and) aggressively deal with this situation -- and that is what we’re doing.”

Critics, including the American Civil Liberties Union of Ohio, have repeatedly called on the governor to release a far greater number of people from state prisons, which have been overcrowded for years....

So many Ohio prison staffers have become ill at Marion that members of the state’s National Guard and State Highway Patrol are taking over some “mission criticial” tasks.  Guard members are also providing medical services at Pickaway.  Sally Meckling, a spokeswoman for the Ohio Civil Service Employees Association, said the Marion, Pickaway, and Franklin Medical Center facilities are “severely understaffed” because of workers out sick.  

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

Ever more disconcerting news and notes from federal prisons' struggle with COVID

It is encouraging that the BOP's COVID-19 Update page, as of midday April 19, is reporting that in the last four weeks "the BOP has placed an additional 1,279 inmates on home confinement."  But that is the only encouraging news I could find about the federal prison system this weekend amidst a whole of worrisome headlines and stories:

I am tempted to call all of these pieces "must-reads," but I would especially encourage everyone to make the time to review the last piece above. It is a lengthy piece from the New York Times described as an "oral history of the first fatal outbreak in the federal prison system, in Oakdale, La."  Much of the reporting is both terrifying and saddening, and here is just a small sample: 

Don Cain, inmate at F.C.I. Oakdale I, via email: I will tell you how I heard the virus got in.  I was told that a staff member from education bragged about going to New York City.  The first death of an inmate was a guy who was in contact with that staff member. I heard that staff member was supposedly in critical condition in the hospital on a ventilator.

Wife of an F.C.C. Oakdale correctional officer, via Facebook Messenger: There’s also a rumor saying an inmate came off the bus as a new intake, and he brought it in.

Mayor Paul: As of last week [the week of March 30], they were still bringing inmates in from other facilities.  It took them about a week to stop those buses.  There was a lot of the ball being passed around with, “It’s not my responsibility, it’s the marshals’ responsibility, it’s not our responsibility, it’s somebody else’s.”  Well, whose responsibility is it to stop this?  I mean, I love the B.O.P. being here and everything, but you think you would have taken some precaution 10 or 14 days earlier to be halfway ready for this thing, especially when you got about 2,000 inmates and about 500 employees.

Correctional Officer 2: I know there was a conversation with the warden.  It was myself and one of the case managers that I used to work with — who tested positive, by the way, he’s been out for a week, week and a half — he questioned the warden and said, “What do you think about this coronavirus, do you think we’re going to have a problem?” And he said: “Oh, no, because we live in the South, and it’s warm here. We won’t have any problems.”  That was his exact words.  Nobody gave us new direction on what we should be doing, how we should be preparing, what to look for, anything....

Ronald Morris [correctional officer, president of the American Federation of Government Employees Local 1007]: You got the director of the B.O.P. saying they’ve been preparing since January, and they have a national stockpile of supplies.  Well, where the hell are those supplies?  Why can’t we get some?  They did send us some national-stockpile N95 masks.  Want to know how many? Two hundred! Two hundred!  They couldn’t afford to give us any more.  They know that we’re just the first institution that’s going to be dealing with this, so they need to hold it to ration it out to other institutions because they know their national stockpile is insufficient to begin with.

Heidi Burakiewicz, lead attorney on the federal class-action lawsuit: What I am constantly hearing from workers at Oakdale is that they’re looking for guidance, and they’re getting no guidance or contradictory guidance, or it’s constantly changing.  I’m outraged when I hear people tell me: “I rode in a van with a sick inmate, and I asked for a mask, and they said: No, I didn’t need it.”  Or: “I sat in a room in the hospital with a sick inmate, and I didn’t even have a mask on.”  Or: “It was only a surgical mask.”  That makes me angry.  That was preventable.  Somebody in this agency needs to take responsibility and start protecting these people.

April 19, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

With data showing significant "overall decline in crime," headline still blares "Some Crimes Are Spiking"

800x-1Among the virtues of blogging for me is a deeper appreciation for the responsibilities and the challenges of effective journalism.  And these days especially, I am disinclined to attack the press.  But I just cannot help but saying "AARRGGHH" in this space while reporting on this notable new Bloomberg piece about crime in cities in the early COVID era. 

The piece details that, generally speaking, crime is down in major cities.  But you would not get that from the piece's headline, which now blares "Some Crimes Are Spiking in America’s Major Cities."  Aggravating headline aside, the piece is an interesting review of original data, and here are excerpts:

Amid empty streets and shuttered shops, crime rates in some of the biggest U.S. cities have dropped -- with a few exceptions. 

Car thefts and store robberies are spiking in some municipalities even as crime overall -- especially violent offenses -- dropped in 10 of the 20 most populated cities, more than halving in San Francisco alone. according to a Bloomberg News analysis of data from 10 major cities.

“It’s just a reflection of reduced opportunities for these kind of events,” said Daniel Nagin, a criminologist and professor of public policy at the H.J. Heinz School of Public Policy and Management at Carnegie Mellon University in Pittsburgh. “In the case of murders, these often occur in public places in bars and things like that. With those kinds of activities shut down there’s less social interaction.”

Car theft is one exception, at least in some places. In New York it’s surging, up 49% for the week ended April 12 as compared to the same period a year earlier. It's risen 53% over the past month and more than 63% year to date. Police have increased patrols in areas of the city where car thefts are common. Car theft was the only major crime to show an increase in Los Angeles, rising 11.3% for the 28 days ending April 11 from the previous period.

