Tuesday, May 12, 2020

Wouldn't any effort by inmates to get COVID-19 be a sad commentary on how awful their jail is?

The question in the title of this post was my reaction to this story from the Los Angeles Times headlined "Inmates try to infect selves with coronavirus, sheriff says." Here are excerpts:

The security videos show inmates at the North County Correctional Facility passing around containers of water, taking turns taking swigs, or breathing into a single mask.

Sheriff Alex Villanueva said Monday that the actions were part of a scheme to get sick that led to a coronavirus outbreak in the jail last month.  Eventually, 30 people in the two modules where the videos were recorded tested positive for the virus and two have since been released, said Asst. Sheriff Bruce Chase.

“It’s sad to think that someone deliberately tried to expose themselves to COVID-19,” Villanueva said. “Somehow there was some mistaken belief among the inmate population that if they tested positive that there was a way to force our hand and somehow release more inmates out of our jail environment — and that’s not gonna happen.”

He said investigators interviewed individuals involved but no one admitted to the scheme. “I think their behavior itself is what convicts them,” Villanueva said.  It’s unclear how the disease entered the two modules where the security videos were taken and whether inmates knew someone was sick when they were captured on video sharing the items....

As of Monday, 357 inmates in L.A. County jails have tested positive for the coronavirus infection.  The number of infections has more than tripled since April 30.  Officials, however, are conducting more testing, including of all new bookings.  Of the inmates who have been infected, 117 have fully recovered.  More than 4,500 inmates are being held in quarantine, meaning they had been housed in a unit or had close contact with someone who either tested positive or is waiting for a result.  Nearly 2,000 of them are housed at the North County jail in Castaic where the videos were taken.

Villanueva has significantly reduced the jail population in response to the pandemic. As of Monday, the jails, which typically house 17,000 people, held 11,723 inmates, according to the Sheriff’s Department.  Some critics contend that L.A. County has not done enough. A recent class-action lawsuit claims that inmates are not being tested even when they show symptoms and lack sufficient space for physical distancing.  The lawsuit claims inmates don’t have enough soap or a safe way to dry their hands.

Patrisse Cullors, an activist whose uncle is a lead plaintiff, said in a statement that Villanueva is unable to protect people in L.A. County jails. She called on him to release more people and on the Board of Supervisors to move to offer COVID-19 testing to all prisoners and staff.  “In an attempt to demonize incarcerated people, he is taking a page right out of Trump’s playbook by gaslighting those who are already vulnerable and in absolute fear,” Cullors said.  “Contrary to the Sheriff’s allegations, what I’ve been hearing from prisoners is that there isn’t enough soap, there is no hot water, that sheriff deputies are taunting folks inside by coughing in their presence, telling them they’re going to die of COVID.”

The Sheriff Civilian Oversight Commission voted last week to subpoena Villanueva to appear at its next meeting to discuss his handling of the coronavirus outbreak in the jails. It is the first use of the power approved by voters in March. Inspector General Max Huntsman pointed to The Times’ reporting on one dorm at the Men’s Central Jail where 100 people were housed in bunks that are three feet apart and said he’s received complaints of bottlenecks in testing inmates with symptoms.  He said 43 of the people in that dorm appeared eligible for release.

Whatever the truth of the situation reflected in these videos, I agree that it would be terribly sad that individuals would deliberately try to expose themselves to the serious and potentially deadly coronavirus.  But if they did, it would suggest to me that inmates perceive time spent in the North County jail in Castaic to be even more awful than contracting a serious and potentially deadly disease.  As I see it, Sheriff Alex Villanueva ought to think hard about what this alleged behavior says about the jail he runs and how it is now experienced by those locked within it.

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

Monday, May 11, 2020

Federal Defenders write to members of Congress to detail BOP/DOJ failings in response to COVID-19

I just received a copy of this lengthy letter from the Federal Public & Community Defenders to Members of Congress. I recommend the 13-page letter in full, and here are some excerpts (with footnotes omitted):

We are grateful for the continued interest in the views of the Federal Public and Community Defenders (“Federal Defenders”) by Congress during the COVID-19 crisis. Federal Defenders and other counsel appointed under the Criminal Justice Act represent 90 percent of all federal defendants. We write because vulnerable individuals in federal detention need your help to protect them from serious illness or death. The following measures would provide badly needed relief:

  • A presumption of release under the Bail Reform Act, absent clear and convincing evidence that a person poses a specific threat of violence;
  • Broader tools to enable courts to release or transfer — even temporarily — individuals already sentenced, including broader authority to modify existing sentences, grant furloughs, and grant compassionate release; and
  • Ongoing, universal testing for all incarcerated individuals and staff, including at privatecontract facilities....

In just over a month, forty-eight individuals in BOP custody have died from COVID-19.  COVID-19 is tearing through BOP facilities; incarcerated individuals are being infected at a rate more than 6.5 times higher than in the United States.  Despite this, BOP has transferred less than 1.5 percent of the over 174,000 individuals in its custody to the relative safety of home confinement.  These cold numbers are proof of the government’s abdication of its duty.  That “moral and constitutional duty,” House Judiciary Committee Chairman Jerry Nadler has explained, requires DOJ to “prevent additional deaths among those who are detained or imprisoned under our laws.”

Congress should not be fooled by DOJ and BOP’s empty promises.  Federal judges around the country have used unusually blunt terms to describe the government’s behavior: “an outrage,” “deliberate indifference,” “Kafkaesque,” “illogical,” “alarming,” “unfathomable,” “offends the Court,” and “shocking[].”

A court-ordered inspection and evaluation last week of the Metropolitan Detention Center (MDC) in Brooklyn, the largest pretrial BOP facility in the country, laid bare DOJ and BOP’s false claims about their response to COVID-19.  The former Chief Medical Officer of New York City’s Correctional Health Services wrote in his report he was “alarmed by the facility’s failure to implement simple procedures” consistent with Centers for Disease Control and Prevention (“CDC”) guidelines, and he concluded there were “multiple systemic failures” that placed incarcerated individuals and staff at grave risk.  In response, the MDC has changed nothing.

Federal correctional officers everywhere are speaking out in the press, a national lawsuit, and by filing complaints with the U.S. Occupational Safety and Health Administration (“OSHA”) about insufficient PPE, non-existent social distancing, and other deviations from CDC guidance.  Under AG Barr’s watch, DOJ and BOP have ignored Congressional oversight, court directives, and whistleblowers.  DOJ and BOP have failed to fulfill their obligations to the American people, or to use the powers that Congress has given them. We urge Congress to take immediate and decisive action that does not rely on DOJ or BOP’s discretion.....

