Thursday, March 26, 2020

"U.S. attorney general seeks to expand home confinement as coronavirus spreads in prisons"

The title of this post is the headline of this new Reuters piece, and here are the details:

U.S. Attorney General William Barr said Thursday he has directed the federal Bureau of Prisons (BOP) to expand its use of home confinement for inmates in appropriate cases, as the coronavirus has continued to spread in the federal prison system.

A total of six inmates and four prison staffers have tested positive for COVID-19, Barr said, adding that several federal facilities including two in New York City are now on lock-down as a result.

The First Step Act, signed into law by U.S. President Donald Trump in late 2018, expanded the BOP’s powers to maximize the amount of time that lower-risk inmates can spend in home confinement, when possible. “I’ve asked and issued a memorandum just today to the Bureau of Prisons to increase the use of home confinement,” Barr told reporters during what Barr said was the department’s first-ever “virtual” press conference in order to practice social-distancing.

“One of the things we have to assess is whether that individual...will be more safe in the particular circumstance in which they are going to find themselves. And in many cases, that may not be the case.” He added that any inmate released on home confinement will still face a 14-day quarantine.

Notably, since this article was published, the BOP has updated here its data on positive tests to report that there are now 10 federal inmates and 8 federal prison staffers who have tested positive for COVID-19.

UPDATE:  A helpful colleague provided me with a copy of the two page memorandum titled "Prioritization of Home Confinement As Appropriate In Response to COVID-19 Pandemic."  Here it is:

Download BOP Memo.Home Confinement

March 26, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

FAMM urges AG Barr to use new pending CARES Act provision to move federal prisoners into home confinement

I have not yet seen the exact language of the provision in the sure-to-pass federal CARES Act that expands the authority of the Justice Department and the Bureau of Prisons to move more persons from federal prison into home confinement.  But I have seen this new press release from FAMM, which starts this way:  

FAMM President Kevin Ring sent a letter today urging U.S. Attorney William Barr to immediately use his authority to release eligible people to home confinement as soon as the CARES Act becomes law.  The CARES Act, which was passed by the Senate last night and is expected to be approved by the House and signed by the president, permits the Director of the Federal Bureau of Prisons to lengthen the maximum amount of time that a prisoner may be placed in home confinement, if the U.S. Attorney General finds that emergency conditions will materially affect the functioning of the BOP.

“In order to prevent unnecessary deaths and suffering, the BOP needs to get as many people out of prison as it safely can and get them to home confinement immediately,” Ring said.  “Congress is giving the attorney general the authority to make that happen.  We urge the attorney general to act the moment this bill is signed into law.  Lives are at stake.”

Ring said the use of home confinement would also ease the burden on halfway houses, in which movement has been restricted, employment opportunities have been halted, and people are confined in tight quarters.  As with people in prison, halfway house residents cannot comply with CDC guidance regarding social distancing and good hygiene.

March 26, 2020 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Documenting early federal court COVID jurisprudence in response to various release requests from federal defendants and inmates

In this post on Monday (March 23), I documented some recent pre-coronavirus cases in which federal prisoners secured sentence reductions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).   I expect we will see more and more of these cases in the weeks ahead, especially as FAMM and NACDL and other groups look to support efforts to move vulnerable federal inmates out of unhealthy prison facilities via this avenue.

In doing Westlaw research this morning, I thought it might be informative to look more generally at how federal judges are responding to COVID-19 related claims and issues in criminal cases.  As is always the case, there is not a predictable pattern as to which opinions show up in Westlaw and which ones do not, so Westlaw searches alone cannot serve as a form of reliable comprehensive research.  Nevertheless, a search in the "Federal District Court" database for "covid prison" returned nearly 30 federal cases from just the last two days(!), and here is a small sampling of what courts are considering and saying in written opinions that now appear on Westlaw:

United States v. Clark, No. 19-40068-01-HLT, 2020 WL 1446895 (D. Kansas March 25, 2020) (responding to defendant detailed pending trial: "On balance, Mr. Clark has not established compelling reasons sufficient to persuade the court that temporary release is necessary. He has established only that his status as a diabetic puts him at an increased risk for experiencing severe illness if he were to contract COVID-19. His arguments regarding the risk of an outbreak at his facility is speculative. Furthermore, he has not established that his proposed release plan would necessarily alleviate his overall COVID-19 risks.")

United States v. Eberhardt, No. 13-cr-00313-PJH-1, 2020 WL 1450745 (N.D. Cal. March 25, 2020) (responding to most for a reduced sentence: "Furthermore, defendant fails to show that concerns about the spread of COVID-19, without other factors to consider in his particular case, present extraordinary and compelling reasons that warrant modification of his sentence and immediate release from custody pursuant to § 3582(c)(1)(A).")

United States v. Garlock, No. 18-cr-00418-VC-1, 2020 WL 1439980 (N.D. Cal. March 25, 2020) (sua sponte deferral of prison report date: "To avoid adding to the chaos and creating unnecessary health risks, offenders who are on release and scheduled to surrender to the Bureau of Prisons in the coming months should, absent truly extraordinary circumstances, have their surrender dates extended until this public health crisis has passed.")

United States v. Fitzgerald, No. 2:17-cr-00295-JCM-NJK, 2020 WL 1433932 (D. Nevada. March 24, 2020) (responding to habeas application: "Defendant argued for the first time in reply that he faces an increased risk of contracting COVID-19 if he remains in custody.... Defendant’s argument, however, applies equally to anyone in custody or, for that matter, at the halfway house or anywhere else in this community or any other. Defendant’s argument applies equally to every detainee in detention; however, the Court cannot release every detainee at risk of contracting COVID-19 because the Court would then be obligated to release every detainee.")

United States v. Williams, No. PWG-13-544, 2020 WL 1434130 (D. Nevada. March 24, 2020) (responding to emergency motion to reconsider setting bond: "The Court has reflected on all of the considerations and factors in play at the detention hearing held on February 11. Even with the pandemic that has befallen us, it does not change the calculus of detention here.... Defendant has still failed to demonstrate by clear and convincing evidence that release is appropriate. The existence of the present pandemic, without more, is not tantamount to a “get out of jail free” card. Not even for the older person being detained. While there has been a change in conditions as a result of the pandemic, there has not been enough change to justify the release of Mr. Williams.")

March 26, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, March 25, 2020

"You’re going to see devastation that’s unbelievable" says former director of Colorado Department of Corrections

The quote in the title of this post jumped out at me as I reviewed this lengthy new Stateline piece headlined "‘Prisons Are Bacteria Factories’; Elderly Most at Risk." Here is context and excerpts from the piece:

As the coronavirus pandemic sweeps the globe, prisoner advocates are warning of the potential for a disastrous outbreak among inmates.  The elderly are most vulnerable, and the U.S. inmate population is aging.  Jails and prisons, crowded places where social distancing is nearly impossible, are breeding grounds for contagious disease.

“These prisons are bacteria factories,” said Rick Raemisch, a consultant and former executive director at the Colorado Department of Corrections. “I don’t think people understand the gravity of what’s going to happen if this runs in a prison, and I believe it’s inevitable.  “You’re going to see devastation that’s unbelievable.”...

While state prisons have resisted calls to release inmates, several large county and municipal jurisdictions have freed hundreds of jail inmates deemed low-risk, including seniors and those in poor health.  New Jersey plans to release as many as a thousand people from its county jails, including inmates jailed for probation violations and those sentenced for low-level offenses.  Democratic Mayor Bill de Blasio said Monday that New York City may release more than 200 inmates, according to news reports.  Los Angeles County and Ohio’s Cuyahoga County also have released prisoners.

Prisoner advocacy groups in more than a half-dozen states, including Texas, New York, Illinois, Pennsylvania, Indiana and Michigan, have called on governors to release state prisoners, especially elderly inmates, through compassionate release or medical furlough....

State prison systems so far have sidestepped requests to release inmates. Instead, they are disinfecting more frequently and tightening screening at prison entrances, among other measures....  The prison system is emphasizing hand-washing and doing what it can to promote social distancing despite the obvious limitations in a prison environment, said Jeremy Desel, spokesman for the Texas Department of Criminal Justice. “We’re doing everything we can in our power to socially distance folks as much as possible by slowing down offender movements and various other techniques,” he said, “but given the circumstances there will be times when there will be more people in one place than anybody would like.”...

Long before the emergence of the coronavirus, prison officials and state lawmakers across the country were concerned about elderly prisoners.  Patrick O'Daniel, chairman of the Texas Board of Criminal Justice, told board members in late February that the number of Texas inmates 55 or older is growing by nearly a thousand a year and has doubled over the past decade.

The aging baby boomers now comprise nearly 15% of the more than 140,200 men and women in Texas prisons. Nationwide, nearly 12% of inmates in state and federal prisons are older than 55.  Like their counterparts on the outside, elderly prisoners make up the lion’s share of health care costs, putting intense pressure on government budgets.  Over a 10-year period ending in 2019, health care costs for the elderly in Texas prisons increased from $51.8 million to $114.7 million, encompassing often complicated and costly treatments for illnesses such as cancer, diabetes, kidney disease, hepatitis and a whole host of other aging-related ailments.

Prior coronavirus posts highlighting need for urgent action on imprisonment amidst epidemic:

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

Headlines and news stories from jails and prisons in every part of the United States

I fear that I will not have the time and energy this morning to capture a recent headline and story about the coronavirus impact on jails and prison from every single US state.  But, aided greatly by a round-up this morning in The Opening Statement from The Marshal Project, I think I can at least hit every part of our great nation:

National: "'Disaster waiting to happen': Thousands of inmates released as jails and prisons face coronavirus threat"

Federal: "Sick Staff, Inmate Transfers, and No Tests: How the U.S. Is Failing Federal Inmates as Coronavirus Hits"

 

Arizona: "Concern spreads over potential COVID-19 outbreak in state prisons"

California: "1,700 inmates released from Los Angeles County in response to coronavirus outbreak"

Connecticut: "The DOC, with a first COVID-19 case, still hasn’t announced a plan for inmate release"

Florida: "Florida prison employee tests positive for COVID-19"

 

Georgia: "DeKalb Jail inmate, employee test positive for COVID-19"

Kentucky: "Chief justice pleads for Kentucky inmate releases ahead of COVID-19, but progress slow"

Louisiana: "More positive coronavirus cases for New Orleans jail staff as inmates await results"

Iowa: "Iowa’s prisons will accelerate release of approved inmates to mitigate COVID-19"

 

Massachusetts: "COVID-19 cases at Bridgewater prison facility up to 10"

New Jersey: "Inmate at Morris County Jail tests positive for COVID-19"

New York: "New York to release 300 nonviolent Rikers inmates amid pandemic"

Oklahoma: "Over 200 nonviolent offenders released from Oklahoma County jail to limit COVID-19 spread"

 

Pennsylvania: "Prison guards protest transfers of prisoners from covid-19 hotspots to central PA"

South Dakota: "8 inmates leave S.D. prison after another prisoner tests positive for COVID-19"

Tennessee: "25 People Released From Davidson County Jail in Anti-Outbreak Effort"

Texas: "Coronavirus hits Texas prisons with first inmate case confirmed"

Washington: "14 inmates escape from Washington jail amid COVID-19 shelter-in-place order"

 

All these headlines, capturing developments nationwide and in 17 states, surely captures only a tiny slice of everything going on these crazy days in incarceration nation. Whew.  Sigh.  Sniff.

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

Tuesday, March 24, 2020

"Mass Incarceration: The Whole Pie 2020"

WholePie_130The Prison Policy Initiative has today posted the latest, greatest version of its remarkable incarceration "pie" graphic and associated report on the particulars of who and how people are incarcerated in the United States.  The extraordinary pies produced by PPI impart more information in one image than just about any single resource, and at this moment it is especially valuable to know about just who is behind bars and for what.  Here is part of the report's introductory text and the concluding discussion:

Can it really be true that most people in jail are being held before trial? And how much of mass incarceration is a result of the war on drugs? These questions are harder to answer than you might think, because our country’s systems of confinement are so fragmented. The various government agencies involved in the justice system collect a lot of critical data, but it is not designed to help policymakers or the public understand what’s going on. As public support for criminal justice reform continues to build, however, it’s more important than ever that we get the facts straight and understand the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds almost 2.3 million people in 1,833 state prisons, 110 federal prisons, 1,772 juvenile correctional facilities, 3,134 local jails, 218 immigration detention facilities, and 80 Indian Country jails as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories. This report provides a detailed look at where and why people are locked up in the U.S., and dispels some modern myths to focus attention on the real drivers of mass incarceration, including exceedingly punitive responses to even the most minor offenses.

This big-picture view allows us to focus on the most important drivers of mass incarceration and identify important, but often ignored, systems of confinement. The detailed views bring these overlooked systems to light, from immigration detention to civil commitment and youth confinement. In particular, local jails often receive short shrift in larger discussions about criminal justice, but they play a critical role as “incarceration’s front door” and have a far greater impact than the daily population suggests.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities, nor the far larger universe of people whose lives are affected by the criminal justice system. Every year, over 600,000 people enter prison gates, but people go to jail 10.6 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail within hours or days, while many others are too poor to make bail and remain behind bars until their trial. Only a small number (about 160,000 on any given day) have been convicted, and are generally serving misdemeanors sentences under a year. At least 1 in 4 people who go to jail will be arrested again within the same year — often those dealing with poverty, mental illness, and substance use disorders, whose problems only worsen with incarceration....

Now that we can see the big picture of how many people are locked up in the United States in the various types of facilities, we can see that something needs to change. Looking at the big picture requires us to ask if it really makes sense to lock up 2.3 million people on any given day, giving this nation the dubious distinction of having the highest incarceration rate in the world. Both policymakers and the public have the responsibility to carefully consider each individual slice in turn to ask whether legitimate social goals are served by putting each group behind bars, and whether any benefit really outweighs the social and fiscal costs.

Even narrow policy changes, like reforms to money bail, can meaningfully reduce our society’s use of incarceration. At the same time, we should be wary of proposed reforms that seem promising but will have only minimal effect, because they simply transfer people from one slice of the correctional “pie” to another. Keeping the big picture in mind is critical if we hope to develop strategies that actually shrink the “whole pie.”

March 24, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners | Permalink | Comments (0)

Broad coalition urges Prez Trump to commute the federal sentences in response to coronavirus crisis

A whole bunch of public policy and civil rights groups have just sent this short letter urging Prez Trump to utilize his clemency power to commute the federal sentences of those "who could benefit from compassionate release, and other populations that are exceptionally vulnerable to coronavirus."  The letter details the COVID-19 emergency emerging in prisons and jails and closes with this ask:

We call upon you to commute the federal sentences of individuals who could benefit from compassionate release, including those who: 

  • Are older and elderly; 
  • Have a terminal medical condition; 
  • Have a debilitated medical condition; 
  • Suffer from a chronic medical condition; or 
  • Have suffered a death of a family member who is a primary caregiver to a child of the person incarcerated.

In addition to commuting the federal sentences of individuals who could benefit from compassionate release, we call upon you to use your clemency power to release those incarcerated at the federal level who are elderly and/or particularly vulnerable to serious illness or death from COVID-19 due to underlying health conditions as identified by the Centers for Disease Control and Prevention, including: 

  • Blood disorders; 
  • Chronic kidney disease; 
  • Chronic liver disease; 
  • Compromised immune system (immunosuppression); 
  • Current or recent pregnancy; 
  • Endocrine disorders; 
  • Metabolic disorders; 
  • Heart disease; 
  • Lung disease; 
  • Neurological and neurologic and neurodevelopment conditions; and 
  • Hypertension.