Burglaries are also on the rise in New York, up 26% year-to-date as compared to the same period in 2019. In the week ended April 12, they more than doubled in the southern half of Manhattan, where many stores are now unoccupied. Burglaries jumped almost 34% in Denver in March amid a growing number of break-ins at marijuana dispensaries. In Philadelphia, burglaries were down 6.7% overall, with residential break-ins falling 25% as more people stay home, but unoccupied businesses were hit hard, with commercial burglary rising 71%....

Each of the 10 major cities that provided data are showing a decline in rapes and sexual assaults, with San Francisco posting the biggest drop -- more than 50% -- as compared to the same period a year earlier. Kubrin said, however, that these numbers aren't a reliable indicator because the crime is notoriously under-reported, in part because of reluctance by victims to go to the police.

For the most part, murders are on the decline, and in cities showing a rise the numbers are low to begin with. A 25% increase in Austin, for example, is the result of one additional homicide, with the number rising from four to five.... Most cities are showing a decline in assaults, following the trend in other violent-crimes categories.

Prior related posts:

April 19, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

Advocates pushing back on SBA disqualifying people with any record from business relief

Last week in this post, I noted the effective coverage by Collateral Consequences Resource Center of the U.S. Small Business Administration disqualifying people for small business loans based on any past criminal record during the COVID-19 pandemic.   Now CCRC has this new post, "Bipartisan coalition calls on SBA to roll back record-related restrictions in COVID-19 small business loan programs," and it starts this way:

On April 17 a diverse bipartisan group of civil rights, advocacy, and business organizations, including CCRC, sent a letter to Treasury Secretary Mnuchin and SBA Administrator Carranza expressing concern over the restrictions imposed by the SBA on people with a record of arrest or conviction under two programs recently authorized by Congress in response to the COVID-19 crisis.  The letter points out that these unwarranted restrictions on loan programs intended to aid small businesses and non-profits will have a significant and detrimental impact in communities across the country, and a particularly harsh effect on minority business owners and employees who are disproportionately affected by the criminal legal system as a result of institutional discrimination.  It urges that federal relief be made equitably accessible to all who need it.

The letter, which is available here, includes an appendix detailing how the new rules and policies governing the Payroll Protection Program are more restrictive than those which normally are applied by the SBA.

Prior related post:

April 19, 2020 in Collateral consequences, Impact of the coronavirus on criminal justice, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Saturday, April 18, 2020

Will Prez Trump use his clemency pen to "rescue" his pal Roger Stone from federal prison?

As this Hill piece details, Prez Trump has used his Twitter fingers to call out the last bad legal development for his long-time pal Roger Stone:

President Trump late Friday denounced a judge's decision to deny Roger Stone a new trial after lawyers for the longtime GOP operative and former Trump campaign adviser raised concerns about one juror's political leanings.

“This is a disgraceful situation!” Trump wrote on Twitter, sharing a tweet blasting the decision and calling for a pardon for Stone.

Stone was found guilty in 2019 of obstructing a congressional probe into Russia's election interference and of witness tampering. He was sentenced in February to more than three years in prison but has vociferously maintained his innocence.

His lawyers had asked for a new trial after raising concerns about one juror's political leanings, prompting Trump to allege that the trial had been rigged against his former campaign adviser.  U.S. District Judge Amy Berman Jackson, an Obama appointee, ruled this week that Stone’s lawyers did not convincingly argue that any bias by the juror in question influenced the verdict....

In his first television interview since the lifting of a 16-month gag order, Stone told Fox News’s Tucker Carlson on Friday night that his prison sentence amounts to a “death sentence.”

“So at this point, the judge has ordered me to surrender in two weeks and at 67 years old with some underlying health problems, including a history of asthma, I believe with the coronavirus it is essentially a death sentence,” he said, adding that he is hoping for a pardon from Trump.

After Roger Stone's sentencing two months ago, I predicted that Prez Trump would be inclined to hold back on any possible clemency action at least until Stone's new trial motion was resolved and Stone faced the prospect of heading to prison.  That time would seem to be now, and so I wonder if Prez Trump may now be inclined to follow-up on his tweet by taking out his clemency pen. 

It bears recalling that Prez Trump last month, as noted in this post, said his administration was "looking at" using executive authority to free elderly, nonviolent offenders from federal prisons in response to the coronavirus pandemic.  From a press report on the comment:  "We have been asked about that and we're going to take a look at it.  It's a bit of a problem," Trump said,  "We're talking about totally nonviolent prisoners, we are actually looking at that, yes."

Notably, Roger Stone would certainly qualify as a elderly, nonviolent offender, even a "totally nonviolent prisoner."  I am now wondering if Prez Trump might be thinking now that he could deliver on his prior talk by granting clemency to a number of federal prisoners with Roger Stone's name just happening to get tucked into the list. 

Prior related posts:

April 18, 2020 in Celebrity sentencings, Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

As Ohio and Tennessee delay more executions, might "incremental reopening" in Texas lead to resumption of lethal injections?

The question in title of this post is prompted by news from three states this week:

From Ohio: "Gov. Mike DeWine delays 3 more Ohio executions amid drug shortage"

From Tennessee: "Tennessee Supreme Court delays upcoming execution, citing COVID-19"

From Texas: "Is Texas the first state to roll out a timeline to begin reopening?"

Here is an excerpt from the last of these pieces:

In Texas, Govt. Abbott directed retail stores to begin reopening April 24 and instead deliver products to customers’ cars and homes.  He also ordered state parks to reopen by Monday, directing residents to wear face coverings, keep a distance and stay in groups of five people or less.  And, beginning April 22 restrictions on elective medical procedures will be loosened.  Abbott said the process of reopening the state will happen gradually and will be guided by medical experts.