We entreat Congress to take immediate action.  Action to protect incarcerated individuals, prison employees, and our communities by requiring DOJ and BOP to implement basic and humane measures to prevent the spread of COVID-19 at all federal detention facilities. Action to prevent prosecutors from needlessly opposing the release of vulnerable individuals who pose no specific threat of violence.  And action to allow courts to release responsibly or transfer temporarily at-risk individuals to the safety of the community.

May 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Might getting more technology and more lawyers (as well as more masks) to prisoners help create a turning point for criminal justice change?

The question in the title of this post is my reaction to this notable news from Politico, headlined "Twitter CEO gives $10M to help prisons battle coronavirus: The donation will buy 10 million face masks and other equipment for people who are incarcerated and corrections employees." Here are excerpts:

Twitter CEO Jack Dorsey pledged $10 million Monday to help U.S. prisons battle the ongoing coronavirus pandemic as inmates living in confined quarters remain particularly vulnerable to the disease.  The donation to REFORM Alliance, a criminal justice advocacy group led by CNN analyst Van Jones, will buy 10 million face masks and other personal protective equipment for people who are incarcerated, as well as correctional officers, health care workers and other prison employees.

The money comes from Dorsey's #startsmall initiative, which he flooded with $1 billion in April using equity from his mobile payment company, Square.  Since then, funds have been distributed to organizations setting up testing sites and assisting health care workers, as well as battling hunger and domestic violence, among other causes.

“The criminal justice system needs to change," Dorsey said in a statement. "Covid-19 adds to the injustices and REFORM is best suited to help." REFORM Alliance, which counts hip-hop artists Meek Mill and Shawn "Jay-Z" Carter and internet billionaire Michael Rubin as founding partners, was created last year to reduce the nation's incarceration rate through changes to probation and parole policies.

The group has since launched a campaign to provide much-needed safety equipment to prisons.... REFORM Alliance also has called for elderly and at-risk inmates to be released to home confinement, for jail terms for technical violations and parole office visits to be suspended, and for inmates to receive free access to medical care, hand sanitizer and protective gear, among other measures.  The group will release a video today called #AnswerTheirCall and circulate a petition that demands public officials take action, both of which Dorsey and others are expected to promote on social media.

“Not only will this gift help us protect millions from the threat of Covid-19, but this level of support from a tech titan marks a turning point for the criminal justice reform movement," Jones said in a statement.

I am very pleased to see an eight-figure pledge to the criminal justice reform cause, and the REFORM Alliance has been doing great work in this space both before and during our COVID pandemic.  The group's new public service announcement, which concludes with an emphasis on how the coronavirus has impacted prison populations, is quite effective, and I am confident REFORM will put its new resources to good use.

That said, when I think about what brings about real dramatic changes in society, I think about disruptive technologies and disruptive people.  Twitter and other social media certainly counts as disruptive technologies, and yet prisoners have precious little access to these critical modern communication platforms.  Because we do not see regular posts and tweets coming from the mass number of humans that are caged in our prisons, we too readily forget about the mass number of humans that are caged in our prisons.  I do not know if this Twitter CEO could somehow pledge 10 million tweets to incarcerated persons, but I do want to believe that a lot more people would care a lot more about prisoners if the extraordinary humanity of all those incarcerated were all that was filling up our feeds in the weeks and months ahead.

As for disruptive people, my job as a law professor has me always thinking about lawyers and the dramatic changes they can bring.  Coming off my last posting, which notes that more prisoners have dies from COVID in weeks than have be executed in the last decade, I am still reflecting on the dramatic impact that lawyers have had on the administration of the death penalty in the last two decades.  The 75%+ decline in death sentences and executions during this period has been largely the result of the extraordinary work of an extraordinary number of lawyers litigating (and lobbying) aggressively and effectively against capital punishment.  

Of course, many lawyers have been litigating (and lobbying) aggressively and effectively against mass incarceration, but the problems and challenges are so huge and complex, more lawyers are always needed.  Notably, a $10 million pledge would be enough to provide a grant of $100,000 to one hundred lawyers to spend the next year representing prisoners.  With plenty of prisoners needing legal help, and plenty of law students graduating into an uncertain legal market, I would love to see funding that might allow creating a small prison litigation army to help take on the now extra deadly excesses of incarceration nation. 

(I especially love imaging other tech titans funding this project, starting with this article's list of five persons whose personal wealth has each already reportedly grown over $2 BILLION in 2020:  "Jeff Bezos, the founder and chief executive of Amazon has seen his wealth rise by $25 billion as of April 15, 2020; Elon Musk, chief executive of Tesla and founder of SpaceX: up $5 billion; MacKenzie Bezos, philanthropist, and the ex-wife of Amazon chief executive Jeff Bezos: up $8.6 billion; Eric Yuan, chief executive and founder of Zoom: up $2.58 billion; Steve Ballmer, owner of Los Angeles Clippers: up $2.2 billion."  If the select members of this group were just to give just 1% of their added wealth from 2020 to the cause, we could fund a large army of many thousands of lawyers that surely could help produce a "turning point for the criminal justice reform movement.")

May 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

The new death penalty: COVID has now killed more US prisoners in weeks than the US death penalty has in over a decade

As reported in prior posts here and here, all scheduled executions in the United States have been postponed in the last two months due in large part to the global pandemic.  But a pause in the carrying out of formal death sentences in the United States has been replaced by a new kind of death penalty as COVID has turned all sorts of other sentences in to functional death sentences.

The UCLA Covid-19 Behind Bars Data Project has been doing a terrific job keeping an updated count, via this spreadsheet, of confirmed COVID deaths of persons serving time in state and federal facilities.  As of midday Monday, May 11, the UCLA accounting had tabulated 341 "Confirmed Deaths (Residents)."  This considerable number is sad and disconcerting on its own terms, but it is even more remarkable given that it amounts to more prisoner deaths than has been produced by carrying out formal death sentences in the United States for the entire period from 2010 to 2020. According to DPIC data, there were a total of 329 executions from the start of 2010 through today.

The Marshall Project has also been doing a great job reporting on COVID cases and deaths in penal facilities nationwide: on April 24 it reported 131 deaths of prisoners, and on May 8 its reported prisoner death count was up to 304.  If that rate of growth were to continue for months to come, more persons serving time in state and federal facilities may be killed by COVID than have been executed in the United States in the whole modern era of the US death penalty.

May 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

Sunday, May 10, 2020

"Criminal Law in Crisis"

The title of this post is the title of this timely new essay authored by Benjamin Levin and now available via SSRN.  Here is its abstract:

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state.  I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list.  Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way unusual in this respect (i.e., similar observations certainly could be and have been made about the pandemic’s exposure of long-lasting problems associated with the health care/insurance system, the tethering of social benefits to employment, pervasive inequality, and many other features of U.S. political economy).  Nevertheless, the current moment provides an opportunity to appreciate the ways in which some of the most problematic aspects of criminal law in times of crisis are basic features of the U.S. carceral state in times of “normalcy.”