As we work to combat the spread of the coronavirus pandemic, it is essential that we not forget about the millions of Americans currently incarcerated and working in jails, prisons and detention centers, and that we take action to protect those who are the most vulnerable to COVID-19. Again, we ask you to commute the sentences for those populations at the federal level most vulnerable to coronavirus.

UPDATE: It is worth noting here that this call to Prez Trump to use his clemency powers to move people out of federal prisons could and should also be directed, on similar terms, to Governors across the nation.  Helpfully, I just got word from Margy Love that the Collateral Consequences Resource Center has a new resource on state clemency posers. This CCRC post provides the details and other helpful links:

At this time of pandemic, we have been following the discussions of how jail, prison, and immigration detention conditions are highly concerning, including the very useful collection of links provided by Professor Doug Berman, the demands published by advocacy organizations, and the collection of policy responses by the Prison Policy Institute.  We agree that every available legal mechanism must be enlisted to secure the release of prisoners and detainees who pose little or no threat to public safety, and whose health and safety are themselves severely threatened by their enforced captivity.  This includes the great constitutional powers given to governors and pardon boards.  We therefore commend our newly revised pardon resources to advocates and policy makers to support their advocacy and action.

While our pardon-related research focuses primarily on how the power is used to restore rights and status to those who are no longer in prison, much of our information about how the pardon process is structured and operates is relevant to how the power might be used (or is already being used) to commute prison sentences during the pandemic.  Our revised pardon resources are part of a major revision of the CCRC Restoration of Rights Project, not only to make sure its information is current in light of the many recent changes in the law, but also reorganizing and revising its resources for clarity and easier access.  In the process, we have updated and revamped our state-by-state material on how the pardon process operates in each jurisdiction, noting that the process has become more regular and productive in a few states in the past several years.

Our 50-state pardon comparison is organized into four sections:

  • Section 1 provides a chart comparing pardon policy and practice across jurisdictions.
  • Section 2 lists jurisdictions by frequency and regularity of their pardon grants.
  • Section 3 sorts jurisdictions by how the administration of the power is structured.
  • Section 4 provides state-by-state summaries of pardon policy and practice, with links to more detailed analysis and legal citations.

March 24, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"How Coronavirus is Disrupting the Death Penalty"

The title of this post is the headline of this new Marshall Project piece highlighting some topics I have been tracking recently.  Here are excerpts:

With a signature from Gov. Jared Polis, Colorado on Monday became the 22nd state to abolish the death penalty. But the governor’s long-planned intervention comes at a moment when capital punishment is already at a standstill across the nation for a very different reason: coronavirus.

The growing global pandemic—reaching 163 countries and more than 15,000 deaths—has at least temporarily saved two condemned men from execution in Texas, with more delays sought elsewhere. The pandemic has also stopped trials in which the death penalty was being sought. It has even upended the process for defense attorneys to try to exonerate their clients facing capital punishment.

“Almost every aspect of legal representation is at a halt in the judicial system,” said Amanda Marzullo, a consultant with the Innocence Project. “People are effectively unable to prepare and investigate their cases.”...

Executions are frequently put on hold due to Supreme Court decisions and lethal injection drug shortages, but rarely do natural events play such a disruptive role. One example was in 2017, when Juan Castillo’s execution was delayed after Hurricane Harvey hit Texas. (He was executed the following year despite his long-standing claims of innocence.)

And more stays may be coming. Last week, lawyers for Oscar Smith asked the Tennessee Supreme Court to delay his June 4 execution. They said they plan to ask Gov. Bill Lee for clemency but cannot put together an application “without putting themselves and others at risk” of contracting the virus. Executions are also scheduled for May in Missouri and June in Ohio, although the latter state lacks lethal injection drugs. Several other defense lawyers told The Marshall Project they plan to ask for delays.

With trials halted around the country, the number of new death sentences will drop, at least temporarily. Even before Colorado’s governor signed the abolition bill, a judge in Adams County postponed the trial of Dreion Dearing, who was facing a death sentence for the murder of Deputy Heath Gumm in 2018. (Dearing can still face death despite the repeal due to the timing of his charges, according to the Denver Post.) Judge Mark Warner had previously been criticized by defense lawyers for pushing the trial forward and having 250 potential jurors gather at one time, even as other courts were closing down. In Texas, jury selection for a death penalty trial in San Antonio was halted for 30 days.

In Tarrant County, Texas, prosecutors agreed to postpone the trial of Reginald Kimbro, who faces a potential death sentence if he’s convicted of the rapes and murders of two young women in 2017. Kimbro’s lawyer Steve Gordon said many jurors were elderly, and witnesses were slated to travel from Arkansas....

The slowdown caused by the COVID-19 crisis is even affecting cases that would not go to trial for months. People who face a death sentence typically work with a defense investigator whose job is to gather information to sway the jury towards mercy. These specialists do most of their interviewing in person, because it allows them to gain sensitive information about mental health issues and trauma. “If you knock on somebody’s door during a pandemic, you’re creating more barriers to relationship-building,” said Elizabeth Vartkessian, who oversees investigations for the non-profit Advancing Real Change, Inc.

There is at least one notable exception to this slowdown, which will test how long the disruption may last. Last week, a judge in Corpus Christi, Texas, approved a request from the Nueces County District Attorney's office and set an execution date for John Ramirez, who was convicted of fatally stabbing a man during a 2004 robbery. Ramirez is scheduled to die on Sept. 9.

Prior recent related posts:

March 24, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Bipartisan group of Senators write to DOJ and BOP to urge taking "necessary steps" to protect "most vulnerable" prison staff and inmates

Late yesterday, fourteen US Senators (including some from both political parties) wrote this short letter to Attorney General William Barr and BOP Director Michael Carvajal urging action to protect vulnerable federal prison staff and inmates at this time of the coronavirus outbreak (also available here).   Though the letter runs only five substantive paragraphs, nearly every passage includes language that lawyers might want to utilize in any filings seeking to keep defendants from going in to, or seeking to get inmates out of, federal facilities.  Here is the full letter (with key phrases bolded):

On March 13, 2020, President Trump declared a state of emergency concerning the novel coronavirus disease (COVID-19) outbreak. We write to express our serious concern for the health and wellbeing of federal prison staff and inmates in Federal custody, especially those who are most vulnerable to infection, and to urge you to take necessary steps to protect them, particularly by using existing authorities under the First Step Act (FSA).

We have reviewed the Federal Bureau of Prisons (BOP) COVID-19 Action Plan, which covers health screening, limits on outside visits, staff travel, and inmate transfers, but notably does not include any measures to protect the most vulnerable staff and inmates.  The Centers for Disease Control and Prevention (CDC) has issued guidance indicating that adults over 60 years old and individuals with chronic medical conditions, such as lung disease, heart disease, and diabetes, are at a higher risk of contracting COVID-19 and suffering more severe illness and death.  The CDC has advised these individuals to avoid crowds and stay at home as much as possible.  Conditions of confinement do not afford individuals the opportunity to take proactive steps to protect themselves, and prisons often create the ideal environment for the transmission of contagious disease. For these reasons, it is important that consistent with the law and taking into account public safety and health concerns, that the most vulnerable inmates are released or transferred to home confinement, if possible.

COVID-19 is an unprecedented crisis for our nation, including our inmate population.  However, Congress has equipped BOP and the Department of Justice (DOJ) with tools to use to maximize their efforts to overcome these daunting times.  For example, the FSA reauthorized and expanded the Elderly Home Detention Pilot Program to place eligible elderly and terminally ill inmates in home confinement.  This pilot program permits the Bureau of Prisons (BOP) to transfer nonviolent offenders to home detention if they are sixty years or older and have served 2/3 of their term of imprisonment, among other requirements.  We call on BOP and DOJ to review and expedite the current cases where the Elderly Home Detention Pilot Program would allow for an early transfer – where appropriate – of terminally ill and eligible elderly inmates to home confinement.  Since elderly offenders are the most vulnerable to infection and the least likely to reoffend, we urge BOP’s speedy review and processing of these cases for early release.

In addition, the FSA reformed the compassionate release program for people facing “extraordinary and compelling” circumstances. However, since enactment, BOP has opposed the vast majority of petitions.  According to a report recently filed by BOP, in 2019, 1,735 requests for release were initiated by or on behalf of inmates, of which 1,501 were denied by wardens and 226 were forwarded to the BOP Director.  Of these 226, BOP approved only 55 requests and denied 171 requests.  We urge you to immediately issue guidance requiring that “extraordinary and compelling” circumstances be interpreted more broadly and clarify that such circumstances include vulnerability to COVID-19.

Finally, Section 602 of the FSA directed BOP, to the extent practicable, to transfer lower-risk inmates to home confinement for the maximum amount of time permitted under the law, which is the shorter of 10 percent of the term of imprisonment or six months.  Given the current state of emergency, we urge you to consider the use of this authority to quickly transfer non-violent offenders who are at high risk for suffering complications from COVID-19 to home confinement.

March 24, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

US Sentencing Commission published its 2019 Annual Report and Sourcebook of Federal Sentencing Statistics

I have been a bit disappointed, but not at all surprised, that the US Sentencing Commission has not yet put out any data or statement about the coronavirus outbreak that is roiling the federal criminal justice system.  The USSC is not really geared up for producing real-time data even under the best of circumstances, and these are not anywhere close to the best of circumstances.  Nevertheless, I hope that, before too long, the USSC might be able to provide some kind of real-time updates on just how many sentencings are now being conducted in federal courts and/or providing updates to regular data set like Offenders in the Federal Bureau of Prisons.

Still, it is somewhat comforting to see that the USSC has been able to complete some of its usual major data undertakings even amidst all the virus turmoil.  Specifically, yesterday I received this news via email from the USSC:

[Monday] the U.S. Sentencing Commission published its 2019 Annual Report and Sourcebook of Federal Sentencing Statistics.

The Annual Report presents an overview of the Commission's work in fiscal year 2019.

The Sourcebook presents information on the 76,538 federal offenders sentenced in fiscal year 2019 — a sentencing caseload that increased for the second consecutive year. 

Fast Facts

  • The federal sentencing caseload increased by more than 7,000 cases from FY18, returning to a size similar to the caseloads of FY14 and earlier. 
  • Immigration offenses increased by more than 5,000 cases from the previous year and accounted for the largest single group of federal crime — a position held by drug offenses in FY17. 
  • Drug trafficking and firearms offenses also increased by approximately 1,000 cases each.  
  • Methamphetamine offenses, the most common drug type in the federal system, continued to rise (up from 31% of drug offenses in FY16 to 42% in FY19).
  • Methamphetamine trafficking continued to be the most severely punished federal drug crime (average sentence of 95 months). 
  • Three-quarters of federal offenders were sentenced under the Guidelines Manual in FY19.

I find a bit jarring this final statement that only "three-quarters of federal offenders were sentenced under the Guidelines Manual in FY19." In the Annual Report, the USSC more clearly explains that what they mean by this phrasing is "that the sentence was within the applicable guidelines range, or was outside the applicable guidelines range and the court cited a departure reason from the Guidelines Manual."

I hope to find time in the coming days to review these reports to flag some additional interesting data points about federal sentencing in FY19 (which ran from October 1, 2018, through September 30, 2019). Among other virtues, these data provide a useful baseline on what the federal sentencing system looked like in the year before the new coronavirus shock.

March 24, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, March 23, 2020

Notable recent (pre-COVID) grants of sentence reductions from coast to coast using § 3582(c)(1)(A) ... as FAMM urges thousand more filings in response to coronavirus

As regular readers know, in lots of prior posts since enactment of the FIRST STEP Act, I have made much of a key provision that Act which allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because I have long thought that, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

A few weeks ago before the COVID-19 outbreak became the most urgent of stories, I was starting to notice on Westlaw a growing number of rulings granting sentencing reductions using 3582(c)(1)(A).  I was drafting a detailed post on this topic when COVID started taking up all of my attention, but it now seems wise to just list some of the positive cases from the last few weeks:

United States v. O’Bryan, No. 96-10076-03-JTM, 2020 WL 869475 (D. Kan. Feb 21, 2020)

United States v. Mondaca, No. 89-CR-0655 DMS, 2020 WL 1029024 (S.D. Cal. March 3, 2020)

United States v. Young, No. 2:00-cr-00002-1, 2020 WL 1047815 (M.D. Tenn. March 4, 2020)

United States v. Davis, No. PJM 00-424-2, 2020 WL 1083158 (D. Md. March 5, 2020)

United States v. Perez, No. No. 88-10094-1-JTM, 2020 WL 1180719 (D. Kansas March 11, 2020)

United States v. Redd, No. 1:97-cr-00006-AJT 2020 WL 1248493 (E.D. Va. Mar. 16, 2020)

I felt compelled to post this list tonight because of notable news from FAMM detailed in this press release titled "FAMM urges most vulnerable people in federal prison to immediately apply for compassionate release":

 In response to the worldwide COVID-19 pandemic, FAMM sent a letter to nearly 40,000 federal prisoners today encouraging all federal prisoners who are most vulnerable to immediately apply for early release.  FAMM is working with the National Association of Criminal Defense Lawyers, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs to assist those who apply.

“There are thousands of sick and elderly people in federal prison whose continued incarceration serves no public safety purpose.  This same population is the most vulnerable to coronavirus,” said FAMM President Kevin Ring.  “They were not sentenced to death, and they should be released immediately.”

Ring noted that people in prison cannot take the same precautions that health experts have recommended to avoid contracting the virus.  People in federal prison can’t practice social distancing.  Moreover, the prisons are not clean and many do not have adequate medical care.

The Centers for Disease Control consider the most vulnerable to include people over 65 years old, and people with a condition that affects their lungs, heart, kidney, immune system, or who have another serious chronic medical condition.  There are more than 10,000 people in federal prison who are over 60 years old.  Many are in poor health.

FAMM worked with Congress to expand the compassionate release program in the First Step Act.  One of the most important reforms gave people in prison the right to go to federal court and ask a judge to grant compassionate release if the Bureau of Prisons either denies a request or does not answer a request within 30 days.

“We are urging at-risk people to make the request to their wardens immediately.  That starts the clock.  If Congress and the president don’t act before then, the courts will have the chance to do the right thing,” said Ring.

March 23, 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)

Colorado death penalty repeal official, and Gov commutes three capital sentences as he signs repeal

As reported in this local article, "Gov. Jared Polis signed a bill Monday making Colorado the 22nd state to abolish the death penalty, and he also commuted the sentences of the three killers on death row."  Here is more:

They will instead serve life sentences without the possibility of parole, Polis said.  “The commutations of these despicable and guilty individuals are consistent with the abolition of the death penalty in the State of Colorado, and consistent with the recognition that the death penalty cannot be, and never has been, administered equitably in the State of Colorado,” he said....

The historic end of executions in Colorado comes after about 36 hours of debate at the legislature this year and a push by Republicans to instead put the issue on the 2020 ballot. Proponents called the death penalty “cruel and unusual punishment.”  They said its use in cases is uneven, and the litigation surrounding it is not only costly to taxpayers but forces families to relive their loved ones’ killings. Only one person has been executed in the state since 1976....