Instead of kicking off a full restart, the Texas governor announced that a group of medical and economic experts will guide him through a series of incremental steps aimed at slowly reopening the state’s economy.

This AP piece notes that the four executions which Texas had scheduled for March and April were delayed because of coronavirus concerns.  But this DPIC page indicates that Texas has four other executions scheduled for May through July, and the delayed executions were mostly put on hold for 60 days.  If the incremental steps to reopen Texas include restarting its death chamber, the state could have as many as eight executions before the end of the summer (and, if they did, Texas would waste to my speculation that the US could end up in 2020 with its lowest number of executions in nearly four decades).

For various reasons, I somewhat doubt that Texas will be able to get its machinery of death up and running fully in the coming months.  But when there is a will to execute, Texas often finds a way.  So the uncertain reopening of Lone Star lethal injection plans provides another unfolding story at the intersection of COVID and criminal justice.

Some prior related capital COVID posts:

April 18, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, April 17, 2020

Closing a long week with a long list of articles and commentaries highlighting how COVID keeps coursing through incarceration nation

Every week seem extra long these days, and blah weather had me feeling extra blah during this extra long work week.  But I know I am quite lucky to endure these feelings and all our uncertainty in relative comfort and safety, especially when compared to the millions behind bars in the United States.  I will close the long work week with a round up of recent stories and commentaries as we continue experiencing the fall-out of coronavirus coming to incarceration nation:

Some news from various jurisdictions:

Alabama: "'It's horrible': how the US deep south's prisons exacerbate the pandemic"

California: "Chino men’s prison reports 67 cases of coronavirus, 3 confirmed at women’s prison"

Federal: "Interviewed in hiding, escaped NC inmate says he fled coronavirus ‘death sentence’"

Florida: "Two inmates at NW Florida prison die of COVID-19. State officials kept deaths secret"

Gerorgia: "COVID-19 Cases and Fatalities Rise in Georgia Prisons"

Illinois: "‘They Should Be Letting Guys Go’: Six Illinois Prisoners Dead From COVID-19"

Indiana: "COVID-19 spike at Westville prison; 87 inmates test positive"

Louisiana; "Louisiana Prisoners Held In Notorious Isolation Unit Are Facing A ‘Slow-Moving Disaster’"

Maryland: "Senators Van Hollen and Cardin urge Gov. Hogan to take decisive action as 136 coronavirus cases hit Maryland prisons"

Massachusetts: "More Than 150 Positive COVID-19 Cases Reported Among Prisoners, Staff Inside Mass. Jails And Prisons"

Michigan: "The High COVID-19 Infection Rate At This Michigan Prison Has Inmates Fearing For Their Health"

Ohio: "489 Ohio state inmates, 184 jail staff members test positive for COVID-19"

South Dakota: "S.D. Department of Corrections won't say how many inmates are tested for coronavirus"

Texas: "121 inmates with COVID-19 transferred to local prisons"


Some commentary and advocacy from various individuals:

Cara Drinan, "Clemency in a time of COVID-19"

Aya Gruber & Benjamin Levin, "Colorado Supreme Court Fails To Protect State Residents As Coronavirus Grows ‘Exponentially’ In Jails"

Lacino Hamilton, "Where I’m Incarcerated, People With COVID-19 Are Warehoused in a Gym"

Oliver Hinds, "Emptying Prisons To Prevent The Spread Of Coronavirus Will Save Lives On The Outside, Too"

Sarah Lustbader, "'How Can I Keep My Family Safe?': Worrying for My Clients on Rikers"

Dawn Wolfe, "Advocates Say Ohio’s Governor Is Failing To Protect Prisoners From Coronavirus"

Multiple authors, "Release many more people from prison now, Gov. Cuomo"

Multiple authors, "Prison should not be a COVID-19 death sentence"

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

"When Every Sentence is a Possible Death Sentence: Public Defenders Speak From the Front Lines About COVID-19"

The title of this post is the title of this notable new report authored by Irene Oritseweyinmi Joe and Ben Miller for The Justice Collaborative.  Here is the report's executive summary:

Public defenders are tasked with the unenviable job of representing some of the most vulnerable people in society when they are accused of crimes.  At the same time, public defenders receive little thanks for protecting the marginalized and instead face insurmountable odds with insufficient resources and limited public support.  Premal Dharia, founder and director of the Defender Impact Initiative, said, “Public defenders are on the front lines of the devastation wrought by our system of mass criminalization and they are guided by an unwavering dedication to the very people being devastated.”

As the coronavirus ravages communities, courtrooms, jails, and prisons, public defenders are now indispensable to confronting the epidemic.  While not medical professionals, public defenders are the front line, often the only line, between their clients and incarceration.  Since jails and prisons have become hotbeds of COVID-19, with infection rates exponentially larger than the general population, public defenders have the added task of not just protecting their clients’ rights, but also, in many cases, their lives.  Dan Engelberg, the chief of the trial division for the Orleans Parish Public Defender in Louisiana, aptly characterized the efforts of public defenders nationwide over the last few weeks as “heroic and tireless” as they strive to protect the health, humanity, and lives of their clients.