To this end, my argument proceeds in two Parts, each addressing one of the aspects or pathologies of U.S. criminal policy that the pandemic has exacerbated.  In Part I, I address the absence of “sentencing realism” or, perhaps more accurately, the failure to consider the reality of jails and prisons when imposing sentences or pretrial detention.  In Part II, I address the basic limitations of thinking of “the criminal system” as a single monolithic “system,” or, even, as “systematic” at all.  What do commentators and lawmakers miss when they suggest or assume that criminal law and its administration are the same in a rural county in Colorado as in an urban county in New York?  In each Part, I explain how the pandemic has made each phenomenon more easily identifiable, but also how each phenomenon defined the criminal system in pre-coronavirus days.  Ultimately, I argue that the “crisis” frame provides an opportunity for reform, but we must not allow the crisis frame to obscure the ways in which the criminal system was in crisis well before the first COVID-19 tests came back positive.

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

Saturday, May 9, 2020

Can the coronoavirus finally get Ohio's bipartsan criminal justice reforms over the finish line?

The question in the title of this post is prompted by this new Fox News piece headlined "Ohio lawmakers hope for bipartisan reform of prison system stressed by COVID-19." Here are excerpts from a long piece:

Ohio lawmakers, lobbyists and researchers of various political stripes are finding a common cause in prison reform.  Bipartisan efforts to reform the troubled system have preceded the outbreak of COVID-19, but the virus has thrown the need for change into stark relief.

Across Ohio’s prison system, more than 4,300 people have tested positive for COVID-19 and at least 40 inmates and two staff members have died.  The Ohio Department of Rehabilitation and Correction (ODRC) has a current inmate population of nearly 50,000, about 10,000 above capacity.  Already cramped living conditions have been exacerbated and stressed by a virus that has forced 39,000 inmates into quarantine, according to ODRC data.

The prison system has long been scrutinized by the left for its overcrowding problem.  Now, with the system wracked by a deadly virus, conservative lawmakers are turning a critical eye to the status quo. “When you have organizations across the political and ideological spectrum saying, oftentimes, identical things about mass incarceration – it makes people take notice,” said Gary Daniels, a lobbyist with the ACLU of Ohio....

Two such displays are House Bill 1 and Senate Bill 3, which would allow for intervention in lieu of conviction and reform drug sentencing laws, respectively, The bills contain changes widely agreed upon as common-sense reforms to Ohio's criminal justice system. Both would put fewer people behind bars for minor criminal infractions, allowing for rehabilitation and community monitoring for crimes that don’t merit incarceration....

Still, bipartisan acknowledgment of a problem doesn’t always prompt bipartisan legislative action. Solutions can languish in the statehouse for months while lawmakers debate the finer points. Sometimes party lines won’t be moved....

Cooperation between think tanks and policy advocacy organizations can be a prelude to lawmakers taking up a cause in committee. Rep. Diane Grendell, a Republican lawmaker from northern Ohio and former Court of Appeals judge, sits on the Ohio House Criminal Justice committee and anticipates seeing prison reform enacted reasonably soon. “We have failed in our prison system,” Grendell said. “We have more prisoners than we have jails for, we keep passing more and more laws, we have to really clean it up. And I think all sides agree on that. We just have too many people in prisons.”...

The Buckeye Institute has long lobbied for fiscally conservative policies.  Recently, those policies have included criminal justice reform like S.B. 3. Lawson said prisons are the state’s third-largest budget item behind Medicaid and education. The Buckeye Institute has backed prison reform bills alongside liberal groups like Policy Matters Ohio and the libertarian Americans for Prosperity....

Ohio Rep. Erica Crawley, a Democrat from southeastern Columbus, isn’t as hopeful about a new era of bipartisanship in Ohio, though she does recognize the likelihood of criminal justice reform. “The pandemic has really brought those concerns and conversations to the forefront,” she said. “… We are having a really substantive conversation about rehabilitation. Obviously, we can’t lock inmates up and get out of this drug problem.”

For years, Ohio has been at the center of the nation’s opioid epidemic, with the state prison and county jail systems bearing the brunt of the resulting increase in incarceration.... Crawley said current reform efforts are good, but don’t go far enough. She said the bills under consideration wouldn’t do enough to mitigate the prison population enough to matter if the state were struck with a future pandemic.

“Right now, we have over 15,000 inmates who are considered low-level, nonviolent offenders,” Crawley said. “A lot of those are drug convictions. S.B. 3 would still allow people to be incarcerated for small amounts of drugs.  Until we have consensus and local court policy guidelines, we’re going to continue to see the same problems. If we have another pandemic, we’re going to be in the same position.”

I want to be optimistic that Ohio's General Assembly might get both House Bill 1 and Senate Bill 3 to the desk of the Governor in short order.  But these bills have been "stuck" in the Ohio GA for quite some time, and Ohio's prison population has been way over capacity for even longer.  And despite a lot of public policy groups on both sides of the aisle supporting reform, many of the anti-reform usual suspects (e.g., prosecutors and police) have so far kept these relatively modest proposed reforms from becoming law.  I sure want to believe that the COVID crisis will get the Ohio GA to finally get these reforms enacted, but I never count any sentencing reform chickens before they are fully hatched.

May 9, 2020 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Decentralizing Clemency: Decentralizing the Commutation Power to Invigorate Sentence Reduction"

The title of this post is the title of this new paper recently posted to SSRN and authored by Riley Kane, a recent graduate The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by the Drug Enforcement and Policy Center.  Most of the papers in this series have come from the marijuana seminar I teach, and I blog about these papers in posts like this over at my Marijuana Law, Policy & Reform blog.  But this paper emerged from my sentencing class last fall, and the topic has only become more timely and important in recent months.  Here is this paper's abstract:

Reforming sentencing and reducing prison overcrowding requires a focus on the future to ensure just punishments and the past to re-evaluate harsh punishments from the ‘tough on crime’ era.  This paper focuses on ending those past wrongs.  Executive clemency is sometimes discussed as a method for addressing harsh punishments, but there are only so many governors and Presidents.  This paper proposes amending the Ohio Constitution to grant the elected county prosecutors a commutation power subject to veto by the governor.  This would decentralize clemency and create a new, potentially system-reshaping tool to address harsh sentences and empower reform-minded prosecutors.  The paper additionally discusses other methods to expand clemency and favors adopting the novel constitutional amendment in addition to other reforms for maximum impact.