Arapahoe District Attorney George Brauchler, however, called the signing a win for criminals.  “The decision to pass and sign the death penalty repeal bill should bring a smile to the faces of future serial killers, terrorists, cop killers, mass murderers, child killers, and those in prison who decide to kill again,” he wrote in a statement.  “We have also reduced the protections for witnesses to crime by lowering the bar for their murders.  Colorado’s pro-offender legislature and its current governor have signaled that those lives are worth more protection than those of their victims.

The newly signed bill specifies that the death penalty can’t be used in cases for crimes committed on or after July 1, and currently, at least one defendant in Adams County is facing trial in a case that could result in the death penalty.  Dreion Dearing is accused of killing Adams County Deputy Heath Gumm.  “For all intents and purposes, the death penalty in Colorado is now a thing of the past,” said Jim Castle, the attorney for Sir Mario Owens, one of three men on death row.

Robert Ray and Owens were convicted of fatally shooting Gregory Vann, 20, at a 2004 party in Lowry Park. Javad Marshall-Fields was wounded in the shooting, and he and his fiancee Vivian Wolfe were planning to testify about the shooting before Ray ordered that they be killed. Owens was convicted for their 2005 murders in Aurora. They were 22 years old.

The other man on death row was Nathan Dunlap who was convicted in 1993 of fatally shooting employees who were closing for the night at Chuck E. Cheese in Aurora. He killed Ben Grant, 17; Sylvia Crowell, 19; Colleen O’Connor, 17; and Margaret Kohlbert, 50.  Bobby Stephens survived.  Dunlap received a temporary reprieve from former Gov. John Hickenlooper in 2013.  The three black men went to the same high school in Denver at different times....

The issue of the repeal doesn’t follow strict party lines.  A handful of Democrats opposed the measure while a few Republicans backed it. “As the death penalty has been a failure in several aspects, I felt compelled to fight for its repeal,” said Colorado Sen. Jack Tate, a Centennial Republican and sponsor of the Colorado bill.  “I applaud the governor’s leadership in signing this bill and moving Colorado towards a system that produces justice for all.”...

Sen. Rhonda Fields, an Aurora Democrat, joined opponents against the bill because of the killing of her son, Marshall-Fields, and his fiancée Wolfe — their killers were two of three men on death row in the state. Similarly, Aurora Democrat Rep. Tom Sullivan fought against the bill.  His son, Alex, was killed in the Aurora theater shooting.

Relatedly, the one on-going capital trial in Colorado, which moved forward last week, has now wisely been put on hold due to COVID-19 concern.

Prior recent related posts:

March 23, 2020 in Clemency and Pardons, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

With lives at stake, when will we start to see mass clemency and compassionate release?

I have been pleased to see some considerable action at the local level to try to reduce the jail population amidst the coronavirus crisis (most notably now via state Supreme Court mandate in New Jersey).  But, because everyone should realize that it is essential for the health of prison staff and their families, as well as for prisoners, for there to be smart efforts to reduce prison populations amidst this global pandemic, I am troubled that we are yet to see any mass clemency and compassionate release activity at either the federal or state level.  Because our nation's criminal justice system is defined by mass incarceration, the current public health crisis demands mass clemency and compassionate release.

Of course, if releasing elderly and unhealthy at-risk prisoners posed a major public safety concern, I could understand slow and deliberative action on these fronts.  But, a few years ago the Brennan Center examined our prison populations and reached the conclusion in this big report that "nearly 40 percent of the U.S. prison population — 576,000 people — are behind bars with no compelling public safety reason."  I am urging "big-time" clemency and compassionate release activity at every level of government because that's what it will take to even get a small percentage of this population home in short order so that they do not continue to contribute to the public safety hazards created in prisons where social distancing is impossible.

Helpfully, I am not the only one urging mass clemency and compassionate release activity, and here are a couple recent op-eds focused on specific (hard-hit) states:

From Jose Saldana, "Clemency is needed for incarcerated New Yorkers vulnerable to coronavirus"

From Nancy Gertner and John Reinstein, "Compassionate release now for prisoners vulnerable to the coronavirus"

For those new to these issues, this lengthy new Quartz piece, "Coronavirus risk looms large for America’s elderly and sick prison population," provides a terrific short overview of some of these issues with an emphasis on our graying prison population and the costs and challenges elderly offenders present even without the COVID-19 disaster.

Wonderfully, NYU's Center on the Administration of Criminal Law has created a great new clemency resource here to highlight that every jurisdiction has the means to address these matters using historic and existing clemency powers.  Here is the NYU discussion of its resource and a link:

Because of the crowded nature of correctional facilities and the limited resources available there, people incarcerated in jails and prisons are exceptionally vulnerable to the spread of COVID-19. Many facilities house significant elderly populations as well as other people with underlying conditions that make them more vulnerable to serious complications and/or death from the virus. 

One way to mitigate the mounting crisis in correctional facilities is by using executive clemency. Many state constitutions vest the governor with broad authority to grant relief without the need for legislation or other actors.  While governors can grant pardons or commutations that would have a permanent effect, they can also choose to issue reprieves, which are temporary delays in the imposition or resumption of a sentence.  By using reprieves to temporarily release people from prison, we may spare them from potentially life-threatening illness without affecting the length of their sentence.  It allows the system to press pause on a sentence until the danger passes. 

The Center has assembled a working document that catalogues the legal authority to grant reprieves in all fifty states.  We encourage anybody with state-specific knowledge to provide feedback, suggestions, or additions regarding the process of granting reprieves in a given jurisdiction by emailing us at prosecutioncenter@nyu.edu. 

Prior coronavirus posts highlighting need for urgent action on imprisonment amidst epidemic:

UPDATE: After completing this post, I just happened to come across these two additional recent op-eds on this front:

From John Mills, "Release prisoners to address the COVID-19 crisis"

From Clem Murray, "To flatten the curve, Philadelphia should release all non-violent prisoners now"

March 23, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Ruling 6-3, SCOTUS holds that Due Process does not compel a state to provide a traditional insanity defense in its criminal laws

The Supreme Court this morning handed down its opinion in the fascinating case of Kahler v. Kansas, No. 18-6135 (S. Ct. March 23, 2020) (available here). Justice Kagan authored the opinion of the Court, which starts this way:

This case is about Kansas’s treatment of a criminal defendant’s insanity claim.   In Kansas, a defendant can invoke mental illness to show that he lacked the requisite mens rea (intent) for a crime. He can also raise mental illness after conviction to justify either a reduced term of imprisonment or commitment to a mental health facility.  But Kansas, unlike many States, will not wholly exonerate a defendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong.  The issue here is whether the Constitution’s Due Process Clause forces Kansas to do so — otherwise said, whether that Clause compels the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime. We hold that the Clause imposes no such requirement.

Notably, in her opinion for the Court, Justice Kagan at various points stresses the fact that defendants in Kansas still can use mental illness matters as mitigating arguments at sentencing. For example:

In sum, Kansas does not bar, but only channels to sentencing, the mental health evidence that falls outside its intent-based insanity defense.  When combined with Kansas’s allowance of mental health evidence to show a defendant’s inability to form criminal intent, that sentencing regime defeats Kahler’s charge that the State has “abolish[ed] the insanity defense entirely." Brief for Petitioner 39....

If a mentally ill defendant had enough cognitive function to form the intent to kill, Kansas law directs a conviction even if he believed the murder morally justified.  In Kansas’s judgment, that delusion does not make an intentional killer entirely blameless.  See Brief for Respondent 40.  Rather than eliminate, it only lessens the defendant’s moral culpability.  See ibid.  And sentencing is the appropriate place to consider mitigation: The decisionmaker there can make a nuanced evaluation of blame, rather than choose, as a trial jury must, between all and nothing. See ibid.

Justice Breyer authored a dissenting opinion, which Justices Ginsburg and Sotomayor joined, and it gets started this way: 

Like the Court, I believe that the Constitution gives the States broad leeway to define state crimes and criminal procedures, including leeway to provide different definitions and standards related to the defense of insanity.  But here, Kansas has not simply redefined the insanity defense.  Rather, it has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.  Seven hundred years of Anglo-American legal history, together with basic principles long inherent in the nature of the criminal law itself, convince me that Kansas’ law “‘offends . . . principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” Leland v. Oregon, 343 U.S. 790, 798 (1952) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

I am disinclined to pass judgement on these opinions before I get a chance to read them closely. But because I have long thought that so-called "excuse" defenses like insanity were more properly considered at the sentencing stage than the guilt stage, I am not inherently troubled by the essential of this ruling.  That said, it is worth noting here that if and when a defendant is subject to a severe mandatory minimum sentencing term (as is often the case for more serious crimes), Justice Kagan's assertion that a "decisionmaker [at sentencing] can make a nuanced evaluation of blame"  will not really be accurate.  And so I am going to be eager to try to (over)read Kahler as a statement that allowing a decisionmaker sentencing discretion is an important Due Process consideration (and this principle also finds expression in the Eighth Amendment in cases like Lockett and Miller).

March 23, 2020 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Notable SCOTUS summary reversal on plain error review and brief statement on successive federal 2255 review

This mornings order list from the US Supreme Court has a brief summary reversal and an even briefer statement respecting the denial of certiorari.  The per curiam decision summary in Davis v. United States, No. 19–5421 (S. Ct. March 23, 2020) (available here), is a swift smack-down of the Fifth Circuit that substantively concludes this way:

In this Court, Davis challenges the Fifth Circuit’s outlier practice of refusing to review certain unpreserved factual arguments for plain error. We agree with Davis, and we vacate the judgment of the Fifth Circuit.

Rule 52(b) states in full: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”  The text of Rule 52(b) does not immunize factual errors from plain-error review.  Our cases likewise do not purport to shield any category of errors from plain-error review.  See generally Rosales-Mireles v. United States, 585 U. S. ___ (2018); United States v. Olano, 507 U. S. 725 (1993).  Put simply, there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.

In Avery v. United States, No. 19–633, Justice Kavanaugh issued this statement respecting the denial of certiorari, which wraps this way:

The text of that second-or-successive statute covers only applications filed by state prisoners under § 2254.  Yet six Courts of Appeals have interpreted the statute to cover applications filed by state prisoners under §2254 and by federal prisoners under § 2255, even though the text of the law refers only to § 2254....

After Avery’s case was decided, the Sixth Circuit recently rejected the other Circuits’ interpretation of the second-or-successive statute and held that the statute covers only applications filed by state prisoners under § 2254. Williams v. United States, 927 F. 3d 427 (2019).

Importantly, the United States now agrees with the Sixth Circuit that “Section 2244(b)(1) does not apply to Section 2255 motions” and that the contrary view is “inconsistent with the text of Section 2244.”  Brief in Opposition 10, 13.  In other words, the Government now disagrees with the rulings of the six Courts of Appeals that had previously decided the issue in the Government’s favor.

In a future case, I would grant certiorari to resolve the circuit split on this question of federal law.

March 23, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

High-profile inmate and New Jersey release order highlight another remarkable night for the coronavirus

I decided to try to mostly get off line Sunday night, and these days this means I have lots to catch up with on Monday morning.  I do not have time to provide another review of all the big prison and prisoner headlines, but these two seemed the most notable of the bunch:

The average person is likely to be most interested in the first of these stories, but here are excerpts from the second piece (which is a press release) highlighting its importance:

Late in the evening Sunday, March 22, New Jersey Chief Justice Stuart Rabner signed an order that had been negotiated by criminal justice stakeholders, including the ACLU-NJ.  All people serving sentences in county jails across the state are subject to the order, although prosecutors can challenge the release of specific individuals where they contend there exist significant risks to the person being released or to public safety.  The order could impact up to 1,000 people incarcerated in county jails.

The order does not commute people’s sentences, but instead orders their temporary release during the COVID-19 public health crisis.  At the conclusion of the emergency, judges will determine whether any sentences should be commuted.  The order takes extraordinary steps to prevent unnecessary incarceration or superfluous interactions with the criminal justice system altogether during this time, such as suspending most outstanding warrants and preventing in-person reporting to probation officers.

This order from the Supreme Court of New Jersey runs 14 pages and is available at this link.

March 23, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Who in Trump Administration is involved in "actually looking at" using executive action to release "totally nonviolent prisoners"?

At last night's press briefing, I was thrilled to see a reporter ask about whether Prez Trump was considering executive action to release some "elderly nonviolent prisoners."  This press report notes the exchange and quotes Prez Trump's full comments on the issue:

President Donald Trump said his administration was considering an executive order to free elderly, nonviolent prisoners from federal prisons amid the novel coronavirus pandemic. Trump was speaking during a Sunday evening press conference on the federal government's ongoing response to the pandemic, which has been identified as a particular threat to prison populations, where individuals are in close proximity to each other.

"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, when asked about the potential order.  "We're talking about totally nonviolent prisoners, we are actually looking at that, yes."

As readers of this blog know, I think it is more than just "a bit" of a problem to have lots of low-risk vulnerable prisoners locked up together during this pandemic. But, as the question in the title of this post highlights, I cannot help but wonder just who right now is "actually looking at" using executive action to release "totally nonviolent prisoners."

Given the significant role that Jared Kushner has played in criminal justice reform in the past (see, e.g., here and here), I would expect that he is likely to be playing some role in this discussion.  But how about high-profile folks who have had Prez Trump's ear when it comes to clemency grants like Kim Kardashian-West and Alice Marie Johnson?  Is Prez Trump and his inner circle hearing from and/or likely to listen to advice from folks at the Justice Department or the Bureau of Prisons?

Speaking of the BOP, this BOP COVID-19 webpage reports, as of early morning on March 23, that there are three inmates and three staffers who have already tested positive for the coronavirus.  It will be interested to keep an eye on those numbers as the Trump Administration continues "actually looking at" using executive action to release "totally nonviolent prisoners."

March 23, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Sunday, March 22, 2020

Might COVID-19 ultimately bring an end to the death penalty in the United States?

Upon seeing this new story, headlined "U.S. Coronavirus Lockdown to Last 10-12 Weeks, Top Trump Official Says," I am now thinking it may not be too early to start wondering if one echo effect of this global pandemic could be the functional or formal end to the death penalty in the United States.  Texas has already postponed two executions (links below), and that furthers my thinking that there is now a real possibility we might not end up having any more executions in 2020.  Moreover, I would be surprised if any new executions get scheduled for 2020 even if some existing executions dates stay in place later in the year.  Consequently, the US would seem to now be on pace for its lowest number of executions in nearly four decades.

Further, at this time of extraordinary uncertainty and disruption and social distancing, it is essentially impossible to conduct a fair and orderly capital trial.  As courts struggle to figure out how to keep functioning at all during this period, on-going capital trials should and likely will be suspended (and perhaps resolved via pleas).  New capital cases are unlikely to be brought, and I see now a real possibility that we might not end up having any more capital sentences imposed in 2020.  This DPIC fact sheet details that we had 34 death sentences in 2019; I will be surprised if we end up with more than 10 in 2020. 

We will get back to some form of normal before too long, I hope.  But the likely economic woes the country will be facing as we rebuild necessarily means we are going to need to be more efficient and effective in our use of limited government time and resources.  As those who work in capital systems know well, modern death penalty administration is the antithesis of efficient and effective use of government time and resources.  Whatever happens with the death penalty while we deal with COVID-19, I think there will be very strong arguments that this punishment is a kind of "legal luxury" that we really cannot and ought not invest resources in while we try to rebuild after COVID-19.