The Justice Collaborative Institute asked nearly 200 public defenders from across the country how the COVID-19 pandemic has impacted their work and personal lives. The responses are revealing.  Nearly half, as of April 2, 2020, reported clients incarcerated in correctional facilities with at least one confirmed case of COVID-19. Over 80% did not think their local court systems were doing enough to protect the health and safety of their clients.  (See Appendix for results from the questionnaire).  Their concerns went beyond the spread of disease.  Public defenders expressed anger over the perceived lack of empathy for their clients’ health, frustration with the many officials who treat their clients’ rights as disposable, and mental distress over the impact the virus is having on their clients, their loved ones, and themselves.

Taken together, their responses form a powerful argument in support of policies, also popular among voters, to dramatically and urgently reduce jail and prison populations in response to COVID-19.  The frontline accounts of public defenders reveal that far too many people in positions of authority continue to undermine public health and safety by processing far too many people daily into the criminal legal system, while at the same time failing to protect the millions of people behind bars.  By doing so, they continue to place the lives of millions — people incarcerated at correctional facilities, people who go to work there, and people who live in surrounding communities — at grave risk.

Law enforcement, prosecutors, judges, and politicians should work with public defenders and urgently adopt policies to limit arrests, expand the use of cite and release, end cash bail, dismiss cases instead of needlessly dragging them out, and release as many people as possible from incarceration who do not reasonably pose a risk to public safety. Such steps can all be taken right now and are options public defenders across the country are advocating for, placing their personal health at risk in many cases, to do so.

April 17, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Lots of new resources from Fair and Just Prosecution on "COVID-19 and Mass Incarceration"

I just saw that the folks at Fair and Just Prosecution have this webpage with helpful updated resources for COVID criminal justice responses. Here is the overview text and links to four documents of note:

The COVID-19 pandemic presents an unprecedented global challenge that is impacting the daily lives of all Americans.  The pandemic’s dire consequences — including infection, illness and the tragic deaths of thousands — will disproportionately affect vulnerable individuals behind bars.  Rapid action is critical to save the lives of people in correctional facilities and immigration detention.

FJP’s COVID-19 and Mass Incarceration resources aim to identify innovative thinking and best practices for elected prosecutors and other criminal justice leaders responding to COVID-19, as well as the challenges they face.  A prosecutor’s obligation to keep the community safe extends behind prison gates and with this fast-moving virus, prosecutors and other leaders must act now to protect the health and safety of those who are incarcerated and the entire community.

COVID-19 and Mass Incarceration: Crisis at a Glance

COVID-19 and Mass Incarceration: Innovations and Solutions at a Glance

COVID-19 and Mass Incarceration: Voices from Inside

COVID-19 and Mass Incarceration: Key Resources

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

Additional COVID-influenced grants of federal sentence reductions using § 3582(c)(1)(A)

I am pleased to be able to report that I have found this week on Westlaw a good number of COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).  I just have enough time this morning to list all the rulings here.

Samy v. United States, No. No. 16-20610-1, 2020 WL 1888842 (ED Mich Apr. 16, 2020)

United States v. Hammond, No. 02-294 (BAH), 2020 WL 1891980 (DDC Apr. 16, 2020)

United States v. Coker, No. 3:14-CR-085, 2020 WL 1877800 (ED Tenn. Apr. 15, 2020)

United States v. Cosgrove, No. CR15-230-RSM, 2020 WL 1875509 (WD Wash. Apr. 15, 2020)

United States v. Kataev, No. 16 Cr. 763-05 (LGS) 2020 WL 1862685 (SDNY Apr. 14, 2020) 

United States v. Wen, No. 6:17-CR-06173, 2020 WL 1820520 (WDNY Apr. 13, 2020) 

United States v. Smith, No. 12 Cr. 133 (JFK), 2020 WL 1849748 (SDNY Apr. 13, 2020) 

United States v Ben-Yhwh, No. 15-00830 LEK, 2020 WL 1874125 (D. Hawaii Apr. 13, 2020)

United States v. Tran, No. CR 08-00197-DOC, 2020 WL 1820520 (CD Cal. Apr. 10, 2020)

United States v. Burrill, No. 17-cr-00491-RS-1, 2020 WL 1846788 (ND Cal. Apr. 10, 2020)

As I have said before, I am fairly confident that this list does not represent all, and I suspect it does not even capture most, of the sentence reductions that have been granted by federal district courts over the past week.  Readers are encouraged to use the comments or to send me emails to supplement this list as new ruling are handed down or become available.

Prior recent related posts:

UPDATE: I noticed this afternoon a couple of useful press pieces discussing  some of this litigation as it is playing out in federal courts:

From Forbes, "Federal Prosecutors Across The Country Oppose Many Common Sense Motions For Compassionate Release"

From Law360, "Inmates Seeking COVID-19 Release Face Uneven Legal Terrain"

April 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 (0)

Thursday, April 16, 2020

Michael Cohen reportedly among those being moved by feds from prison to home confinement

This new CNN piece reports that the "federal Bureau of Prisons has notified Michael Cohen, President Donald Trump's former personal attorney, that he will be released early from prison due to the coronavirus pandemic, according to people familiar with the matter and his lawyer."  Here is more:

Cohen is serving a three-year sentence at the federal prison camp in Otisville, NY, where 14 inmates and seven staff members at the complex have tested positive for the virus. Cohen was scheduled for release in November 2021, but he will be allowed to serve the remainder of his sentence from home confinement, the people said.  He will have to undergo a 14-day quarantine at the prison camp before he is released.

Cohen was notified on Thursday of his pending release, and his lawyer, Roger Adler, confirmed it to CNN.  His pending release comes as the Bureau of Prisons, which has been under pressure for its early handling of the virus at its facilities, has been thinning out its prison populations by releasing some nonviolent and medically vulnerable inmates to home confinement or furloughing their sentences in response to the pandemic....