May 9, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, May 8, 2020

Another robust week for COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

In recent posts (here and here and here and here and here and here and more linked below), I have highlighted many, many rulings involving COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) that I have found via Westlaw.  I have received positive feedback concerning these prior posts from various quarters, and so I will continue these periodic posts as we continue to see these kinds of grants.  (And, as I have said often, my Westlaw listings likely do not represent all sentence reductions being granted by the federal courts these days.) 

Though rulings for Friday, May 8 do not yet appear on Westlaw, this week has already brought an extra long list of new grants of sentence reductions (a few of which were from last week but just recently showed up on Westalw):  

United States v. Hansen, No. 17 CR 50062, 2020 WL 2219068 (ND Ill. May 7, 2020)

United States v. Amarrah, No. 17-20464, 2020 WL 2220008 (ED Mich. May 7, 2020)

United States v. Howard, No. 4:15-CR-00018-BR, 2020 WL 2200855 (ED NC May 6, 2020)

Casey v. United States, No. 4:18-cr-4, 2020 WL 2297184 (ED Va. May 6, 2020)

United States v. Quintero, No. 08-CR-6007L, 2020 WL 2175171 (WDNY May 6, 2020)

United States v. Reid, No. 17-cr-00175-CRB-2, 2020 WL 2128855 (ND Cal. May 5, 2020)

United States v. Moskowitz, No. 11-CR-793-1 (WFK), 2020 WL 2187770 (EDNY May 5, 2020)

United States v. Pabon, No. 17-165-1, 2020 WL 2112265 (D Mass. May 4, 2020)

United States v. Echevarria, No. 3:17-cr-44 (MPS), 2020 WL 2113604 (D Conn. May 4, 2020)

United States v. Early, No. 09 CR 282, 2020 WL 2112371 (ND Ill. May 4, 2020)

United States v. Ardila, No. 3:03-cr-264 (SRU), 2020 WL 2097736 (D Conn. May 1, 2020)

United States v. Soto, No. 1:18-cr-10086-IT, 2020 WL 2104787 (D Mass. May 1, 2020)

United States v. Kelly, No. 3:13-CR-59-CWR-LRA-2, 2020 WL 2104241 (SD Miss. May 1, 2020)

United States v. Fischman, No. 16-cr-00246-HSG-1, 2020 WL 2097615 (ND Cal. May 1, 2020)

United States v. Norris, No. 7:19-cr-36-BO-2, 2020 WL 2110640 (ED NC Apr. 30, 2020)

As I have said before, It is heartening to see these types of rulings from coast-to-coast and lots of places in-between.  I am hopeful, whenever life calms down a bit, that I might be able to assess and analyze in some way whether there are some broader trend and themes to be found in these grants (as well as in denials of these motions).  For now though, I have to be content with just listing the grants and being pleased there continue to be grants to list.

Prior recent related posts since lockdowns:

May 8, 2020 in Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Yet another Texas execution postponed, though purportedly not for COVID reasons

Texas had an execution scheduled for next Wednesday, but no longer as explained in this local article: "An East Texas man who asserts that he is intellectually disabled has won a reprieve from his execution scheduled for next week for a 2007 shootout that left two sheriff’s officers dead." Here is more:

Randall Wayne Mays was set to receive lethal injection May 13 for the shootings at his Henderson County home.  In an order issued Thursday, the Texas Court of Criminal Appeals issued an execution stay and remanded Mays’ case to the trial court in Henderson County for review of his intellectual-disability claim.

Mays’ attorneys say the 60-year-old suffers from delusions and thinks Texas wants to execute him over a renewable energy design he believes he created....  Mays had previously won reprieves in October and in 2015.

Six other executions scheduled in Texas for earlier this year have been postponed because of the novel coronavirus outbreak statewide.  Besides Mays' intellectual-disability claim, his attorneys had also asked the appeals court for an execution stay because of the pandemic. The appeals court did not address that request in its order.

The next execution in Texas is scheduled for June 16.

Though this reprieve was not based on the COVID pandemic, I wonder if the Texas Court of Criminal Appeals was just a little bit more willing to grant the defendant his requested relief because of the many challenges posed to courts and corrections officials these days. I suspect that, even when courts and litigants do not make express reference to COVID concerns, they still cannot help but look at all criminal justice issues through a somewhat different lens.

With Texas starting to open up, it will be especially interesting to see if the state's two scheduled excutions for mid June and early July go forward. And, in the meantime, Missouri has an execution schedule for May 19, and it seems that the state is seriously prepared to move forward (see, e.g., press reports from Mother Jones and the St. Louis Dispatch).

Some prior related capital COVID posts:

May 8, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Book-ending the work week with another round of recent pieces on our current COVID prison state

In this post on Monday, I started the work week with extended round up of more than a dozen notable stories and pieces of commentary on the state of incarceration nation as the coronavirus continues to spread.  Unsurprisingly, the week has brought more good reads in this disconcerting oeuvre, and here is just a sample:

Press Coverage:

From the Associated Press, "America’s business of prisons thrives even amid a pandemic"

From Colorado Public Radio, "Prisoners Write About COVID-19: ‘Who Cares When The Disposable Die?’"

From National Public Radio, "Prisons, Jails And The Pandemic: How Coronavirus Is Affecting The Incarcerated"

From Reason, "Lawmakers Call Out Cuomo and Other Governors for Letting Prisoners Die of COVID-19"

From Slate/The Marshall Project, "COVID-19 Has Trapped Thousands of Parolees In Prison: They’ve been cleared to go home, yet they’re stuck in prison as the virus spreads."

From The Wichita Eagle, "‘I feel like I’m in a tomb.’ In Kansas prisons, COVID-19 kindles festering problems"

Commentary:

By Michael Cindrich, "Want to stop coronavirus spread in prisons, jails and detention centers? Let some inmates go."

By Tana Ganeva, "America’s Crowded Prisons Are About To Create A Coronavirus Crisis In Rural America"

Marc Levin and Kelli Rhee, "Don’t ignore prisons and jails in COVID-19 response"

By Norman Reimer, Jonathan Smith, Kevin Ring and Steven Salky, "Reducing the Spread of COVID-19 Through the Power to Reprieve"

By Alice Speri, "Mass Incarceration Poses A Uniquely American Risk In The Coronavirus Pandemic"

By Wesley Williams, "The Cruel Irony of Social Distancing When You’re Stuck in Solitary"

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

Thursday, May 7, 2020

Always pleased to see more opposition to jail time and support for retroactive decarceral reforms ... and hoping to see it in all settings for all people

This new Austin American-Statesman article, headlined "Texas Supreme Court orders release of jailed salon owner who illegally reopened," highlights interesting developments and notable statements in the litigation surrounding a high-profile COVID-related case in the Lone Star State.  Here are the details:

The Texas Supreme Court on Thursday ordered Dallas County officials to free salon owner Shelley Luther from jail while its nine judges, all Republicans, weigh an appeal challenging her incarceration as improper.