Prior related capital COVID posts:

March 22, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice | Permalink | Comments (3)

Saturday, March 21, 2020

More headlines provide more windows on the intersection of incarceration and the coronavirus

I now feel almost compelled to do a new post every day with the latest headlines on the coronavirus infecting prisoners and staffers.  Today's round up of stories will include a few headlines that also compel a bit of extra commentary:

Colorado: "22 inmates at Denver’s two jails under observation after showing coronavirus symptoms, none have been tested"

Georgia: "Three inmates test positive for coronavirus in Georgia as concerns grow over unprepared prison system"

Massachusetts: "First coronavirus case in Massachusetts prison confirmed by officials"

Montana: "Yellowstone County jail employee tests positive for COVID-19"

New York: "Employee in Erie County Jail Management Division tests positive for coronavirus"

National: "Police groups slam cities and states releasing jail inmates to mitigate coronavirus fears"

The first and last pieces in this round-up prompt my additional commentary.  The first piece highlights that a considerable number of inmates are exhibiting systems but have not been tested for coronavirus in Denver.  While I have highlighted in recent posts that more than a dozen states have a prisoner or staffer who has tested positive for COVID-19, I am depressingly confident that some person connected to some penal facility in every part of our nation carries the virus.  Testing everywhere has been limited, and it is all but certain that many, many inmates and staffers who have the virus just have not yet been tested.  With every state now having confirmed COVID-19 cases, surely every state's penal system has yet-to-be-tested COVID-19 cases.

The last piece highlights that at least some players in our carceral state seem to be content with the risk that any jail or prison sentence could turn into a possible death sentence thanks to COVID-19.  I can understand instinctual concerns about a mass release of the most dangerous of all convicted offenders, but most persons in local jails are by definition not among the most dangerous convicted offenders.  And with research suggesting that almost "40 percent of the U.S. prison population — 576,000 people — are behind bars with no compelling public safety reason," I sure wish it was not a pipe-dream to expect all police and prosecutors to be working together with public health and criminal justice advocates to move home all those who are now incarcerated, but not a threat to public safety, and yet facing a unique and unjust danger behind bars.

Prior coronavirus posts on jails and prisons:

 

UPDATESunday morning often is a time I try to get off-line, but this morning I cannot avoid these latest ugly new headlines:

"Top official says New York City coronavirus jail outbreak is a crisis, dozens infected"

"First federal inmate tests positive for coronavirus"

Pennsylvania: "Three inmates, five employees infected at county prison"

March 21, 2020 in Prisons and prisoners | Permalink | Comments (2)

"Communicating Punishment"

The title of this post is the title of this notable new paper authored by Marah Stith McLeod just posted to SSRN. Here is its abstract:

Does it matter whether convicted offenders understand why they are being punished? In the death penalty context, the Supreme Court has said yes; a prisoner who cannot understand the state’s reasons for imposing a death sentence may not be executed.  Outside the capital context, the answer is less clear.  This Article focuses on why and how states should help all offenders make sense of their sanctions, whether imposed for retribution, for deterrence, for incapacitation, or for rehabilitation.

Judges today sometimes try to explain sentences to criminal offenders so that they know the purposes of their suffering. But judges are busy, defendants are not always interested, and the law often treats such explanations as unimportant or even unwise.  Legislatures, moreover, rarely convey the purposes of statutory penalties, plea bargaining obscures the reasons for punishment, and the experience of punishment does not always reflect its social aims.

Scholars and critics of American criminal justice tend to pay little attention to these deficits.  Perhaps explaining individual sentences seems unimportant compared to the larger effort to humanize and rationalize penal policy.  In fact, however, the two are intertwined.

Communicating the reasons for punishment humanizes offenders by engaging with them as reasoning beings worthy of society’s continued concern — not as unreasoning animals simply to be harnessed or caged. The process of articulating punishment goals also can rationalize sentencing by reducing error, bias, and excess.

We can build a legal culture that respects offenders and advances punishment rationality by communicating the reasons for criminal sanctions. Legislatures can clarify the purposes of statutory penalties, prosecutors can explain how sanctions based on plea deals serve legitimate goals, judges can spell out the social objectives of sentences in terms that offenders can understand, and prison and probation authorities can convey sentencing rationales during the experience of punishment itself.

I had the honor and pleasure of reading an earlier draft of this paper as part of an AALS event, and upon first read I considered this piece a very important contribution to the literature.  A few months later, amidst a global pandemic, I think it even more important to consider how decisions in the criminal justice system communicate that offenders are still "worthy of society’s continued concern."

March 21, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Noticing potency of our culture of death as Denver capital trial moves forward amidst global pandemic

Those of a certain age can recall a time in which certain politicians regularly preached about the importance of promoting a "Culture of Life."  As one who follows closely the administration of the death penalty in the US,  I have long been inclined to derisively lament what I called a "culture of death" too often leading too many courts and other legal actors to devote, in my view, too much of their scarce resources to capital cases.  (I wrote a 2008 article on the topic focused particularly on the Supreme Court: "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'.")

These thoughts all came to mind today in these fraught times upon seeing this local article from Denver headlined "Court will not test potential jurors for coronavirus in Adams County death penalty case."  Here are the remarkable particulars:

A high-profile death penalty trial in the killing of an Adams County Sheriff’s deputy is going forward despite defense attorneys’ concerns for the health of their client, jurors and court personnel during the novel coronavirus pandemic.  Public defenders for Dreion Dearing, 24, argued in court filings that jury selection should not go on as scheduled Friday without screening and testing procedures for the virus in place for prospective jurors.

Dearing is accused of fatally shooting sheriff’s deputy Heath Gumm, 31, during a January 2018 chase.  He is charged with first-degree murder and faces the death penalty if convicted, despite the state legislature’s vote to repeal the death sentence in cases filed on or after July 1.  The bill has yet to be signed into law by Gov. Jared Polis.  The repeal would not apply to Dearing’s case even if Polis signs the bill, which he is expected to do.

Adams County District Court Judge Mark Warner denied the defense’s request for testing Thursday in part because the 17th Judicial District Court has already taken a variety of precautions, including cancelling most proceedings and ordering those who show symptoms or think they may have been exposed to COVID-19 not to come to the courthouse. Chief Judge Emily Anderson also ordered that people in the courthouse be allowed to wear masks and gloves and carry hand sanitizer.

“Based on the foregoing and the reasons set forth on the record on March 18, 2020, the Court will deny the Defendant’s requests concerning individual virus screening of prospective jurors,” Warner wrote in an order filed Thursday, adding that he would have court staff monitor jurors for potential infection and alert any prospective jurors who might have been exposed to the virus if such exposure is discovered. Jury selection will continue as planned on Friday, Warner wrote in his order. Already, jurors have been called to the courthouse in groups of 250 to complete questionnaires, and public defenders have raised concerns about the closeness of those prospective jurors and the possibility that the novel coronavirus is unknowingly spreading among the groups.

“We remain seriously concerned that the court has exposed, at this point, 1,700 people to a virus and we believe a doctor or medical professional needs to tell us how we can safely proceed,” Maureen Cain, director of legislative policy and external communications for the Colorado State Public Defender’s office, said Thursday.

The process to select the 18 jurors in the trial will begin in earnest Friday, despite a request from the district attorney’s office that the proceedings be moved to April 6, which the defense objected to. The trial is expected to last for weeks.

Despite the fact that the President's Coronavirus Guidelines urges all of us to avoid social gatherings "in groups of more than 10 people," it seems that trying to make sure a defendant can be condemned to death is thought so important that we have to bring together nearly 2000 prospective jurors in groups of 250.  What?!!?!?!?   

If this was going on in Texas (where, notably, two scheduled executions have been postponed as noted here and here), I suppose I could wrap my head around the eagerness for capital business as usual despite a global pandemic.  But as the article above highlights, death penalty repeal legislation was passes earlier this year in Colorado, which means it is extraordinarily unlikely the defendant here would get a death sentence or face execution even if convicted.  So, in the pursuit of a capital verdict that will not even be worth the paper it is written on, this court is prepared to expose hundred of people to a deadly virus.  Got it.

March 21, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1)

Friday, March 20, 2020

Still more reports of growing numbers of prisoners and staffers testing positive for COVID-19

In this post yesterday, while noting that criminal justice and public health experts have known for some time now that the coronavirus epidemic would made its way to prisons and jails, I flagged some early reports of prisoners and prison staffers testing positive for COVID-19 in multiple states and around the world.  A day later, unsurprisingly, I have noticed many more reports of positive tests all over the US map, and I am sure this is NOT a comprehensive list:

Federal: "First ICE Employee Tests Positive for Coronavirus"

Alabama: "Alabama Department of Corrections employee tests positive for coronavirus"

California: "First Two Coronavirus Cases Confirmed at California Prisons"

Indiana: "Hancock County jail staff member tests positive for COVID-19"

Michigan: "Second Michigan Department of Corrections employee tests positive for coronavirus"

Pennsylvania: "Delaware County prison employee tests positive for coronavirus"

Washington: "Port Orchard jail officer tested positive for COVID-19 virus, Kitsap Sheriff’s Office says"

Wisconsin: "Inmates quarantined, prison medical workers sent home after doctor tests positive for coronavirus"

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

Federal Defenders urge Justice Department to take specific immediate steps in response to coronavirus outbreak

I received this morning a copy of a seven-page letter sent yesterday by the Federal Public & Community Defenders to Attorney General William Barr and other Justice Department officials.  That letter (dated March 19, 20202) can be downloaded below, and here is how it started (with footnotes omitted):

We write on behalf of the Federal Public and Community Defenders.  At any given time, Defenders and other appointed counsel under the Criminal Justice Act represent 80 to 90 percent of all federal defendants because they cannot afford counsel.

The COVID-19 global pandemic has turned our nation’s jails and prisons into ticking time bombs.  These jails and prisons do not provide adequate medical care in the best of times. Many prisons and pretrial detention facilities are dramatically understaffed, and populated by individuals who are older and medically compromised.  Today, the Bureau of Prisons (BOP) confirmed that two staff members were presumed positive for COVID-19, marking the first possible cases in the federal prison system.  They are surely not the last. As BOP has itself acknowledged, the risks of the rapid transmission of contagion in the tight quarters of prisons and jails present major challenges in keeping inmates and staff safe and healthy.  This stark reality has been widely recognized.

Lowering the population of prisons and jails is the simplest and most effective way to disrupt the transmission of COVID-19.  Our clients and other incarcerated individuals — along with the correctional officers, attorneys, and contractors who spend their days moving between prisons and the public — are in grave and imminent danger.

We urge you to use existing authority to take immediate and decisive action to both reduce the number of people entering federal detention and release individuals who are already incarcerated.  Failure to do so may well be a death sentence for many.

It is imperative that the Department of Justice immediately take the following two steps:

1. Direct all United States Attorneys’ Offices to minimize arrests, decline to seek detention of individuals at their initial appearance in court and consent to the release of those already detained except in cases involving a specific and substantial risk that a person will cause bodily injury to or use violent force against the person of another; and

2. Direct BOP to utilize its existing authorities under the First Step Act and Second Chance Act to maximize the use of community corrections and compassionate release.

Download 20200319--Letter to AG Barr et al. re COVID-19

March 20, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (1)

Texas Court of Appeals stays a second execution for 60 days due to COVID-19

As reported in this local piece, headlined "Texas Court of Criminal Appeals stops another scheduled execution because of the coronavirus," it seems that the coronavirus outbreak has now clearly created a de facto moratorium on executions in at least one significant state.  Here are the basic details:

A Texas court has stopped a second execution because of the new coronavirus that has swept through the state and world.

The Texas Court of Criminal Appeals issued a stay Thursday for next Wednesday’s scheduled execution of Tracy Beatty, a 59-year-old man convicted more than 15 years ago of killing his mother. Earlier this week, the same court halted the execution planned Wednesday for John Hummel for the same reason.

“We have determined that the execution should be stayed at the present time in light of the current health crisis and the enormous resources needed to address that emergency,” the court said in the order Thursday. The court’s stay lasts for 60 days, after which a new execution date can be set.

Beatty’s attorney filed a motion to halt his upcoming execution shortly after the court stayed Hummel’s execution Monday, citing the “unprecedented proportions” of the pandemic....

As in Hummel’s case, prosecutors were opposed to stopping the execution, however. Smith County District Attorney Jacob Putman said in a filing that COVID-19, the disease caused by the coronavirus discovered in December 2019, has not been shown to impact the state’s ability to carry out an execution. “There has been no evidence that the ‘enormous resources needed to address that emergency’ will also include the handful of TDCJ personnel who will carry out Beatty's execution,” he wrote.

Seven other executions are scheduled in Texas through September, with two set in April.

Given the CDC has urged all of us to avoid gatherings of more than 10 people for the next eight weeks, I would expect April and even May execution dats to also get postponed in this way. And if we are not getting back to normal by May, it will be interesting to see if still further executions get delayed due to the on-going pandemic.

Prior related post:

March 20, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, March 19, 2020

"'Complete chaos': How the coronavirus pandemic is upending the criminal justice system"

The title of this post is the title of this lengthy new USA Today piece. Here are just a few excerpts:

Claramary Winebrenner had a difficult choice to make: keep two pregnant inmates in jail where they might contract coronavirus, or release them knowing they’ll be a danger to themselves and to others.

Both inmates have long histories of methamphetamine abuse. One, who's six months pregnant, has no family. She'll be high in two days if left on her own, said Winebrenner, the prosecutor in rural DeKalb County in Indiana. Under normal times, keeping them incarcerated would have been the easy choice for Winebrenner. But these aren’t normal times.

The coronavirus pandemic has upended the day-to-day operations of the criminal justice system, raising significant questions about what incarceration and access to justice looks like as the virus reaches all 50 states and the District of Columbia.

Everybody, from judges to defendants, now confronts a stark reality. Jury trials have been suspended in more than two dozen states, the District of Columbia and the U.S. Virgin Islands, as well as in dozens more localities. Courthouses have either been restricted from the public or completely shut down. Judges, forced to ensure that the justice system does not grind to a screeching halt, have prioritized more urgent cases, with some holding hearings via video or telephone.

This means defendants who enter the criminal justice system will have to stay there longer, which could raise serious questions about civil liberties and constitutional rights to a speedy trial. Jo-Ann Wallace, president and chief executive of the National Legal Aid and Defender Association, said this also means defendants who are awaiting trial in jail could lose access to their homes, family and jobs — "the cascading effect" that destabilizes livelihoods.

Similar disruptions are happening in federal courts that hear some of the country’s most controversial and consequential cases. The Supreme Court postponed oral arguments for the first time in a century. The executive committee of the Judicial Conference, the policy-making body for federal courts, is asking Congress for $7 million in additional funds to pay for mental health and drug treatments that have become costlier because they must now be given individually instead of in groups.

The country's notoriously backlogged federal immigration court system is now largely at a standstill. Te Justice Department closed several courts and postponed hearings of those who are not in custody.

Meanwhile, prosecutors like Winebrenner face an uneasy, immediate question: whether to release defendants they believe should be incarcerated to avoid viral outbreaks in jails, where close quarters and overcrowding would speed the spread of the deadly and highly contagious COVID-19. “Let’s just say we’ve kind of moved the bar up. We have to get some people out of there … and bust through some rules that are very good rules for some reasons, but in this situation, some people need to get out,” she said....