Cohen's pending release comes after a federal judge rejected his request last month. At the time Cohen accused the Justice Department of not treating him fairly and later added his concerns about the virus.

Cohen pleaded guilty in 2018 to tax fraud, campaign finance violations and lying to Congress. He admitted to helping facilitate hush money payments to two women who alleged past affairs with Trump. Trump has denied having affairs with the women. When pleading guilty, Cohen implicated Trump, telling a federal judge that he had made the payments "in coordination with and at the direction of" Trump, who prosecutors identified in court filings as "Individual 1."

I had heard some talk today that a whole lot of folks were to be moved out of the federal prison camp in Otisville, and this Cohen story suggests as much.  BOP's COVID-19 Update page reports that, as of April 16, "the BOP has placed an additional 1,198 inmates on home confinement."  

Prior Michael Cohen posts:

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

Brennan Center and other reform group urge Attorney General Barr to do more to "stop the spread of the novel coronavirus behind bars"

I just saw this new letter addressed to Attorney General William Barr coming from the Brennan Center for Justice and other leading criminal justice reform groups on the topic of "Expanding BOP’s Response to the Novel Coronavirus, and Helping States Safely Reduce their Prison Populations." Here is how the seven-page letter gets started:

We write to ask that the Department of Justice (“DOJ”) take a leadership role in helping the nation’s criminal justice systems adapt to the challenges presented by the novel coronavirus.

America’s prisons and jails present unique health dangers, and are especially vulnerable to the spread of infectious disease — problems that the outbreak of the novel coronavirus throw into sharp relief.  Absent additional interventions, COVID-19 will continue spreading through incarcerated populations, and our nation’s correctional officers and staff, at an alarming rate.

We thank you for the steps you have taken to respond to this crisis, including expanding the use of home confinement by the Bureau of Prisons (“BOP”).  As you acknowledge, the BOP has a “profound obligation to protect the health and safety of all inmates” requires nothing less.  Yet more must be done to stop the spread of the novel coronavirus behind bars.  Even if the BOP’s recent lockdown slows transmission among people who remain imprisoned in its facilities, it will also stretch tensions behind bars even further. And, correctional administrators nationwide face similar pressures.

We therefore urge you to take two important steps.  First, we ask that you expand the use of home confinement even further, as detailed below.

Second, the DOJ can encourage states to respond more proactively to this crisis.  We therefore ask that you circulate a “Dear Colleague” letter among state criminal justice stakeholders — including governors, prosecutors, judges, correctional administrators, and public defenders — urging them to work together to adopt policies to limit the virus’s impact.  Those policies should include (1) releasing people from prison who do not pose a public safety threat, thus decreasing population density and viral transmission risk; and (2) improving health behind bars by making hygiene products and medical services broadly available.  This guidance would underscore the federal government’s commitment to zealously confronting a threat to the wellbeing of imprisoned people and those who work in correctional institutions nationwide.

We explain both proposals below. Thank you for your attention to this important matter.

April 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

"Recommendations for Rapid Release and Reentry During the COVID-19 Pandemic"

The title of this post is the title of this short new report from NYU's Marron Institute of Urban Management focused on early releases and community supervision. Here is how it gets started:

People who live and work in jails, prisons, and detention facilities are at elevated risk for SARSCoV-2 infection, due to close living environments and the high prevalence of pre-existing health conditions.  Agencies will be forced, through executive direction, litigation, or necessity (due to rising infections, lack of staff, or medical capacity) to release people in their custody early and to fast-track their usual reentry processes and services.  Jails and prisons are beginning to release people.  They will need to release many thousands more, or many may die.

The Litmus program at the NYU Marron Institute was working on early release from prison prior to COVID-19.  In December 2019, the team completed a three-year pilot project (called Graduated Reintegration) that entailed releasing prisoners six months prior to their earned-release date, paired with substantial community supports, in collaboration with the Illinois Department of Corrections.  A great deal was learned about early release from prison from this work, including the mechanisms that can allow early release and the challenges reentrants face.  Many states will need to consider early release to reduce the density of their prison populations to lower the risk of COVID-19 spread, which makes the NYU Marron team’s experience of doing this in practice highly relevant.

Since early March 2020, Litmus has been working with justice agencies nationwide to learn how corrections (jails and prisons) and community corrections (probation and parole) are responding to COVID-19.  Over a four-week period, the team hosted five protocol-sharing sessions (including over 100 criminal justice system practitioners, from over twenty states).  These sessions have yielded early insights into what agencies are doing (and not doing!) to curb the spread among these vulnerable groups—justice-involved people and public-safety officers, court officers, and mental health/drug treatment providers.

Prisoners who are released will face unprecedented challenges presented by COVID-19, including obtaining necessities such as food and shelter, accessing healthcare and behavioral healthcare, and entering a job market with historically high unemployment.  Scattershot approaches to releasing prisoners, without substantial accompanying supports, will diminish prospects for succeeding in the community and may undermine future criminal justice reform efforts.

The assumptions and recommendations outlined below draw on the lessons we learned from our early-release pilot in Illinois and from practitioners who have attended our protocol-sharing sessions.  They provide guidance to agencies supporting rapid release from incarceration and community reentry in response to COVID-19 and, in the foreseeable future, facing budget shortfall.