The emergency order directed county officials to release Luther, who reopened her salon despite state restrictions, on a personal bond with no money required, “pending final disposition of her case.”  County officials also were ordered to file a response to the challenge by 4 p.m. Monday, the same day Luther’s weeklong sentence for contempt of court would have ended.

The order came shortly after Texas Gov. Greg Abbott, seeking to end a political firestorm over Luther’s jailing, announced Thursday that local officials will be prohibited from jailing Texans for violating any of his numerous coronavirus-related executive orders.  “Throwing Texans in jail who have had their businesses shut down through no fault of their own is nonsensical, and I will not allow it to happen,” Abbott said in a statement.  “That is why I am modifying my executive orders to ensure confinement is not a punishment for violating an order.” Abbott said this latest executive order, “if correctly applied,” should free Luther....

Luther, who opened Salon à la Mode nearly two weeks ago, was found in contempt for ignoring a court order to close from state District Judge Eric Moyé, who sentenced her to seven days in Dallas County jail Tuesday and hit her with a $7,000 fine.

The petition challenging Luther’s incarceration, filed Wednesday by lawyers who included state Rep. Briscoe Cain, R-Deer Park, argued that she was exercising her right to run a business in ways that protected customer health by, among other steps, requiring stylists to wear face coverings, seating patrons 6 feet apart and sanitizing regularly touched surfaces. “There is no evidence that her business posed any greater risk to the public than businesses being allowed to operate, such as movie theaters, day cares, and home improvement stores,” the Supreme Court petition said.

The fine and jail sentence came as barber shops and hair salons were allowed to reopen Friday under an executive order issued Tuesday by Abbott. Under Abbott’s previous stay-at-home order, issued in March, salons and other nonessential businesses were required to close....

On Wednesday, Abbott said jail time should be the last resort for those who disobey his executive order. But after receiving pushback from some conservative activists and lawmakers, who argued that his comments didn’t go far enough in criticizing government overreach, Abbott modified his orders Thursday.

State law sets the punishment for violating disaster-related executive orders at a fine of up to $1,000 and up to 180 days of jail time.

Abbott’s latest executive order suspended “all relevant laws” that allow jail time “for violating any order issued in response to the COVD-19 disaster.” The new order also allowed salons and barber shops to open immediately, instead of Friday, and made the change retroactive to April 2 to nullify any local regulations that could form the basis of jail time for business owners who violated a shutdown order.

Republicans took to Twitter to praise Abbott’s action Thursday. “I am pleased to see @GregAbbott_TX has removed jail as a punishment for violating exective orders.  Some local officials have been reckless, imprisoning women for wanting to work to put food on the table for their children,” said state Rep. Matt Shaheen, R-Plano....

“Gov. Abbott, throwing Texans in jail whose businesses shut down through no fault of their own is wrong. Thank you for admitting that,” said state Rep. Mike Lang, R-Granbury.

As many have noted in a variety of settings, there is a particularly ridiculous irony to enforcing social distancing rules by sending a person into a carceral environment in which social distancing is all but impossible.  But this story is a useful reminder that any number of judges, even in the midst of a pandemic, are still inclined to use jail time in what one Texas official calls a  "reckless" manner.  It is great to see criticism of the use of jail in this particular instance, but there are lots and lots and lots of examples of jail being used excessively.  I sure hope state Rep. Matt Shaheen and the many others speaking out in this case (including the Texas Attorney General and Senator Ted Cruz and many others) will keep speaking out against reckless jail sanctions.

Similarly, this story also shows that some Texas officials strongly believe that, upon recognizing that a problematic law has led to problematic incarceration, the law should be changed and that change should be given retroactive effect to free those subject to problematic incarceration.  I sure hope state Rep. Mike Lang and others will keep speaking up in support or decarceral legal reforms and ensure that any and all such reforms always get full retroactive effect to free those subject to laws that have been reformed for the better.

Of course, I am not at all confident that concern for poor use of incarceration and support for reparative efforts will be expressed in all setting from all these Texas officials or others.  Indeed, this Houston Chronicle report notes that "In April, two Latina women in Laredo were arrested and jailed for defying the lockdown by running nail salons out of their homes. No state officials intervened in their cases."

May 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

"Justice Dept dropping Flynn’s criminal case"

The title of this post is the title of the notable news in this new AP report.  Here is the first part of the article:

The Justice Department on Thursday said it is dropping the criminal case against President Donald Trump’s first national security adviser, Michael Flynn, abandoning a prosecution that became a rallying cry for Trump and his supporters in attacking the FBI’s Russia investigation.

The move is a stunning reversal for one of the signature cases brought by special counsel Robert Mueller.  It comes even though prosecutors for the last three years had maintained that Flynn had lied to the FBI about his conversations with the Russian ambassador in a January 2017 interview.  Flynn himself admitted as much, and became a key cooperator for Mueller as he investigated ties between Russia and the 2016 Trump campaign.

In court documents being filed Thursday, the Justice Department said it is dropping the case “after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information.”  The documents were obtained by The Associated Press.  The Justice Department said it had concluded that Flynn’s interview by the FBI was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn” and that the interview on January 24, 2017 was “conducted without any legitimate investigative basis.”

The U.S. attorney reviewing the Flynn case, Jeff Jensen, recommended the move to Attorney General William Barr last week and formalized the recommendation in a document this week.  “Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case,” Jensen said in a statement. “I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed.”

The decision is certain to be embraced by Trump, who has relentlessly tweeted about the case and last week pronounced Flynn “exonerated,” and energize supporters who have taken up the retired Army lieutenant general as something of a cause celebre.  But it may also add to Democratic concerns that Attorney General William Barr is excessively loyal to the president, and could be a distraction for a Justice Department that for months has sought to focus on crimes arising from the coronavirus.

The Justice Department’s action comes amid an internal review into the handling of the case and an aggressive effort by Flynn’s lawyers to challenge the basis for the prosecution.  The lawyers cited newly disclosed FBI emails and notes last week to allege that Flynn was entrapped into lying when agents interviewed him at the White House days after Trump’s inauguration.  Though none of the documents appeared to undercut the central allegation that Flynn had lied to the FBI, Trump last week pronounced him “exonerated

The decision is the latest dramatic turn in a years-old case full of twists and turns.  In recent months, his attorneys have leveled a series of allegations about the FBI’s actions and asked to withdraw his guilty plea.  A judge has rejected most of the claims and not ruled on others, including the bid to revoke the plea.