For Derwyn Bunton, the chief public defender in New Orleans, the worst-case scenario is clear: Arrests will continue as if everything is business as usual, clogging up court dockets that are not moving. Reluctance to release nonviolent offenders will overcrowd jails. Defendants, still innocent until proven guilty, will sit there indefinitely. The epidemic will make its way inside facilities, where hygiene products are limited and social distancing isn't an option.

Bunton has pushed for not arresting people over minor offenses and releasing inmates accused of nonviolent crimes to avoid that worst-case scenario. But he’s been met with resistance from law-enforcement officials who say bending the rules would result in lawlessness.

Such is the conundrum in jurisdictions across the country, where defense attorneys and prosecutors with competing interests are forced to find common ground to help stem the public health crisis. “We can maintain public safety without jeopardizing public health,” Bunton said. “The cost to the community of keeping those folks in jail on nonviolent or technical violations is outweighed by the need to prevent the spread of the virus.”...

Rob Sanders, the prosecutor in Kenton County in Kentucky, said he’s seeing far more people being released from jail than at any other time in his 21 years in public service. Nearly every inmate accused of nonviolent offenses is being considered for release, he said. That includes not only defendants facing minor drug and property crimes, but also felons caught with guns and those accused of drug trafficking. “I’m apprehensive. Certainly, we don’t want to make any law-abiding citizens get victimized by someone who might otherwise have been incarcerated. That’s my biggest concern,” he said.

Sanders also fears that many defendants will not show up to hearings once court operations are back to normal. But he also acknowledges that these are unprecedented times. Taking a chance by releasing certain inmates “is something we need to do,” he said.

March 19, 2020 in Impact of the coronavirus on criminal justice | Permalink | Comments (1)

Growing reports of growing numbers of prisoners and staffers testing positive for COVID-19

Criminal justice and public health experts have known for some time now that it was only a matter of time before the coronavirus epidemic made its way to prisons and jails.  Here are just some headlines I have seen showing surely just some of the locations where these issues are very real right now:

In the United States

Internationally

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

Wednesday, March 18, 2020

"ACLU Demands the Release from Prisons and Jails of Communities Vulnerable to COVID-19"

The title of this post is the title of this new ALCU press release.  Here are excerpts:

Today, the national American Civil Liberties Union and 14 ACLU affiliates sent letters to the federal government and state and local officials across the country outlining immediate actions to take to protect those involved in the criminal legal system, who are particularly vulnerable to the pandemic.  They are asking to ensure that system actors are responding to recommendations put forth by public health experts, specifically calling for the immediate release from prisons and jails of communities identified by the Centers for Disease Control and Prevention (CDC) as vulnerable, as well as people currently in pretrial detention, to prevent a public health crisis.

This series of recommendations addresses a number of stakeholders in the criminal legal system. In the letters, the ACLU is calling on:

  • Governors to grant commutations to anyone identified by the CDC as particularly vulnerable whose sentence would end in the next two years, to anyone whose sentence would end in the next year, and to anyone currently being held on a technical (crimeless) supervision violation.
  • Police to stop arresting people for minor offenses and in other circumstances issue citations or desk-tickets in lieu of arrest so that people can return home, balancing the need for arrest with the overwhelming public safety concerns presented by coronavirus.
  • Prosecutors to avoid cash bail requests and move for release in all but the very few cases where pretrial detention is absolutely the least restrictive means necessary to ensure a person’s return to court. They should also institute a review-and-release protocol in cases which bail was already sought in the past 30 days and the person is currently detained.
  • Judges to allow anyone with an open criminal case and upcoming hearing the chance to voluntarily waive that hearing or conduct that hearing via telephone or video conference.
  • Sheriffs to ensure that facilities are as empty, safe, and clean as possible and that hygiene products are free and readily available to incarcerated people and staff.
  • Probation and Parole Agents and Parole Boards to expedite and expand release opportunities for incarcerated people, reducing the population in prisons as recommended by health experts. Boards should institute a presumption for release for all people who have a parole hearing scheduled in the next two years....

Additionally, the ACLU has asked the U.S. Department of Justice and Federal Bureau of Prisons to heed the recommendations of public health professionals and release those most vulnerable to coronavirus and COVID-19 and to diminish intake of others to reduce overcrowding. These agencies should work with the Congress and the Executive to utilize all means available at the federal level, including clemency, to keep and send people home.  With these actions, federal, state, and local officials can create a culture in which transparency, safety, and the health of all people is the paramount concern.

The ACLU's letter to state and local officials is at this link

The ACLU's letter to the U.S. Department of Justice and the Federal Bureau of Prisons is at this link

March 18, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Are federal prosecutors getting any guidance from Main Justice about federal sentencing policy and practice amidst coronoavirus pandemic?

The latest standard data from the US Sentencing Commission, specifically its FY19 Fourth Quarterly Sentencing Update which was published on January 8, 2020, details that in Fiscal Year 2019 there were over 75,000 federal criminal cases sentenced in the federal district courts.  Given that there are roughly 250 business days in a year, this year-end number converts to an average of 300 federal sentences imposed every day, 1500 federal sentences imposed every week, 6200 federal sentences imposed every month in US courts nationwide.  Of course, those data reflect normal times, and these are obviously not normal times.

I am certain many federal sentencings that were scheduled for the current week have been postponed.  But I also have a sense that some, maybe many, federal sentencings have gone forward despite the fact that formal and informal lockdowns are taking place nationwide.  As but one example, this new FoxNews piece reports that "Former Rep. Duncan Hunter, R-Calif., was sentenced on Tuesday to 11 months in prison and three years of supervised probation after pleading guilty to a single corruption charge."  This AP piece about the sentencing notes:

The hearing was held despite many state and federal courts across California and the country all but shutting down or holding hearings by teleconference to curb the spread of the new coronavirus. The judge said the full courtroom did not exceed 50 people, complying with federal recommendations....

Hunter was ordered to report May 29 to a prison in an undisclosed location in the western United States. The judge also ordered Hunter to participate in a drug and alcohol program. He will be under supervised release for three years.

Of course, the President's Coronavirus Guidelines actually say to avoid social gatherings "in groups of more than 10 people," though a sentencing hearing is obviously not really a social gathering.  I do not know if Hunter's lawyers sought a delay in his sentencing hearing yesterday, but I do know it would be malpractice if they do not seek a delay in his prison report date if we have not gotten the spread of the coronavirus under control in the next few months.  And if I was currently representing a person who was at home and had an upcoming federal sentencing, I would likely be seeking a postponement simply to give me and my client more time to prepare for sentencing in light of all the uncertainty created by a global pandemic.

Because I have not yet seen or heard of any guidance emerging from the US Department of Justice on whether and how federal sentencings should proceed during these uncertain times, I am assuming that individual US Attorney offices (and likely individual federal prosecutors) are making up their own "rules" about all sorts of challenging new issues regarding federal sentencing practice amidst this coronoavirus pandemic.  Should federal prosecutors generally agree to or generally oppose requests for postponements?  Should it matter whether the defendant making such a request is currently in federal custody?  Should prosecutors themselves be seeking postponements and for how long?  Should prosecutors agree to or oppose proposals to conduct sentencing "online" (whatever that might mean)?

Question of sentencing practice are immediate, but those of sentencing policy are even more challenging.  Should federal prosecutors generally agree or generally oppose claims that the general pandemic is a proper consideration under 18 U.S.C. § 3553(a)(2) in all cases?  How about if a defendant can make arguments based in being a special caretaker for high-CDC-risk relatives?  How about if a defendant has history as a medical professional or law enforcement officers and he says he is eager to do community service during this period of extreme need for certain kinds of national service?

Because I could rattle off literally dozens of hard questions of federal sentencing policy and practice amidst the coronoavirus pandemic, I suppose I am not too surprised that Attorney General William Barr and other senior members of the Justice Department have not yet issued public statements about how these kinds of matters ought to be addressed in federal courthouses around the country.  But I sincerely hope they are working on this ASAP (with advice from health professionals), especially because these matters now really do involve life-and-death issues.

March 18, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Mid-week round up of some stories on impact of the coronavirus on criminal justice, crime and punishment

Just a few days since my last few round-ups of headlines here (March 12) and here (March 13), there are now far too many stories about the impact of the coronavirus on criminal justice, crime and punishment to even begin to cover this part of our new world order with any comprehensiveness.  But here are a trio of pieces and commentaries on various fronts that stood out to me as I reviewed some headlines:

__

__

UPDATE: Because it has some specific federal prison reform recommendations, I wanted to add here this new FoxNews commentary headlined "Tolman and Harris: Coronavirus crisis requires this action be taken for elderly prison inmates." Here is an excerpt:

Even before we were hit by an almost unprecedented health crisis, the Office of the Inspector General found that the Bureau of Prison (BOP) facilities lacked the appropriate staffing, and provided limited training, to care for aging inmates. These problems will only get worse during this pandemic as prisons struggle to maintain staffing levels, manage social distancing protocols among the general population, and quarantine and treat the sick.

Older inmates (age 60 and older) are far and away the most expensive to incarcerate, mostly due to their medical needs. In fact, that same Inspector General’s report cited BOP data showing that facilities with the highest percentages of aging inmates spend five times more per inmate on medical care, and 14 times more per inmate on medication, than facilities with the lowest percentage of aging inmates.

In 2013, the cost of caring for aging inmates at the federal level topped $880 million, roughly 20 percent of the federal corrections budget. Now imagine the cost, societal and financial, once coronavirus infects a jail or prison, which is just a matter of time.

Given the current crisis, we are hopeful President Trump would work diligently to ensure his administration facilitates the transfer of these elderly, sick and vulnerable people to home confinement as soon as possible. Similar to a nursing home, the disease will spread through these facilities like fire through a dry barn, endangering corrections officers, prison staff, healthcare workers and the surrounding community, and sending costs soaring well past $1 billion.

The Elderly Home Detention Pilot Program — re-authorized and expanded as part of the bipartisan First Step Act — allows nonviolent federal prisoners to be transferred to home confinement if they are 60 years old or older and have served two-thirds of their sentence.  Now, Congress is considering HR 4018, a measure that builds on already-enacted bipartisan reforms, allowing the two-thirds calculation to include good-time credits, meaning additional elderly prisoners would be eligible for home detention.

In addition to this technical fix, we would argue that this emergency legislation warrants lowering the 60-year threshold to 55, the age at which recidivism rates drastically decline.  We would further advocate for the transfer of any inmates that are either terminally ill (as the compassionate release provision already allows) or have a medical condition that makes them more susceptible to contracting COVID-19.  To be clear, the Bureau of Prisons would still have ultimate control over whether an inmate would be eligible, and wouldn’t free people like Bernie Madoff, who are serving life sentences.

Given the current crisis, we are hopeful President Trump would work diligently to ensure his administration facilitates the transfer of these elderly, sick and vulnerable people to home confinement as soon as possible. In fact, an emergency proposal should give the BOP the flexibility to suspend its own regulations and transfer inmates as soon as possible, and/or give inmates the opportunity to take their request for transfer to home confinement directly to a judge....

The Senate is poised this week to pass additional measures to help families and businesses suffering the economic costs of this crisis. That package should include simple measures to protect people’s health by transferring deserving elderly and sick prisoners to home detention as soon as possible.

March 18, 2020 in Impact of the coronavirus on criminal justice | Permalink | Comments (1)

Tuesday, March 17, 2020

Resources from the Prison Policy Initiative and the Appeal (and others) to track and advance responses to the COVID-19 pandemic

A helpful colleague from the Prison Policy Initiative sent me the following email with links to various resources for tracking and advancing responses to the on-going coronavirus epidemic:

The Prison Policy Initiative just released a new resource for writers covering COVID-19.  We’re now tracking which prisons and jails are taking appropriate steps to slow the spread of the coronavirus.  Check out this page, which we’ll be updating periodically.

On a slightly different topic: We’ve just published a template letter that local activists can use to pressure jails — most of which are currently suspending in-person visits — to help families stay connected by making phone and video calls free. See our letter at this link.

If you’re researching COVID-19 and our pages don’t have what you need, try this excellent resource page curated by The Justice Collaborative.   

UPDATE: I also receive a note for the folks at The Appeal about some terrific resources that the Appeal has put together to help track what local governments are actually doing or announcing (especially around prisons/jails):

The Coronavirus Response: Spotlight On State & Local Governments

This Tool Can Track Changes To Incarcerated Populations Amid The Coronavirus Pandemic

ANOTHER UPDATE: Steve Sady, Chief Deputy Federal Public Defender in Oregon, sent along this link to his helpful memo titled "Law in the Time of Corona: Federal Defense Edition." The memo reviews in short order how at "every stage of the criminal process," federal defense attorneys can and should seek to evaluate what they can do for clients past and present. Here are excerpts from some of the sentencing and prison discussions:

At sentencing, we can argue that judges should consider the safety of the client and others in prison in determining whether and how long to incarcerate. Vulnerability to physical attacks was recognized in the pre-Booker era when the Supreme Court approved a Second Circuit case that allowed departure under the mandatory Guidelines based on “potential for victimization” due to the defendant’s “diminutive size, immature appearance, and bisexual orientation.” Koon v. United States, 518 U.S. 81, 107 (1996) (citing United States v. Lara, 905 F.2d 599 (2d Cir. 1990)). Vulnerability to coronavirus, especially for our sick, disabled, and aged clients, seems like a direct analogy to vulnerability to victimization by others in prison and a reason for non-custodial or reduced sentences....

For prisoners serving a sentence who are within or approaching one year of their projected release date, we should be seeking maximum community corrections so they are no longer adding to the crowded and dangerous prisons. Under 18 U.S.C. 3624(c), Congress expanded the available time in community corrections to up to one year, with six months or ten percent, whichever is less, in home confinement....

The new compassionate release provisions of the First Step Act permit the sentencing court to reduce sentences based on “extraordinary and compelling reasons” under 18 U.S.C. § 3582(c)(1)(A)(i) [background here]. The prisoners eligible for the reduction include the most vulnerable to coronavirus: the sick, the disabled, and the aged. In [one recent] opinion granting time served for an old lifer who had done 30 years, the judge considered as one of the factors favoring release physical vulnerability to attack (here). The same logic applies to vulnerability to coronavirus, both as a factor making the situation “extraordinary and compelling” and as a factor under 18 U.S.C. 3553(a) why the motion should be granted. We should be thinking creatively about other jurisdictional hooks for obtaining a second look at the sentences our clients are serving.

YET ANOTHER UPDATE: From the always terrific Marshall Project, a coronavirus archive of stories, including a resource titled "Tracking Prisons’ Response to Coronavirus"

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

New letter from Prez Trump's former lawyer, Michael Cohen, seeking sentence modification citing this blog's coronavirus coverage

Via my pals on Twitter, I just learned that Michael Cohen's lawyer, Roger Bennet Adler, has today filed this letter to support his pending application for sentence modification so that Cohen can finish serving his remaining time (about 20 months) on home confinement rather than in a federal prison.  This letter is itself only a page long, but it also includes a reference to, and an attachment of, this blog post I wrote yesterday about the need and importance of all federal officials taking swift measures to try to limit the spread and harm of the coronavirus among the federal prison population.