April 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Troubling stories continuing to emerge from federal prisons

BOP's COVID-19 Update page reports that, as of April 15, "there are 449 federal inmates and 280 BOP staff who have confirmed positive test results for COVID-19 nationwide ... [and] 16 federal inmate deaths."  If these numbers alone are not troublesome enough, these recent stories make the current reality of federal prisons seem even more grim and worrisome:

From AP, "Justice Dept. watchdog to inspect prisons amid virus spread"

From Cleveland Scene, "Three More Inmates Have Died of COVID-19 This Week at Elkton Federal Prison Since ACLU Asked Courts for Help"

From Forbes, "Federal Bureau Of Prisons Institutions Not Showing Any Signs Of 'Flattening Curve'"

From The Intercept, "As Virus Spreads In Federal Prisons, People Inside Describe Chaos, While Families Are Left In The Dark"

From KATV, "'It's like Mad Max in here': Arkansas inmate says conditions woeful amid outbreak"

From Law360, "Mass. Federal Prison A COVID-19 'Powder Keg,' Suit Claims"

If one is eager to find any silver lining within these dark clouds, BOP is reporting that over a thousand federal prisoners have been moved into home confinement over the last three weeks: "Since the release of the Attorney General's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 1119 inmates on home confinement."  In addition, a Politico story provides some not awful news, "Federal prisons make inmate calling, video visits free during pandemic" (although I find it disconcerting that only amidst a pandemic can prisoners communicate with their family without being subject to fees they likely cannot reasonably afford).

UPDATEBecause of the move of many persons into home confinement and also likely because of fewer people starting their federal prison terms, the federal prison population as reported here by BOP is now on April 16, 2020 down to "172,349 Total Federal Inmates."  Last week, as discussed in this post, BOP was reporting the number was 173,686 inmates.   (I predicted in my prior post that we might get below 170,000 before the end of the month, but I am less sure upon hearing addition reports about the dynamics of the home confinement process.)

April 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (3)

Tuesday, April 14, 2020

"Governors Must Use Clemency Powers to Slow the Pandemic"

The title of this post is the title of this new memorandum from Courtney Oliva and Ben Notterman. Here is how it gets started:

Nearly 3 in 4 Americans have now been ordered to stay home and remain indoors, while many states have ordered non-essential businesses to shutter.  These steps may seem drastic, but they are being taken in order to safeguard public health during the COVID-19 pandemic.  Government actors who are truly serious about protecting people must take comprehensive and coordinated action to combat the spread of the virus.  This means acknowledging and explicitly considering the health risks of vulnerable populations — including people serving sentences in state prisons — when crafting and implementing gubernatorial responses to reduce the risk of transmission.

Jails and prisons are unable to comply with CDC hygiene standards and are accelerating the pandemic.  People who are incarcerated are more likely to have chronic health conditions than the general public.  Likewise, the percentage of people age 55 or older in state prisons has more than tripled between 2000 and 2016.  Incarceration also has negative “knock on” effects.  Incarcerated people tend to age faster than the general population, and their physiological age outpaces their chronological age by anywhere from 7 to 10 years.

In some states, local government actors have responded to the growing threat of COVID-19 by taking steps to reduce jail populations and to limit the number of people being admitted to jails.  Police departments are also adjusting by issuing citation and misdemeanor summons for certain offenses.  But while local government officials have begun tackling the risk that jail populations pose, little movement has occurred to reduce prison populations and the attendant risk of transmission of COVID-19 to people serving sentences in prisons, prison employees, their families, and their communities.

If states are serious about preventing the spread of COVID-19, they must take immediate action to reduce the number of people in state prisons. While every state’s mechanisms will differ according to constitutional and statutory provisions, there are a number of actions that state actors — including governors — can take.

See Appendix for a state-by-state overview of these legal mechanisms.

April 14, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Noticing ever-growing number of states with an ever-growing number of prisoner and prison staff deaths due to COVID-19

Six week ago, via this post, I first flagged how the looming threat of the coronavirus could be especially worrisome for incarcerated populations and workers at jails and prisons.  A few weeks later, starting with posts here and here, I began flagging new reports of prisoners and staffers testing positive for COVID-19 in multiple states.  And, earlier this month via this post, I started noting the start of the (all-too-predictable) next stage of this pubic health tragedy in the form of multiple reports from multiple location of prisoners and staff dying from COVID-19.  Today, perhaps due to a recent death in an Ohio state facility, I feel compelled to do another review of headlines documenting this ever-expanding tragic reality in ever-more states:

California: "Member of L.A. jail nursing staff who died had coronavirus"

Connecticut: "First incarcerated person dies as COVID-19 spikes behind bars"

Georgia: "Second Lee St. Prison inmate dies of COVID-19"

Illinois: "Coronavirus update: 5 deaths now reported at Stateville Prison"

Louisiana: "DOC confirms Angola staff member died from COVID-19-related complications"

Maryland: "Inmate Dies as COVID-19 Cases in MD Correctional Facilities Rise"

Michigan: "3 more Michigan prison inmates die from COVID-19"

Mississippi: "Mississippi inmate who died tested positive for COVID-19"

New Jersey: "Veteran N.J. corrections officer, father of 3, dies from coronavirus at 44"

New York: "Second Rikers Island inmate dead from coronavirus after failed release"

Ohio: "Pickaway Correctional inmate becomes first state inmate to die after testing positive for COVID-19"

Pennsylvania: "Pennsylvania prisons report first inmate death of coronavirus; two more Northampton County Jail inmates test positive"

Texas: "Texas prison guard dies after being hospitalized with COVID-19"

Virgina: "Female Inmate Is Virginia Prisons’ First Coronavirus Death"