Prior related posts:

May 7, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"Voting in Jails"

The title of this post is the title of this notable new report by Nicole Porter at The Sentencing Project. Here is the report's overview:

Felony disenfranchisement laws bar millions of Americans from voting due to their felony conviction.  Among those excluded are persons in prison, those serving felony probation or parole, and, in 11 states, some or all persons who have completed their sentence.  While these disenfranchisement laws have been closely documented for years by advocacy organizations, academics, and lawmakers, the de facto disenfranchisement of people legally eligible to vote in jails has received less attention.

In local jails the vast majority of persons are eligible to vote because they are not currently serving a sentence for a felony conviction.  Generally, persons are incarcerated in jail pretrial, sentenced to misdemeanor offenses, or are sentenced and awaiting transfer to state prison.  Of the 745,0001 individuals incarcerated in jail as of 2017 nearly two-thirds (64.7%), or 482,000, were being held pretrial because they had not been able to post bail.  Of the 263,000 who were serving a sentence, the vast majority had been convicted of a misdemeanor offense that does not result in disenfranchisement.

Despite the fact that most persons detained in jail are eligible to vote, very few actually do.  Jail administrators often lack knowledge about voting laws, and bureaucratic obstacles to establishing a voting process within institutions contribute significantly to limited voter participation. Indeed, acquiring voter registration forms or an absentee ballot while incarcerated is challenging when someone cannot use the internet or easily contact the Board of Elections in their community.  In addition, many persons in jail do not know they maintain the right to vote while incarcerated, and there are few programs to guarantee voting access.

Problems with voting in jail disproportionately impact communities of color since almost half (48%) of persons in jail nationally are African American or Latino.  Other racial groups, including Native Americans and Asians, comprise about 2% of the jail population, or 13,000 persons as of 2017.

In recent years, some jurisdictions have adopted policies and practices to ensure voting access for persons incarcerated in local jails because of initiatives developed by jail leadership and advocacy organizations.  This report examines six programs designed to expand voting access for eligible incarcerated citizens.  The success and expansion of these efforts will improve democracy.

May 7, 2020 in Campaign 2020 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Prisons and prisoners | Permalink | Comments (0)

Federal prison population drops below 170,000 for first time in nearly two decades

I have been making a habit on Thursdays, which is when the federal Bureau of Prisons updates its general population numbers, of highlighting notable aspects of the newest federal prison population data (as evidenced in prior posts here and here).   I have highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  We are now into May, and the new numbers at this webpage shows an even bigger weekly decline in total number of federal inmates as calculated by BOP: since last week, the population has gone down from 170,435 as of April 30 to now a total of 169,080 as of May 7, 2020.

Notably, the BOP's COVID-19 Update page now reports that "the BOP has placed an additional 2144 on home confinement."   That amounts to an increase of roughly 339 more inmates placed on home confinement since last week, which would seemingly account for only about a quarter of this week's overall population decrease.  These data still further reinforce my sense that a reduced inflow of prisoners — due, I would guess, to many sentencings and reportings to prisons being delayed — accounts for the lion's share of the prison population decline in recent months.

It will be interesting to continue to watch in the weeks and months ahead whether the federal prison population will continue to decline in this way.  But the decline below 170,000 as the total federal prison population already feels historic, as Fiscal Year 2002 was the last time the federal prison population checked in at the end of the year below that threshold.  (And, if were to focus on the federal imprisonment rate, we are now on par with our federal incarceration levels from the mid 1990s.)

These federal prison data are heartening for those of us who have long believed, in the words of then-Attorney General Eric Holder, "that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason."  But, in these somber and disconcerting days, I feel compelled to flag just some of many recent headlines that document, yet again, that there is still as lot of somber and disconcerting news coming from the federal prison system:

From The Appeal, "Death Of New Mother At Federal Prison Hospital Prompts Calls For Accountability In Texas"

From Cleveland.com, "Ohio man becomes eighth Elkton federal prison inmate to die of coronavirus"

From Forbes, "Minimum Security Inmates Locked In Cells For Quarantine Are At Breaking Point"

From NJ.com, "N.J. federal prison is becoming a 'deathtrap,’ ACLU says, seeking release of vulnerable inmates"

From the Santa Barbara Independent, "Lompoc Prison Reports Second COVID-19 Death"

May 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

SCOTUS dings Ninth Circuit panel for its "takeover of the appeal" of convictions for encouraging illegal immigration

I had not been following that closely the Supreme Court's consideration of the immigration case examining the proper reach of 8 U.S.C. §1324, United States v. Sineneng-Smith, No. 19-67 (S. Ct. May 7, 2020) (available here). But the Court's opinion in the case this morning caught my attention because the Justices decided not to decide the merits and instead decided to assail the Ninth Circuit's handing of the case.  Justice Ginsburg's opinion for the Court gives an account of how the Ninth Circuit panel solicited amicus briefs of the case, and then concludes this way: 

No extraordinary circumstances justified the panel’s takeover of the appeal.  Sineneng-Smith herself had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others.  Electing not to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother’s plea to her alien grandchild to remain in the United States. 910 F. 3d, at 483–484.  Nevermind that Sineneng-Smith’s counsel had presented a contrary theory of the case in the District Court, and that this Court has repeatedly warned that “invalidation for [First Amendment] overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’” United States v. Williams, 553 U. S. 285, 293 (2008) (quoting Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 39 (1999)).

As earlier observed, see supra, at 4, a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.

For the reasons stated, we vacate the Ninth Circuit’s judgment and remand the case for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties.

Justice Thomas concurs in an opinion that starts this way:

I agree with the Court that the Ninth Circuit abused its discretion in reaching out to decide whether 8 U.S.C. §1324(a)(1)(A)(iv) is unconstitutionally overbroad.  In my view, however, the Court of Appeals’ decision violates far more than the party presentation rule.  The merits of that decision also highlight the troubling nature of this Court’s overbreadth doctrine.  That doctrine provides that “a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”  United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449, n. 6 (2008)).  Although I have previously joined the Court in applying this doctrine, I have since developed doubts about its origins and application.  It appears that the overbreadth doctrine lacks any basis in the Constitution’s text, violates the usual standard for facial challenges, and contravenes traditional standing principles.  I would therefore consider revisiting this doctrine in an appropriate case.