Kudos to Mr. Adler, and I hope all defense lawyers (and prosecutors and judges and everyone else) will feel free to use any and all resources and materials I am assembling here.  No need to ask, no need to wait, take whatever you need and make good (responsible) use of it!

Prior coronavirus posts:

Prior Michael Cohen sentencing posts:

March 17, 2020 in Impact of the coronavirus on criminal justice, On blogging, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

NYC Board of Correction calls on city to begin the process of releasing certain prisoners ASAP in response to COVID-19

I just saw this notable new statement from the New York City Board of Correction. Here is how it gets started:

The New York City Board of Correction, the independent oversight Board for the City’s jail system, is calling on the City to work with all its criminal justice partners to: (1) immediately remove from jail all people at higher risk from COVID-19 infection; and (2) rapidly decrease the jail population. While Department of Correction (DOC) and Correctional Health Services (CHS) staff continue to perform heroic work to prevent the transmission of COVID-19 in the jails and maintain safe and humane operations, the City must drastically reduce the number of people in jail right now and limit new admissions to exceptional circumstances. The City can follow the leads of Los Angeles County and Cuyahoga County (Ohio) which have already begun to release people to minimize a potential outbreak. The City must begin this process now. The City’s jails have particular challenges to preventing disease transmission on a normal day and even more so during a public health crisis.

Significantly fewer people in jail will limit the spread of COVID-19 infection among people in custody and those who work in the jails, minimize the number of people in custody who will need medical care, decrease the density of housing areas for people who remain in jail, and allow New Yorkers to maintain connections with and support from their loved ones. DOC and CHS, along with City partners, must work with the Chief Judge of New York State, Governor Cuomo, District Attorneys, and the Defense Bar to begin identifying and releasing people this week, prioritizing:

  • People who are over 50;
  • People who have underlying health conditions, including lung disease, heart disease, diabetes, cancer, or a weakened immune system
  • People detained for administrative reasons (including failure to appear and parole violations); and
  • People serving “City Sentences” (sentences of one year or less).

Prior coronavirus posts:

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

"Appeals Court Delays Texas Execution Due To Coronavirus Outbreak"

The title of this post is the headline of this notable story out of Texas concerning another remarkable echo effect of the global pandemic we are facing. Here are the details:

The outbreak of the novel coronavirus prompted the top Texas criminal appeals court on Monday to stay for 60 days the scheduled execution of a man condemned for killing his family.

The Texas Court of Criminal Appeals rejected all grounds of John William Hummel’s appeal but said it would postpone the scheduled Wednesday execution “in light of the current health crisis and the enormous resources needed to address the execution.”

Hummel, 44, was convicted in 2011 of capital murder in the December 2009 fatal stabbing of his pregnant wife, Joy Hummel, 45, and fatal bludgeoning of his father-in-law, Clyde Bedford, 57, with a baseball bat. Evidence showed he also used the bat to beat to death Jodi Hummel, his 5-year-old daughter, before he torched their home in the Fort Worth suburb or Kennedale. However, he was only convicted of capital murder in the deaths of his wife and father-in-law....

One of the issues that Michael Mowla, Hummel’s attorney, had raised in his efforts to stop the execution was a concern that the process involved with putting Hummel to death “may itself assist in spreading COVID-19.”

A number of people either take part or witness the execution in the death chamber at the state penitentiary in Huntsville, including correctional officers, attorneys, physicians and family members or friends of the inmate and of the victims. “Gathering all these people in one location presents a substantial risk of transmission of COVID-19/Coronavirus if anyone is infected,” Mowla wrote in a petition to the appeals court last week....

The Texas Department of Criminal Justice had been prepared to carry out the execution as officials had instituted a screening process for people who would have witnessed it, said agency spokesman Jeremy Desel. Execution witnesses would have been subject to the same screening that department employees have to go through before entering a prison unit. The screening involves questions based on travel, potential exposure to the coronavirus and health inquiries, Desel said.

The death chamber is not a heavy traffic area and is completely isolated from all parts of the prison in Huntsville, Desel said. “But it is thoroughly cleaned, consistently and constantly. We are taking precautions throughout the prison system,” he said.

Notably, according this Upcoming Executions page on the Death Penalty Information Center's website, Texas has five other executions scheduled over the next 60 days. I would predict that, unless we get some very good news about the spread of COVID-19 very soon, all these other executions would appear very likely to be postponed. In addition, I would be surprised if Texas or any other state were to start scheduling any new executions anytime soon.

This DPIC fact sheet details that we have so far five executions in the United States this year. As of this writing, I am thinking we might not end up having any more executions in 2020, which would mean the country would have its lowest number of executions since 1983.

March 17, 2020 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Monday, March 16, 2020

When and how will federal authorities start systematically modifying federal sentencing and prison realities in response to COVID-19 outbreak?

I have previously already blogged here (March 3) and here (March 12) and here (March 13) on the potential impact of the coronavirus on prisons and jails, but it seems the world changes a few dozen times each day when it comes to this global pandemic.  And now it is obvious that sentencings and prisons are already being impacted dramatically, with this Crime Report piece providing just some of the details.  The piece is headlined "Corrections Authorities Eye Inmate Release, Halts in Visits, to Prevent Virus Spread," and here are excerpts:

Authorities have begun focusing on America’s overcrowded prisons and jails — environments where “social distancing” can be problematic — as critical danger points for the spread of Covid-19.  Actual infections and fear of the coronavirus have begun to grind the scales of justice to a halt in pockets of the U.S. under states of emergency as judges and lawyers struggle to balance the constitutional rights of defendants against the concerns that the public institutions could unwittingly become contamination sites, CNN reports.

“The whole system is coming to a halt,” said New York City criminal defense lawyer Gerald Lefcourt. “I’m sure everybody is wait-and-see at the moment,” he added, saying he wouldn’t be surprised if prosecutors and defense lawyers seek to resolve cases outside of a trial, either through plea bargains or dropped cases....

In Ohio, dozens of inmates were released from jail sooner than expected to help reduce the population inside the Cuyahoga County jail, as a way to minimize potential virus outbreaks inside jails. The Ohio county judges held a rare court session to hear cases involving low-level, non-violent offenders on Saturday, according to Channel 11 News. Some 38 inmates were released from the Cuyahoga County jail after they appeared in court.

In Michigan’s Kent County, bond and sentence modifications are being discussed to allow some inmates to be released. “We are taking precautions, like everyone else, and making arrangements to deal with what is presented to us,” Kent County Sheriff Michelle LaJoye-Young told ABC 13.

And in Minnesota, the state’s public defender recommened that nonviolent offenders should be released from jail because of the threat of coronavirus. “I am no doctor, but I think it’s better for them to be on quarantine at home,” said Bill Ward told the Pioneer Press on Sunday. “The request is to treat them humanely.” Two jails in southern Minnesota have each had one inmate with a confirmed case of the disease, Ward said. Diseases from the common cold to the flu spread more quickly in prisons — so coronavirus poses a greater risk for inmates.

Efforts to limit the spread of disease in the nation’s corrections systems also included suspending or curtailing visits to prisoners.

This new New York Times commentary effectively details why many working in the criminal justice arena have been thinking about this issue for some time already.  The extended piece should be read in full, and its full headline highlights the themes: "An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues: The conditions inside, which are inhumane, are now a threat to any American with a jail in their county — that’s everyone."  Here are passages:

In America’s jails and prisons, people share bathrooms, laundry and eating areas. The toilets in their cells rarely have lids. The toilet tank doubles as the sink for hand washing, tooth brushing and other hygiene. People bunked in the same cell — often as many as four — share these toilets and sinks. Meanwhile, hand sanitizer is not allowed in most prisons because of its alcohol content. Air circulation is nearly always poor. Windows rarely open; soap may only be available if you can pay for it from the commissary.

These deficiencies, inhumane in and of themselves, now represent a threat to anyone with a jail in their community — and there is a jail in every county in the United States. According to health experts, it is not a matter of if, but when, this virus breaks out in jails and prisons. People are constantly churning through jail and prison facilities, being ushered to court hearings, and then being released to their communities — nearly 11 million every year.

“We should recall that we have 5,000 jails and prisons full of people with high rates of health problems, and where health services are often inadequate and disconnected from the community systems directing the coronavirus response,” said Dr. Homer Venters, former chief medical officer of the New York City jail system. “Coronavirus in these settings will dramatically increase the epidemic curve, not flatten it, and disproportionately for people of color.”

Jails are particularly frightening in this pandemic because of their massive turnover. While over 600,000 people enter prison gates annually, there are about 612,000 people in jail on any given day. More than half of the people in jail are only in there for two to three days. In some communities, the county jail or prison is a major employer. Jail staff members are also notoriously underpaid, may not have paid sick leave and are more likely to live in apartments, in close and frequent contact with neighbors. They return home daily to aging parents, pregnant partners or family members with chronic conditions.

Our penal system should have received more comprehensive guidance and material support from the Department of Justice, far earlier in this crisis. Like much of the federal level response, it is falling short....

American officials can learn from the harrowing story of South Korea’s Daenam Hospital. In late February, South Korea had already reported more than 3,150 confirmed cases, and of these, 101 were from patients in the Daenam psychiatric ward.  Seven of these patients have now died.  All but two patients in the ward contracted Covid-19. The ward was put on lockdown, in an attempt to confine the spread of the virus. Instead, the lockdown issued was a death sentence to many inside....

Aging people who are released after serving long sentences have a recidivism rate close to zero.  Governors and other public officials should consider a one-time review of all elderly or infirm people in prisons, providing immediate medical furloughs or compassionate release to as many of them as possible.

Though this NY Times commentary makes a pitch to "Governors and other public officials," I strongly believe criminal justice advocacy groups should be focusing advocacy now toward President Trump, Congress and federal judges.  For starters, if the federal government leads with a strong proactive response, many states and localities are likely to follow suit.  And it seems there are plenty executive branch tools already available under current law ranging from (mass) clemency relief for older and at-risk prisoners, to the Justice Department and the Bureau of Prisons (BOP) recommending (mass) compassionate release or release to home confinement for older and at-risk folks or perhaps for everyone who has served, say, 75% of their prison time.

Congress can and should get involved ASAP by enacting emergency legislation that could, for example, give BOP discretion to release any and every prisoner that has been scored at low-risk under the FIRST STEP Act's new risk tools.  Or, perhaps better yet, Congress could authorize the creation of a new "emergency agency" tasked with immediately devising the most effective and humane and just way to reduce the number of persons, in both the federal system and in state systems, now seemingly subject to having a jail or prison sentence turned into a possible death sentence by COVID-19.

Federal judges can and should be proactive here as well. In addition to re-calibrating their 3553(a) sentencing analysis given the ugly new reality of prison life, judges should sua sponte reconsider any and all past denied compassionate release motions because times surely have changed.  I think every single federal prisons has an argument that the coronavirus has created ""extraordinary and compelling reasons" that warrant a sentence reduction, and I wonder if anyone has thoughts about seeking a national class action on behalf of all federal prisoners under the statutory provisions of 18 U.S.C. § 3582(c)(1)(A) in order to at least establish a baseline of eligibility for sentence modifications. 

I could go on and on, and I likely will in some coming posts.  But the title of this post asks "when and how" not "if" our normal rules will change because I sense some federal judges and prison officials are already working on COVID responses in various scattered ways -- in part because everyone realizes that it is essential for the health of federal prison workers, as well as for prisoners, for there to be smart efforts to reduce prison populations amidst this global pandemic.  At some point, these scattered efforts will become a systematic plan, I sure hope that happens sooner rather than later.

Prior coronavirus posts:

March 16, 2020 in Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, March 13, 2020

Eager for stories and thoughts on the impact of the coronavirus on criminal justice, crime and punishment

Blogging will likely be light in the coming days as I go to pick up young adults from shuttered school and figure out what online teaching is going to look like in the foreseeable future.  While I have already blogged here and here on the potential impact of the coronavirus on prisons and jails, the movement toward mass closures of all sorts raises all sorts of new issues for criminal justice administration and broader realities of crime and punishment.  Here are just a few headlines starting to speak to these kinds of issues:

Though many folks likely have much more important things to do now than comment on a blog, I would still be eager to hear stories and thoughts from readers on what they see and predict as current and potential future impacts of the coronavirus on criminal justice, crime and punishment.

March 13, 2020 in Impact of the coronavirus on criminal justice | Permalink | Comments (4)

Thursday, March 12, 2020

"Valid or Voodoo: A Qualitative Study of Attorney Attitudes Towards Risk Assessment in Sentencing and Plea Bargaining"

The title of this post is the title of this notable new paper with multiple authors now available via SSRN. Here is its abstract:

Prior research largely has explored judicial attitudes toward risk assessment in sentencing.  Little is known about how other court actors, specifically, prosecutors and defense attorneys, make use of risk information at sentencing hearings and during plea negotiations.  Here, we report a qualitative study on the use of risk assessment by prosecutors and defense attorneys in Virginia.  A prior quantitative study (n=70) pointed to a statistically significant difference in how prosecutors and defense attorneys regard the role of recidivism risk in sentencing hearings and in plea bargaining.  Based on the results of the quantitative study, we collected follow-up qualitative data via interview (n=30) to explain this unexpected difference.

Three themes emerged from the interviews: Who is the lawyer’s identified client? (With prosecutors choosing the general public and defense attorneys choosing the particular defendant); Does past behavior strongly predict future behavior? (With prosecutors being more likely than defense attorneys to believe it does); and Is the Nonviolent Risk Assessment a statistically valid tool for assessing recidivism risk? (With prosecutors and defense attorneys equally likely to believe that the tool was no more valid than their own intuitive professional experience).  Virginia is regarded as one of the leading innovators in the use of risk assessment.  Thus, as more states and the federal government adopt a risk-based approach to sentencing, studies on Virginia can provide useful guidance on the implementation process.

March 12, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Rounding up more coverage of the frightening intersection of incarceration and the coronavirus

In this post last week, I spotlight the handful of articles noting that the coronavirus outbreak could be especially bad news for prisons and jails.  Unsurprisingly, after remarkable public health developments in the US and elsewhere over the last week, the intersection of incarceration and the coronavirus is getting even more attention.  Here is just a small partial sampling of pieces:

March 12, 2020 in Prisons and prisoners | Permalink | Comments (0)

Wednesday, March 11, 2020

Fascinating work by the Marshall Project and Slate to survey "the Politics of People Behind Bars"

The Marshall Project and Slate today released a series of terrific pieces based on a "first-of-its-kind political survey" of the persons who are currently incarcerated.  Here is how this main piece, headlined "What Do We Really Know About the Politics of People Behind Bars?", gets started:

A simple question at a Bernie Sanders town hall last spring sparked a debate new to prime time: Should incarcerated people be allowed to vote? S anders said yes — his home state of Vermont (and its neighbor, Maine) are the only states to give all people in prison that right.  Later, Joe Biden said no.

Yet in a country awash in political polling, the views of those who are most affected remain a mystery: the 2.3 million people behind bars.  Do they want to vote? If given the right, who would they vote for? What issues do they care about most?  No one’s ever really asked.