Washington DC: "DC Jail inmate dies after testing positive for the coronavirus"

April 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Documenting the Challenges (and Documents) as Ohio Courts Respond to COVID-19"

The title of this post is the title of this new short report posted to SSRN produced by folks (including me) at the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law.  The report is focused on general court orders, but it highlights how these orders mostly fail to focus on reducing incarcerated populations at the time of a pandemic.  Here is the abstract:

As the coronavirus led to the vast majority of Americans living under stay-at-home orders, government institutions confronted a public health imperative to slow the spread of a communicable disease while still maintaining vital services for their constituents.  Judicial branches of governments faced particular challenges given the traditional face-to-face and often time-sensitive nature of their work.  Further, while governors can generally exercise centralized control over many parts of the executive branch of government, the judicial function in many states does not operate under a single chief administrator.  Ohio represents one such non-unified court system, and this research project sought to review and summarize the formal responses of Ohio courts in the weeks during which the state began shutting down non-essential services in response to the COVID pandemic.  This review reveals considerable formal action in service of minimizing physical appearances at court, but also highlights that relatively few court orders included express provisions aimed at decreasing the number of people entering prisons or authorizing proactive steps to release people from detention.

April 14, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Monday, April 13, 2020

Latest BOP numbers with still more COVID cases, and more prisoner deaths, at still more federal facilities

This post from last Monday noted that the data set forth on BOP's COVID-19 Update page in the early evening of April 6 reported 196 inmates and 63 staffers positive for COVID-19.  Though not then reported by BOP, there were I believe five or six official prisoner deaths as of this time last week.  Now, just a week later, here is the BOP's official accounting:

As of 04/13/2020, there are 388 federal inmates and 201 BOP staff who have confirmed positive test results for COVID-19 nationwide.  Currently, 19 inmates and 12 staff have recovered.  There have been 13 federal inmate deaths and 0 BOP staff member deaths attributed to COVID-19 disease.   

40 BOP facilities and 9 RRCs affected nationwide.

I fear even these official numbers are likely to continue to get worse in the days ahead, and press reports suggest that I suspect the "real" numbers are worse still.

To provide some context for these number, consider that the federal inmate population is "only" 175,000, and yet there are already 13 official COVID deaths within the federal inmate population.  This is more COVID deaths than are being reported right now by the Worldometer accounting in seven distinct US states: Wyoming (population nearly 600,000), Alaska (nearly 750,000), North Dakota (nearly 800,000), South Dakota (nearly 900,000), Montana (over 1 million), Hawaii (nearly 1.5 million), and West Virginia (population nearly 1.8 million).  This is also more COVID deaths than are reported right now by the Worldometer accounting in countries such as Qatar (population nearly 3 million), New Zealand (nearly 5 million), Slovakia (nearly 5.5 million) Singapore (over 5.5 million).

April 13, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Highlighting data showing why it is safe to consider all persons for release when prisons are so dangerous

Building on their recently published recidivism research, J.J. Prescott, Benjamin Pyle and Sonja Starr have this notable new Slate piece headlined "It’s Time to Start Releasing Some Prisoners With Violent Records."  I recommend the piece in full, and here are excerpts:

Prisons and jails are fast becoming an epicenter of the COVID-19 pandemic . Last week, for instance, the New York Times reported that Cook County jail was “now the nation’s largest-known source of coronavirus infections.”  After far too much lost time, some governors and criminal justice officials are finally trying to mitigate the damage by releasing inmates or transferring them to home confinement.

To succeed, these steps must extend to prisoners with violent records.  This should be obvious based on sheer numbers.  People with violent convictions make up a majority of the total state prison population.  Because sentences for violent crimes are longer, they make up an even larger percentage of the older detainees most vulnerable to COVID-19: about two out of every three prisoners over age 55.

So far, this reality is being ignored.  Efforts to move people out of prisons and jails have mainly focused on the lowest-hanging fruit: those detained for inability to pay bail, technical parole violations, minor misdemeanors, and the like. Almost all these measures have excluded people convicted of violent crimes.  Many prepandemic criminal justice reforms have also focused on nonviolent offenders only, so we shouldn’t be surprised.  For many, people with violent convictions seem dangerous, and the idea of granting them any kind of relief is simply anathema.

But how dangerous is it to release prisoners with violent records?  We recently carried out an empirical study using post-release crime data on hundreds of thousands of such prisoners.  We found that it is much less dangerous than you probably think.  And during this pandemic, we can add, it seems doubtless much less dangerous than keeping them behind bars.

Our study found that among those released after serving a sentence for a violent crime, about one of every 10 releasees was sent back to prison for any new crime within the next three years. Only one of every 20 had another violent crime in three years.  In fact, re-offense rates have been consistently shown to be lower for people released after serving sentences for violent crimes than those released for nonviolent crimes.

Crime rates are even lower if you look at older prisoners — the ones most seriously threatened by COVID-19.  We looked at more than 7,000 individuals over age 55 who had served at least five years in state prisons for a violent offense.  Fewer than 1 percent of such individuals were re-incarcerated for any new crime in the three years after release, and fewer than 0.5 percent for another violent crime.

Our study was bigger and more recent than most, but our findings are consistent with the patterns we found in a comprehensive review of the literature.  Moreover, all those low re-offense rates were for normal releases from prison into society.  But “releases” now need not simply mean flinging open the prison gates indiscriminately. It could mean temporary transfers to home confinement for the duration of the emergency.  Protective measures like electronic monitors are also available....