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

SCOTUS unanimously reverses "Bridgegate" convictions as involving conduct not covered by federal property fraud statute

The US Supreme Court handed down a unanimous opinion this morning in Kelly v. United States, No. 18-1059 (S. Ct. May 7, 2020)  (available here), the high-profile political fraud case often called "Bridgegate."  Here is how Justice Kagan's short opinion for the full Court gets started:

For four days in September 2013, traffic ground to a halt in Fort Lee, New Jersey.  The cause was an unannounced realignment of 12 toll lanes leading to the George Washington Bridge, an entryway into Manhattan administered by the Port Authority of New York and New Jersey.  For decades, three of those access lanes had been reserved during morning rush hour for commuters coming from the streets of Fort Lee. But on these four days — with predictable consequences — only a single lane was set aside.  The public officials who ordered that change claimed they were reducing the number of dedicated lanes to conduct a traffic study.  In fact, they did so for a political reason — to punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid.

Exposure of their behavior led to the criminal convictions we review here. The Government charged the responsible officials under the federal statutes prohibiting wire fraud and fraud on a federally funded program or entity.  See 18 U.S.C. §§1343, 666(a)(1)(A). Both those laws target fraudulent schemes for obtaining property.  See §1343 (barring fraudulent schemes “for obtaining money or property”); §666(a)(1)(A) (making it a crime to “obtain[] by fraud . . . property”).  The jury convicted the defendants, and the lower courts upheld the verdicts.

The question presented is whether the defendants committed property fraud.  The evidence the jury heard no doubt shows wrongdoing — deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct.  Under settled precedent, the officials could violate those laws only if an object of their dishonesty was to obtain the Port Authority’s money or property.  The Government contends it was, because the officials sought both to “commandeer” the Bridge’s access lanes and to divert the wage labor of the Port Authority employees used in that effort.  Tr. of Oral Arg. 58.  We disagree.  The realignment of the toll lanes was an exercise of regulatory power — something this Court has already held fails to meet the statutes’ property requirement.  And the employees’ labor was just the incidental cost of that regulation, rather than itself an object of the officials’ scheme.  We therefore reverse the convictions.

Some prior related posts:

May 7, 2020 in Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, May 6, 2020

Noting some new tales of the COVID-era challenges of criminal justice administration

In reviewing the news of the day, I came across a number of notable new stories about the (many) unique challenges that now arise as a global pandemic dramatically alters the administration of criminal justice.  Here are headlines and a highlight from a few of these pieces:

From The Appeal, "Covid-19 Is Creating A State Of Emergency For Incoming Public Defenders. Diploma Privilege Is The Only Solution."

The public defender system that sprung out of Gideon, however, has faced crises ranging from underfunding to staggering caseloads that make it impossible for defenders to effectively represent their clients.  Now, COVID-19 is ushering in a new crisis: several states including California as well as the District of Columbia have postponed their bar exams, while other states have enacted a provisional licensing scheme, meaning that while law school graduates may be able to work in temporary, limited capacities performing the work that Gideon mandates, they will also bear the burden of preparing for the bar.  So, what will happen to the marginalized — and Gideon’s mandate — when an entire class of public defenders cannot begin their jobs as scheduled in the fall of 2020?

From Law360, "Grand Jury Suspensions A Looming Problem For Prosecutors":

As court closures stretch on during the coronavirus pandemic, the suspension of federal grand juries is causing headaches for prosecutors by jeopardizing older cases and slowing down complex ones, requiring judges to consider how to bring the panels back.

From The Marshall Project, "A Dangerous Limbo: Probation and Parole in the Time of COVID-19":

When people are accused of violating their probation or parole, they often have to wait behind bars for a series of hearings and procedural hurdles to determine if they are guilty and what the consequences will be.  Think of a criminal trial, but less formal and with fewer constitutional protections.  Even “one day in custody can totally disrupt someone’s life to the point of almost no return,” says Michael Nail, Georgia’s commissioner of community supervision.  Now, coronavirus can make custody downright dangerous.

p>From WSYX/WTTE, "Ohio prosecutors have backlog of cases, courtrooms not expected to fully reopen until June":

Right now many victims and cases are in limbo because of the coronavirus pandemic.  Court systems all across Ohio are looking at how to handle the volume of cases that haven't been touched in weeks and new cases too. In Fairfield County, Prosecutor Kyle Witt says they've been working diligently to figure out how to give those arrested and victims their day in court.  The county's grand jury met for the first time today in weeks. "We're resuming today, we're limiting the number of people in that room. We are providing masks and gloves and social distancing," said Witt.

May 6, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

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

Sigh.

Prior recent related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, May 5, 2020

REMINDER of exciting DEPC and OJPC sentencing project: "Drafting Contest: An Ohio 'Second Look' Statute"

I warned in this initial posting that I would be repeatedly promoting an exciting new project from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC).  The basic details are explained on this webpage, more background appears in this document, and here are the essentials:

About

A robust national discussion about how best to remedy extreme and unwarranted prison sentences has prompted various new proposed remedies. In hopes of encouraging discussion and debate around the creation of a comprehensive “second-look sentencing provision” in Ohio law, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC), a statewide criminal-justice nonprofit, are sponsoring a legislative-drafting contest for law students and recent law school graduates.

Contest Objective and Deliverable

DEPC and OJPC encourage law students and recent graduates (from class years 2015-2020) to submit (1) proposed language for a new Ohio statutory provision and (2) accompanying commentary to allow courts to take a second look at Ohio prison sentences.  The proposal should address both substance (e.g., when and to whom does it apply) and procedure (e.g., how should such a second look be initiated and decided).  Entrants may, but are not required to, address the public-health issues that have come to the fore with COVID-19 (e.g., the proposal might have a special provision allowing more prisoners to seek resentencing when a public-health emergency has been declared).  Group submissions are acceptable and encouraged.

Contest Timeline and Awards

Submissions are due June 30, 2020.  The winning submission will receive a prize of $2,000, and up to two runner-up prizes of $1,000 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the groups members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full version of the winning proposal will also be presented to the Ohio Criminal Sentencing Commission at a forthcoming meeting and may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

May 5, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Effective overview of highlights (or lowlights) of latest BJS data on prisons and jail at end of 2018

I noted in this post the release of new reports and data from Bureau of Justice Statistics detailing US incarceration levels as of the end of 2018.  The folks at the Prison Policy Initiative now have this new posting on the BJS data titled "Stagnant populations and changing demographics: what the new BJS reports tell us about correctional populations."  I recommend the full piece, and the subtitle highlights its themes: "New BJS reports show that jail and prison populations remain stubbornly high despite decreasing crime rates, and point to the shifting demographics of correctional populations."  Here are excerpts:

The COVID-19 crisis is illustrating yet another danger of our overreliance on incarceration, as jails and prisons are rapidly becoming coronavirus hotspots.  As correctional facilities around the country grapple with the crisis, two new Bureau of Justice Statistics (BJS) reports, Jail Inmates in 2018 and Prisoners in 2018provide crucial details about our nation’s correctional populations. The reports highlight the slow pace of decarceration over the past decade, the persistence of pretrial detention despite calls for reform, and the changing demographics of prisons and especially of jails....