This is why The Marshall Project partnered with Slate to conduct the first-of-its-kind political survey inside prisons and jails across the country.  Now that criminal justice is a campaign issue and many states are restoring voting rights to those convicted of felonies, we asked thousands of incarcerated people across the country for their opinions on criminal justice reform, which political party they identify with and which presidential candidate they’d support.  We heard from more than 8,000 people. Here’s what we found:

  • A plurality of white respondents back President Donald Trump, undercutting claims that people in prison would overwhelmingly vote for Democrats.
  • Long stretches in prison appear to be politicizing: The more time respondents spend in prison, the more motivated they are to vote, the more they discuss politics, and the more likely their opinions are to evolve.
  • Perspectives change inside prison. Republicans behind bars back policies like legalizing marijuana that are less popular with GOP voters on the outside; Democrats inside prison are less enthusiastic about an assault weapons ban than Democrats at large.
  • Political views diverged by race. Black respondents are the only group pointing to reducing racial bias in criminal justice as a top concern; almost every other group picked reducing the prison population as a top criminal justice priority.

Many respondents’ answers reflected the crucible of their own experiences—offering new insights into issues often discussed from a distance on a debate stage.

Here are links to the companion pieces:

"Millennials, Meth and Mass Incarceration: We asked incarcerated people to weigh in on the biggest issue facing the country today. Here is what they said."

"How We Pulled Off A Groundbreaking Political Survey Behind Bars: More than 8,000 incarcerated people responded."

UPDATE: These two additional article were published from this fascinating survey on Thursday:

"Trump's Surprising Popularity in Prison: Many incarcerated white people said they'd re-elect the president — if given the chance."

"For Those Serving Long Sentences, Politics is a Lifeline: Respondents who’ve spent decades behind bars were more politically engaged than their peers, but they’re also the most cynical."

March 11, 2020 in Prisons and prisoners | Permalink | Comments (0)

With death penalty repeal legislation, Colorado Gov contemplating commutations for three now on death row

This local article, headlined "Gov. Polis Supports Death Penalty Repeal, But He Has A Big Decision To Make Before Signing It," highlights the notable clemency issue facing the new Governor of Colorado. Here are the basics:

After years of debate, the era of capital punishment in Colorado is poised to end any day now with the signature of Gov. Jared Polis.  The Senate has sent over a bill to repeal the death penalty to the governor, meaning it will reach his desk any day. Once the legislature sends a bill over, he has ten days to sign or veto it, or else it becomes law without his signature.

State legislative leaders last month passed a repeal bill in historic votes, but delayed delivering it to the governor for nearly two weeks.  They decided to pause the action, according to House Speaker KC Becker, to give the governor more time to consider a weighty question: what to do about the three men currently on death row. 

The bill does not apply retroactively, leaving it in the governor's hands whether to commute their sentences to life without parole.  “I think there are a lot of discussions going on about clemency in general. And I have no idea what his plans are," Becker said Monday. “There are a lot of people reaching out to the governor about that right now.”

Late Tuesday night though, a spokesman for the governor told CPR News: “The Governor will sign the bill when it arrives and no decision has been made on any individual case."  As governor, Polis has the broad and sole authority to grant clemency in capital cases.

The topic is especially painful within the halls of the Colorado State Capitol.  Two of the state's death row inmates were convicted for the 2005 murders of Javad Marshall-Fields and Vivian Wolfe, the son and future daughter-in-law of Sen. Rhonda Fields.

Fields urged Polis to approach the question thoughtfully.  Both are Democrats.  “I really don’t have anything more to add to what’s already been said … I just hope that the governor would be strategic and thoughtful about the decisions he would be making as it relates to victims and the members that sat on those juries,” she said.

Fields said the governor should “do the right thing” by properly notifying victims’ families if he moves to commute any of the sentences.  The senator was starkly opposed to the repeal of the death penalty.

Polis has showed support for clemency.  He said in 2019 that repealing the death penalty would be “a strong indication that those who are currently on death row should have their sentences commuted to life in prison.”...

The third man on death row is Nathan Dunlap, who murdered four people in 1993 at a Chuck E. Cheese restaurant in Aurora. Former Gov. John Hickenlooper granted him an indefinite reprieve in 2013, a decision that could be reversed by a future governor.

March 11, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Harvey Weinstein sentence to (near max of) 23 years in state prison

As reported in this Hill article, "Harvey Weinstein — for decades considered one of Hollywood's most prominent and powerful producers — has been sentenced to 23 years in prison in his New York sexual assault trial." Here is more:

The prison term handed down by New York Supreme Court Judge James Burke was slightly less than the maximum sentence of 29 years that Weinstein faced.

In an unexpected move, Weinstein spoke ahead of his sentencing, reportedly telling the court he had "deep remorse." But, in an apparent reference to the "Me Too" movement, he said, "I think men are confused about all of this ... this feeling of thousands of men and women who are losing due process."...

Weinstein, 67, appeared in the New York courtroom after being convicted last month on two of five counts of sexual misconduct. While he was found guilty of a criminal sexual act and third-degree rape, he was acquitted on the most serious charges against him. Weinstein had faced up to four years in prison on the rape charge, and between five and 25 years for the criminal sexual act charge.

“We thank the court for imposing a sentence that puts sexual predators and abusive partners in all segments of society on notice," Manhattan District Attorney Cy Vance said in a statement. Weinstein's accusers, Vance said, "refused to be silent, and they were heard." "Their words took down a predator and put him behind bars, and gave hope to survivors of sexual violence all across the world," he said.

Donna Rotunno, Weinstein's attorney, said after the sentencing that she was "overcome with anger" at the term handed down. "Mr. Weinstein never really had a fair shake from day one," Rotunno told reporters, saying his defense team planned to file an appeal....

More than 80 women — including actresses Eva Green, Lupita Nyong'o and Uma Thurman — have accused Weinstein of sexual misconduct, ranging from harassment to rape. Weinstein had maintained his innocence, saying all the encounters were consensual.

Sexual assault allegations against Weinstein in 2017 — and a flood of public allegations of sexual misconduct against many in the entertainment industry that followed — helped spur the "Me Too" and Time’s Up movements and shined a spotlight on systemic sexual harassment. Following his conviction last month, Weinstein was hospitalized in New York after complaining of chest pains. He was later transferred to Rikers Island.  He also faces separate sexual assault charges in Los Angeles.

Prior related posts:

March 11, 2020 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (2)

Tuesday, March 10, 2020

Big group of US Representatives urges Acting Pardon Attorney to make sure "trial penalty" is part of clemency considerations

Via email I received this interesting note headed "U.S. Reps. Ask Justice Dept. to Review Trial Penalties in Clemency Considerations."  The note reports on this bipartisan letter from nearly 50 US Representatives to the Acting Pardon Attorney urging that she use here "authority when reviewing requests for clemency to consider individual criminal sentences that are significantly harsher than the original sentence offered by the prosecuting attorney in exchange for a guilty plea." Here is more from the letter:

These harsher sentences — also referred to as the “trial penalty” — can be imposed when a criminal defendant decides against accepting a guilty plea.  Instead of accepting a guilty plea, a criminal defendant decides to pursue their 6th Amendment right to a jury trial.  The trial penalty results in a significantly longer prison sentence than those imposed on more culpable defendants who voluntarily waive their constitutional right to a jury trial.

The “trial penalty” also impacts the criminal justice system when criminal defendants plead guilty to avoid a threatened or perceived consequence of going to trial.  These criminal defendants may have valid claims or a defense that could be raised at a trial.  However, these defendants are made aware of or are advised that taking the chance to go to trial could lead to unduly harsh penalties.

Harsher trial sentences have been used to deter people from exercising their 6th Amendment right to a trial.  A 2018 study by the National Association of Criminal Defense Lawyers found that 97% of criminal cases are resolved in a plea.  This strongly suggests that the risk of going to trial is too great for all but 3% of federal criminal defendants.

We therefore request that, when reviewing individual petitions for clemency, you request information from U.S. Attorneys on what sentencing offers were extended to the defendant as part of any plea deal.  This information can be compared with the sentence that the criminal defendant received to determine if they received a “trial penalty.” The “trial penalty” should be considered in clemency petitions by the President.

I am very pleased to see reference to the big 2018 NACDL report (blogged here), especially because it provides another to promote follow-up 2019 Federal Sentencing Reporter double-issue that included 16 original pieces on various aspects of "The Trial Penalty" (first blogged here).

A few prior related posts:

March 10, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Inmate Constitutional Claims and the Scienter Requirement"

The title of this post is the title of this new paper available via SSRN authored by Ann Woolhandler and Michael Collins. Here is its abstract:

Scholars have criticized requirements that inmates prove malice or deliberate indifference to establish constitutional claims against corrections officials.  The Eighth Amendment currently requires that convicted prisoners show that a prison official acted “maliciously or sadistically” to establish an excessive force claim, and to show that an official acted with subjective “deliberate indifference” to make out a claim of unconstitutional prison conditions. Similar requirements can apply with respect to claims by pretrial detainees whose claims are governed by substantive due process rather than the Eighth Amendment.

Scienter critics have argued for use of an objective reasonableness standard for all inmate claims, including those brought by convicted prisoners under the Eighth Amendment as well as pretrial detainees.  This Essay argues that the scienter requirements are more justified than the critics claim.  The scienter critics argue that the Court has based its state of mind requirements on a mistaken notion that punishment requires a purpose to chastise or deter.  Intentions to chastise and deter, however, remain central to the concept of punishment, and the reference to other purposes of punishment does not suggest dispensing with a culpable state of mind requirement in inmate suits against corrections officials. Scienter requirements, moreover, may be justified apart from a notion of punishment — both by reference to the need to maintain order in prisons and to distinguish constitutional violations from ordinary torts.  State of mind requirements, moreover, do not pose the impenetrable barrier to liability that the critics claim. This is particularly true in systemic conditions cases — the cases that have the most promise of improving the lives of inmates.

March 10, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Harvey Weinstein requesting (mandatory minimum) five-year prison sentence

As reported in this CNN piece, headlined "Harvey Weinstein's attorneys ask for him to receive the shortest possible prison sentence," defense attorneys have now filed their sentencing arguments a notable 7-page letter before the judge's scheduled sentencing on March 11.  Here are the basics:

Harvey Weinstein's defense attorneys are requesting a five-year prison sentence, the minimum for his first-degree criminal sexual act conviction, according to a sentencing letter provided by his spokesman.

His attorneys wrote in the letter to Judge James Burke that Weinstein's personal charitable giving, advanced age, medical issues and lack of a criminal history should lead to a lower sentence. They wrote that his life "has been destroyed" since the publication of an article in The New Yorker in October 2017 that alleged systemic abuse of women in the entertainment industry. "His wife divorced him, he was fired from The Weinstein Company, and in short, he lost everything," the attorneys wrote.

Weinstein, 67, was convicted of first-degree criminal sexual act and third-degree rape in a New York courtroom in late February based on accusations by Miriam Haley and Jessica Mann. He was acquitted of two more serious charges of predatory sexual assault, which could have come with a life sentence.

The movie producer faces a minimum of five years and a maximum of 25 years in prison for the criminal sexual act charge, and he faces up to 4 years in prison for the rape charge. His sentencing is scheduled for Wednesday.

The Manhattan District Attorney's office argued in an 11-page court filing last week that Weinstein should receive a sentence that "reflects the seriousness of defendant's offenses." He led a "lifetime of abuse towards others, sexual and otherwise," prosecutors argued, and they highlighted three dozen uncharged incidents and accusations. "Starting in the 1970s, he has trapped women into his exclusive control and assaulted or attempted to assault them," prosecutor Joan Illuzzi-Orbon wrote in a letter. Noting that sentencing isn't limited "to the evidence at trial," Illuzzi-Orbon wrote that Burke has "wide discretion" to consider everything known about the defendant when the judge imposes his sentence on the disgraced movie mogul.

However, Weinstein's attorneys argued that the prosecution's request to consider 36 alleged bad acts in sentencing is "inappropriate," adding they intend to expound upon these issues at sentencing....

In the letter, Weinstein's attorneys said his medical issues mean any sentence above five years would effectively be a life sentence. "Given his age and specific medical risk factors, any additional term of imprisonment above the mandatory minimum — although the grave reality is that Mr. Weinstein may not even outlive that term — is likely to constitute a de facto life sentence."...

The attorneys said the trial "did not fairly portray who he is as a person," saying "his life story, his accomplishments, and struggles are simply remarkable and should not be disregarded in total because of the jury's verdict." Besides noting his commercial success and contributions to the entertainment industry, the attorneys highlighted Weinstein's philanthropic endeavors, including that he was an organizer for a 9/11 benefit concert that raised $100 million. The attorneys wrote that Weinstein "always remained involved in the forefront of various social justice causes" during his career.

The defense cited that he has no criminal history and wrote that in providing this information "do not in any way intend to denigrate the seriousness of the conduct for which he was found guilty," adding his background "should be given substantial consideration in reaching a just and appropriate sentence."

The full defense letter is available here, and sentencing fans may be especially interested in the last couple of pages in which the defense makes the case against consideration of uncharged conduct at sentencing. Here are excepts from this portion of the letter:

The People now ask this court to rely on more uncharged conduct in fashioning what they surely hope will be a draconian sentence.  To that end, by and large, the People ask that your honor consider 36 alleged bad acts in arriving at an appropriate sentence.  We submit that this request is inappropriate and intend on expounding upon these issues at sentencing.

First, these allegations have not been admitted, proven, or subject to adversarial testing in any meaningful manner and for the most part mirror allegations made by the People in other filings.  Reliance upon the People’s proffer would be improper.

Second, even under the federal standard, which does not apply, the People neglect to mention that under 18 U.S.C. § 3553(a) (the “3553(a) factors”), or at least the ones it tendentially cites, federal courts are not permitted by Due Process to consider whatever unsupported conjecture the People ask it to.  Rather, in order for “relevant, uncharged conduct” must be proven by a “preponderance of the evidence” standard” before a sentencing court can give it any weight or effect.  See United States v. Cordoba-Murgas, 233 F.3d 704, 708 (2d Cir. 2000)...

Third, the alleged bad acts cited by the People do not constitute “relevant conduct,” and thus, even in federal court, and even if proven, would not be proper for consideration at sentencing....

Fourth, in the course of the People’s efforts to bootstrap these allegations to its sentencing request, it is unclear if it has met requirements under both C.P.L. § 245.20(1)(k) and Brady v. Maryland, 373 U.S. 83 (1963)Brady applies equally to material relevant to both guilt itself as well as punishment....

Finally, as the court observed, all of the People’s evidence was vigorously contested at trial.  To add weight to a sentence based upon mere allegations, some of which predate even Ms. Sciorra’s rejected claims, would violate Due Process.

Based on the foregoing, Mr. Weinstein, through counsel, requests the Court expressly disregard the People’s request to use these alleged other bad acts as a basis for it sentencing determination as set forth in its March 6, 2020 letter.

Prior related post:

March 10, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Monday, March 9, 2020

"Data Collected Under the First Step Act, 2019"

The title of this post is the title of this notable new document that the Bureau of Justice Statistics released this morning.  The document reports a range of data about the federal prison system, and here are excerpts from the start of this document:

The First Step Act of 2018 (FSA) requires the Bureau of Justice Statistics (BJS), through its National Prisoner Statistics program, to collect data from the Federal Bureau of Prisons (BOP) on a number of topics and to report these data annually.  BJS is required to report on selected characteristics of prisoners, including marital, veteran, citizenship, and English-speaking status; educational levels; medical conditions; and participation in treatment programs.  Also, BJS is required to report some facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations that resulted in time-credit reductions, and selected facility characteristics related to accreditation, on-site health care, remote learning, video conferencing, and costs of prisoners’ phone calls.