Of course, at many prisons there could be some individuals who really are so dangerous that they cannot be safely released, even to home confinement.  But the data tell us that such cases are likely to be relatively few, and officials should be required to identify them based on clear evidence.  It certainly shouldn’t be assumed to be true of all who have violent convictions.  And once as many people as possible have been removed from facilities, it will be easier to practice social distancing among those who remain.

Are crime rates among those released likely to be zero?  No — but they should be close to it.  The stakes of doing nothing, though, have never been higher.  Categorically refusing to remove violent offenders from these virus hotbeds does not protect public safety. It endangers it....  COVID behind bars threatens everyone outside too.  Staff — and some detainees — come and go daily.  Some will bring COVID in with them, and after it has spread, much larger numbers will take it out.  Plus, sick prisoners will have to be moved to local hospitals, competing for scarce resources.

Prisons and jails are like concerts, conferences, and cruise ships: places where crowds in confined spaces can spread the virus to many, many people fast.  But unlike these other sites, they won’t be shut down.  So COVID outbreaks behind bars threaten our entire society’s ability to control the pandemic and return to normal life....

The COVID-19 situation in prisons is a moral test that, so far, our society is failing.  Even when our own safety is at stake, we make knee-jerk assumptions about people who once committed a violent crime: that they cannot ever reform.  These assumptions are not borne out by data.  And right now, they are blinding us to what is needed to protect all of us.

The new empirical study referenced in this piece is titled "Understanding Violent-Crime Recidivism" and is available at this link via SSRN.  Here is the piece's abstract:

People convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration.  Serious efforts to shrink the large footprint of the prison system will need to recognize this fact.  This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic.  Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars.  Excluding them from protective measures will deeply undermine those measures’ effectiveness — and yet many governors and officials have hesitated due to fears of violent-crime recidivism.  In addition, the population imprisoned for violent offenses also exhibits sharper demographic disparities than the general prison population across both age and race.  Consequently, reforms that target those convicted only of nonviolent crimes will likely exacerbate existing inequalities in the criminal justice system.

In this Article, we start from the premise that better understanding individuals convicted of violent crimes is essential to overcoming resistance to the idea of releasing them earlier — and in particular, to address the fear that this population will almost certainly reoffend violently.  We review existing studies and offer new empirical analysis to inform these questions.  Although estimates vary, our synthesis of the available evidence suggests that released violent offenders, especially homicide offenders who are older at release, have lower overall recidivism rates relative to other released offenders.  At the same time, people released after previous homicide convictions may be more likely to commit new homicides than otherwise comparable releasees, although probably not by as much as most would expect.

April 13, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Offense Characteristics, Prisons and prisoners | Permalink | Comments (1)

"Tips For Prisoner Release Requests During Pandemic"

The title of this post is the title of this timely new Law360 piece authored by William Athanas, JD Thomas and Charles Prueter.  Here are excerpts:

This article reviews the legal framework applied to assess compassionate release requests seeking relief based on the pandemic, and endeavors to extract guiding principles from 70 of the decisions issued by federal courts in the past three weeks in an effort to inform eligibility determinations and increase the likelihood of success of future motions....

Defendants began to file motions for compassionate release premised on COVID-19 fears in the third week of March. In reviewing 70 of the orders issued in response to these motions since March 17, it is interesting to note that only one was filed by an inmate actually suffering from the disease. Instead, those seeking relief premised their requests on risk of harm that would result were they to become infected.

A review of decisions issued as of April 10 reveals a number of guiding principles:

  • Exhaustion of administrative remedies is the key factor.  In all but three of the 43 cases where courts denied relief, failure to exhaust administrative remedies was the primary reason given.  In the 24 cases where relief was granted, the defendant was found to have exhausted administrative remedies, or the court determined that an exception to the exhaustion requirement existed.
  • Government consent is an important, but not essential, factor.  To be sure, a defendant’s ability to secure government consent to the motion was valuable.  Compassionate release was granted in all of the cases where the government consented to the relief sought.  But even in the remaining cases where the government objected to the motion, compassionate relief was granted in 13 instances (note that it was unclear whether the government opposed relief in the remaining cases).
  • Types of health conditions matter.  As one would expect, motions filed by inmates with significant respiratory issues were granted most frequently.  Success was not limited to inmates experiencing those conditions, however, as courts also granted compassionate release for those suffering from diabetes, hypertension, Crohn’s disease, and other instances where inmates suffered from chronic conditions which left them immunocompromised.  Note that not all inmates suffering from such conditions have been deemed eligible for relief, however, if they failed to exhaust administrative remedies.
  • Length of sentence remaining was not a determinative factor.  While many of the defendants successful in gaining release had a relatively short amount of time left before completing their sentences, courts have not required deemed that a perquisite.  In fact, of the defendants whose motions have been granted, 10 had a year or more left to serve.
  • Presence of the virus in the facility.  Several courts which granted relief cited this factor as evidence of “extraordinary and compelling reasons,” including one which distinguished cases denying relief on the grounds on the fact those defendants were not housed in facilities where “where COVID-19 was spreading.”  At least half the cases made no mention of this factor, however, suggesting that it is not a necessary prerequisite. In one instance, relief was granted even though the defendant had already been released to a residential reentry center....

The number of compassionate release motions premised on COVID-19 is likely to increase as pandemic worsens in the days and months to come.  Because the law governing evaluation of such motions is so recent, those seeking relief on the basis of “extraordinary and compelling reasons” are well served by understanding which factual scenarios and legal arguments best position those requests for successful outcomes.

Prior recent related posts:

April 13, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)