The statistics in this report are for calendar year 2018, which is prior to the enactment of the FSA, and were collected in 2019.  Data for 2019 will be available from BOP in the second half of 2020.  Unless otherwise noted, all counts in this report include federal prisoners held in correctional facilities operated either by the BOP or by private companies contracted by the BOP.  Other reporting required by the FSA, such as the establishment of new methods by BOP to score risk-assessment or recidivism-reduction programs, will be included in BJS’s annual reports when data become available.

Key findings....

  • At year-end 2018, a total of 80,599 prisoners — or 45% of all BOP prisoners — were the parent, step-parent, or guardian of a minor child (dependents age 20 or younger, per BOP definition).
  • At year-end 2018, a total of 51,436 prisoners (about 29% of all BOP prisoners) had not attained a high-school diploma, general equivalency degree (GED), or other equivalent certificate before entering prison.
  • At year-end 2018, a total of 23,567 prisoners identified English as their second language (13% of all BOP prisoners).
  • At year-end 2018, a total of 33,457 prisoners were non-citizens (19% of all BOP prisoners)....
  • In 2018, all 122 BOP-operated facilities had the capability for prisoners to use video-conference technology to participate in judicial hearings, foreign embassy consultations, reentry-related communication from probation offices, pre-reentry preparation, disciplinary hearings, and the Institution Hearing Program....
  • A total of 87,628 prohibited acts occurred in BOP-operated facilities during 2018, of which 39,897 were committed in medium-security facilities (45%).
  • A total of 55,361 individual prisoners committed the 87,628 prohibited acts.
  • During 2018, there were 1,270 physical assaults on BOP staff by prisoners, with 21 of the assaults resulting in serious injury to the staff member.

March 9, 2020 in Data on sentencing, FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners | Permalink | Comments (1)

SCOTUS grants cert on a Mississippi case on the application of Miller to replace dismissed Malvo case

In this new order list, the Supreme Court this morning granted certain in one case, Jones v. Mississippi, No. 18-1259.  Here is the straight-forward question presented in Jones' cert petition:

Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

As explained in this post and this post, after Virginia enacted new legislation to make all juvenile offenders eligible for parole, SCOTUS had to dismiss, more than four months after oral argument, the Malvo case which concerned whether infamous DC sniper Lee Malvo was constitutionally entitled to be considered for resentencing for a series of murders committed when he was 17.  It was expected that the Justice would be inclined to take up a "replacement case," and that now appears to be the Jones case.

Notably, the facts and legal realities surrounding the Jones case are strikingly different that the Malvo case.  Lee Malvo was just shy of 18 when he was involved is a high-profile series of thrill killings; Brett Jones had just turned 15 when he stabbed to death his grandfather in an altercation in which Jones claimed (unsuccessfully) he acted in self-defense.  In addition, the Malvo case involved the extra complications of federal habeas review of (unclear) state procedures; the Jones case involves a direct appeal from the state court on the question of what process or finding is required to impose a discretionary life without parole sentence on a juvenile killer.

Because of the somewhat simpler facts and simpler procedural posture, it would seem that Jones will present an interesting opportunity to essentially relitgate a range of issues left behind in the wake of the Miller and Montgomery cases.  I suspect some amici may argue, for example, that is is now time for the Eighth Amendment to be interpreted to categorically ban all juve LWOP (or at least to ban all LWOP sentences for crimes committed under the age of 16).  Some other amici might argue, however, that no particular finding or process should be required for before any juve LWOP sentence is imposed despite suggestions otherwise in Montgomery.

Importantly, because of the timing of all these developments, the oral argument in this case will not be until the Fall and we ought not expect an opinion before early 2021.

March 9, 2020 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, March 8, 2020

Making the case for an improved and independent federal clemency process

Cynthia Roseberry, who testified this past week at a House hearing about clemency, has this extended Hill commentary on the topic under the headline "If applied equitably, clemency power can begin to fix damage caused by a broken system." Here are its closing passages:

The clemency process must be completely independent of the system employed to incarcerate millions of people.  A first step is an independent commission with representation from all stages of the criminal justice system, including those who are formerly incarcerated, prosecutors, defense lawyers, corrections experts, and members of the public with appropriate resources to review the inevitable deluge of petitions from the masses.  Independence would ensure that one actor could not put a thumb of the scales of justice, as is the case in our current system, where the same person who prosecuted the case in the Department of Justice has this power.

This commission would promulgate clear and equitable criteria for release.  Applicants would have notice of the evidence necessary to successfully support a petition for clemency. Newly incarcerated persons would have an incentive to immediately work to achieve necessary rehabilitation.  The general public would understand and believe that the system is just and broadly available, and not reserved for a privileged few under a secret process.

Paramount among the criteria would be the consideration of anyone suffering under a sentence because of a failure to retroactively apply reform.  If we, the people, determine that we are no longer willing to seek incarceration for certain acts, then those who were previously incarcerated for those acts must go free in order for equal justice under the law to have meaning. Categorical clemency could be granted, for example, to those serving enhanced sentences where the penalty no longer applies and for those serving long sentences because of a trial penalty after electing to exercise their constitutional right to trial. Although there is a mechanism for compassionate release, it is underutilized and when employed, release is often denied.  The clemency commission could be used to clear this backlog of the elderly or inform who deserves to be released.

The executive has the opportunity to remove the scourge of mass incarceration from our justice system.  That scourge informs one in three black boys born today that they can expect to be incarcerated.  That scourge prevents $80 billion from being spent on their education because it is being spent to incarcerate.  When historians look back on what we did during our watch, let them record that we were enlightened; may they extol the virtue of our quest for equal justice for all and may they marvel at the expediency with which it was achieved.

March 8, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Janus Face of Imprisonment: Contrasting Judicial Conceptions of Imprisonment Purposes in the European Court of Human Rights and the Supreme Court of the United States"

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

This paper considers how the Supreme Court of the United States (SC) and the European Court of Human Rights (ECtHR) apply, interpret and frame abstract imprisonment purposes, and how they view their relevance to prison conditions, while discussing the constitutionality of prison conditions.  The paper argues that the SC and the ECtHR view, conceptualise and interpret the purposes of imprisonment differently.  Regarding the purposes of retribution and rehabilitation specifically, the analysis presented in the paper exposes a ‘Janus face’, meaning that each purpose can, and is, interpreted in two different, and almost contrasting ways. 

The paper offers three themes regarding the conceptualisation of imprisonment purposes by the SC and the ECtHR: First, the relationship between the purposes of sentencing and imprisonment along the penal continuum, and the role of rehabilitation in a prison regime: should sentencing purposes be relatively static during their implementation in prison, meaning that retributive-oriented sentencing purposes should be pursued (SC), or should they conversely progress with the passage of time, from retribution to resocialization as the primary purpose of imprisonment (ECtHR).  Second, the meaning of retributivism in regard to prison conditions: should prisoners pay a debt to society by suffering in restrictive prison conditions (SC), or is retributivism achieved by atonement and by finding ways to compensate or repair harms caused by crime (ECtHR).  Third, the way in which prison rehabilitation is framed and understood: should prison rehabilitation be seen as a risk management tool aimed purely at lowering recidivism (SC), or as a moral concept grounded in a prisoner’s ability to change his life and belief in personal responsibility for one’s actions (ECtHR).  Possible theoretical implications and general policy implications are considered in the paper.

March 8, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, March 7, 2020

Citing Williams v. New York repeatedly, NY prosecutors urge judge to consider Harvey Weinstein's "lifetime of abuse" at sentencing

As reported in this USA Today piece, headlined "Harvey Weinstein prosecutors seek tough sentence for his 'lifetime of abuse'," state prosecutors delivered to the sentencing judge in the Weinstein case a notable 11-page letter urging the judge to focus on a whole lot of uncharged conduct at this week's upcoming scheduled sentencing. Here are the basics:

Harvey Weinstein's sentence for his conviction on two sex crimes should reflect his "lifetime of abuse" as shown at his trial and in 36 other cases of sexual harassment and assault, workplace abuse and even physically assaulting a reporter, Manhattan prosecutors said in a letter to the trial judge released Friday.

The 11-page letter from Assistant District Attorney Joan Illuzzi was sent to Judge James Burke in advance of Weinstein's sentencing on March 11, when prosecutors are expected to make an oral statement in court about the sentence.

The trial evidence, the testimony of the six accusers who took the stand, and additional allegations outlined in the letter, Illuzzi said, "show a lifetime of abuse towards others, sexual and otherwise." She asked the judge to "impose a sentence that reflects the seriousness of defendant's offenses, his total lack of remorse for the harm he has caused, and the need to deter him and others from engaging in further criminal conduct."

Weinstein was convicted Feb. 24 of third-degree rape and first-degree sexual assault involving two women, and was acquitted of three more serious charges. He could be sentenced to prison for a term ranging from five years to 25 years....

Prosecutors, who want Weinstein's sentence to fall at the longer end of the spectrum, compiled a list of accusations they collected over two years to demonstrate that Weinstein is a predator, even if he's been convicted of only two crimes. "As this court is well aware, in imposing what it deems to be a fair and just punishment, a sentencing court is not limited to the evidence at trial," Illuzzi wrote, citing precedent to argue that the judge has "wide discretion to consider all circumstances that shed light on a convicted person's background, history and behavior" in considering a sentence.

"Chief among the information considered at sentencing is the defendant's history of 'misconduct, whether or not it resulted in convictions,' " Illuzzi said, citing precedents in several federal cases.

Arthur Aidala, one of Weinstein's defense lawyers, told USA TODAY his team has no comment on the prosecution's letter. He said they expect to issue their own pre-sentencing letter to the judge on Monday....

The prosecution list of 36 allegations is divided into three categories: alleged acts of sexual assault and harassment; alleged abusive behavior in the work environment; and other alleged "bad acts." The earliest alleged sexual assault occurred in 1978 when an employee of his music promotion company in Buffalo said she was forced to share a New York City hotel room with Weinstein and woke up to find him raping her. The most recent alleged assault occurred in 2014 at the Cannes Film Festival where he allegedly trapped a woman in a hotel room bathroom and groped her while masturbating.

The full 11-page letter is available at this link, and it makes quite the interesting read. Hard-core sentencing fans know that, over seventy years ago, the Supreme Court upheld the use of uncharged conduct at sentencing in a case from New York, Williams v. New York, 337 U.S. 241 (1949).  Fittingly, Williams is the cited and quoted repeatedly in this sentencing letter from prosecutors to the sentencing judge.

March 7, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

"Technologies of Crime Prediction: The Reception of Algorithms in Policing and Criminal Courts"

The title of this post is the title of this intriguing and timely new article authored by Sarah Brayne and Angèle Christin just published in the journal Social Problems. Here is its abstract:

The number of predictive technologies used in the U.S. criminal justice system is on the rise.  Yet there is little research to date on the reception of algorithms in criminal justice institutions.  We draw on ethnographic fieldwork conducted within a large urban police department and a midsized criminal court to assess the impact of predictive technologies at different stages of the criminal justice process.

We first show that similar arguments are mobilized to justify the adoption of predictive algorithms in law enforcement and criminal courts.  In both cases, algorithms are described as more objective and efficient than humans’ discretionary judgment.  We then study how predictive algorithms are used, documenting similar processes of professional resistance among law enforcement and legal professionals.  In both cases, resentment toward predictive algorithms is fueled by fears of deskilling and heightened managerial surveillance.  Two practical strategies of resistance emerge: foot-dragging and data obfuscation.  We conclude by discussing how predictive technologies do not replace, but rather displace discretion to less visible — and therefore less accountable — areas within organizations, a shift which has important implications for inequality and the administration of justice in the age of big data.

March 7, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, March 6, 2020

"Women in Prison: Seeking Justice Behind Bars"

100The title of this post is the title of this nearly 300-page(!) "briefing report" released last week by the United States Commission on Civil Rights. Here is a brief overview of the report from the transmittal letter that fronts it:

This report examines the civil rights of women in United States prisons.  The population of women in prison has increased dramatically since the 1980s, and this growth has outpaced that of men in prison, yet there have been few national-level studies of the civil rights issues incarcerated women experience.  The Commission studied a range of issues that impact incarcerated women, including deprivations of women’s medical needs that may violate the constitutional requirement to provide adequate medical care for all prisoners; implementation of the Prison Rape Elimination Act (PREA); and the sufficiency of programs to meet women’s needs after release.  The Commission also examined disparities in discipline practices for women in prison compared with men, and the impacts of incarcerated women being placed far from home or having their parental rights terminated.

The Commission majority approved key findings including the following: Many prison policies and facilities are not designed for women or tailored to their specific needs. Rather, many policies were adopted from men’s prison institutions without evaluating their application to women’s prison institutions.  Incarcerated women report extremely high rates, and much higher rates than men, of histories of physical, sexual, and mental trauma.  Notwithstanding federal statutory legal protections such as the Civil Rights of Institutionalized Persons Act (CRIPA) and the Prison Rape Elimination Act (PREA), aimed at protecting incarcerated people, many incarcerated women continue to experience physical and psychological safety harms while incarcerated and insufficient satisfaction of their constitutional rights.  Department of Justice (DOJ) litigation against prison systems involving sexual abuse among other wrongs has secured important changes to safeguard incarcerated women’s rights.

Classification systems that are not calibrated for gender-specific characteristics have been shown to classify incarcerated women at higher security requirement levels than necessary for the safety and security of prisons; women classified at higher security levels may receive fewer vocational and educational, community placement, and reentry opportunities than they would have received had they been classified at lower security levels.  Many incarcerated women are placed at facilities far from their families, limiting visitation opportunities.  Many prison policies do not prioritize family visits, such as by permitting extremely limited family visitation hours that often do not reflect distances visiting family must travel.

Some prisons provide adequate healthcare specific to women, such as gynecological and prenatal care, while others do not.  The high rates at which incarcerated women report past trauma results in the need for mental health care and treatment while incarcerated. Sexual abuse and rape remain prevalent against women in prison. Incarcerated women who report sexual assault have experienced retaliation by their institutions and prison personnel in violation of the law.

The Commission majority voted for key recommendations, including the following: DOJ should continue to litigate enforcement of the civil rights of incarcerated women in states that violate these mandates and the rights of incarcerated women.  Prison officials should adopt validated assessment tools, currently available, to avoid inaccurately classifying incarcerated women to a higher security level than appropriate.  Prison officials should give strong preference to placing incarcerated women in as close proximity as possible with location of their family, provide free video and lowcost phone services to incarcerated persons, and not ban in-person visits for non-safety reasons.

Prison officials should implement policies to address women’s specific healthcare needs, including gynecological and prenatal care, as is constitutionally required. Prisons should have adequate mental health care staff and treatment programs available to meet the needs of the many incarcerated women with mental health challenges, such as past trauma.  Congress should enact stricter penalties for non-compliance with PREA standards focused on inmate safety and consistently appropriate funding sufficient to ensure correctional agencies comply with PREA.  Prisons should implement evidence-based, trauma-informed discipline policies to avoid harsh punishments for minor infractions, and recognizing the significant harms that can result from placement in restrictive housing.  Prisons should ensure restrictive housing is not used against people of color, LGBT people, and people with mental health challenges in a discriminatory manner.

March 6, 2020 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)