Both of the new BJS reports boast of declining correctional populations, but a closer look at the data reveals the pace of decarceration is still far too slow.  Prisoners in 2018 reports that prison populations decreased 9% between 2008 and 2018, meaning prison populations, on average, declined by less than 1% each year.  As the nation with the highest incarceration rate in the world, such small declines represent a national failure.

The rate of decarceration in jails is similarly slow, and jail populations have even ticked up in recent years.  Although Jail Inmates in 2018 and its press release boast that the “jail incarceration rate decreased 12% from 2008 to 2018,” most of that drop happened over five years ago; the jail population barely budged between 2015 and 2018.  There were actually over 18,000 more people in jail on an average day in 2018 than in 2015 -- despite the fact that the overall crime rate declined 11% over the same period.

Even worse, the growth of jail populations over those years can largely be attributed to an increase in the number of people held pretrial.  The vast majority of people in jails have not been convicted and are simply stuck in jail waiting for their day in court, and their number has increased by 6% since 2015, while the number of people in jail who were convicted declined by 9%.  That means pretrial detention has continued to drive all of the net jail growth in recent years, despite the fact that counties around the country are reforming their bail systems to reduce pretrial incarceration. Clearly, these measures have not gone far enough.

Another key takeaway from the recent reports: There have been striking demographic shifts in jail populations and, to a lesser extent, in prison populations.  The number of women incarcerated in jails has increased, and while the women’s prison population is slowly falling, the decarceration of men in prisons continues to outpace that of women. Racial disparities remain persistent, but have actually narrowed in both prisons and jails.  Finally, we see that rural jails have grown while urban jail populations have taken more significant steps toward decarceration.

May 5, 2020 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Will Joe Biden release a SCOTUS short-list and will it excite criminal justice reformers?

As revealed in this way back link, it was mid May 2016 when then-candidate "Donald J. Trump released the much-anticipated list of people he would consider as potential replacements for Justice Scalia at the United States Supreme Court."  Notably, neither Neil Gorsuch nor Brett Kavanaugh appeared on the first Trump SCOTUS short-list, but these names were added later and now they are fixed as part of the Trump Supreme Court legacy.

This recent CBS article, headlined "Democrats push Joe Biden to release Supreme Court short list and run on future court battles," highlights "calls for Biden to copy the playbook of then-candidate Donald Trump, who in May 2016 released a list of 11 people he would pick from to nominate to take the late Justice Antonin Scalia's seat."  Here are some excerpts:

Several lawyers and activists told CBS News that Biden, a former public defender, should run on protecting the popular liberal legacy of Ruth Bader Ginsburg.  Progressives warn if Biden is not elected, the Supreme Court's current 5-4 conservative tilt could balloon into a potential 7-2 majority if Ginsburg, 87, and  Stephen Breyer, 81, choose to retire or face greater health troubles....

Ginsburg is an enormously popular figure in the Democratic Party, a truth that has been evident throughout the Democratic primary process — her portrait is frequently seen beaming on colorful t-shirts and tote bags. Some suggest that by tying his campaign to protecting her legacy, Biden would also highlight his previous pledge to nominate the first black woman justice if he is elected.

Demand Justice, a progressive court reform group, already has a list of several women who they view as qualified, including NAACP Legal Defense Fund Director Sherrilyn Ifill and California Supreme Court Justice Leondra Kruger.

Other names floated to CBS News as potential court picks for Biden included federal court judges Kentanji Brown Jackson and Tanya Chutkan, both Obama appointees to the federal bench.

"Clinton and [Tim] Kaine really needed a third person on that ticket to really get out individuals who weren't that excited by them as a team, and I think Joe Biden kind of has the same issue going forward," Melissa Murray, law professor at New York University and host of the Supreme Court-focused podcast "Strict Scrutiny," told CBS News. "Imagine how much more energizing it would be to also pick someone [for SCOTUS] who would excite parts of the Democratic base."...

Asked about the likelihood of releasing a list of potential appointees, Biden's campaign did not directly respond and highlighted his history with the Supreme Court.

Long-time readers may recall, as detailed in this post from Feb 2016, that I was an advocate for Judge Ketanji Brown Jackson to be nominated by Prez Obama for the 2016 opening, in part because of her history as a public defender and her time as a member of the US Sentencing Commission.  I would continue to be excited to see her on any SCOTUS short list, and there are a number of women-of-color on the Demand Justice short-list that ought also excite folks eager to have more Justices who are more skeptical of the modern criminal justice status quo.

For those of us who follow closely the work of courts, I think it can be quite informative and important to get a view of what kinds of individuals a potential President would expect to appoint to our highest court.  I sincerely hope that Joe Biden does come out with a SCOTUS short-list before too long and that it includes people who seem likely to help produce more and better criminal justice rulings from the Supreme Court.

May 5, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

Prior related posts:

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

Monday, May 4, 2020

Rounding up some recent commentary on the current COVID prison state

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

Are federal judges approaching prison sentencing differently now that they see BOP ugliness up close?

The question in the title of this post is prompted by this notable new Forbes piece by Walter Pavlo headlined "After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future." I recommend the piece in full, though I fear it may be a bit too optimistic about the way the COVID era might impact the work of federal judges.  Here are excerpts:

In late March, U.S. District Judge Jesse Furman struggled to look for a way to free Nkanga Nkanga, a sixty-seven-year old former doctor with no prior criminal record who had admitted to unlawfully prescribing oxycodone and other controlled substances for non-medical purposes. Nkanga was held at MDC Brooklyn New York, a notoriously poorly run, dated and filthy prison operated by the Federal Bureau of Prisons (BOP).

Judge Furman, who had remanded Nkanga into custody in October 2019 after entering a guilty plea, was frustrated by what he could and could not do to free the inmate who was suffering from asthma and lingering conditions from a stroke years earlier.  Furman sentenced Nkanga to three years and was awaiting designation to Federal Medical Center Devens.  Assistant US Attorneys Jacob R. Fiddelman and Cecilia E. Vogel vehemently opposed the ailing doctor’s requests for release, frustrating Furman to call on legislatures and executive branch actions to untie his hands....

While judges may have a limited say in the release of an inmate, they have a big say in how long they are incarcerated....

In Ohio, a federal judge ruled that the BOP’s operation of FCI Elkton amounted to an 8th Amendment violation (Cruel and Unusual Punishment).  Lawyers for the BOP responded on April 28, 2020 that the measures the BOP took to curb the virus’s spread had been effective, stating in its emergency motion that, “These efforts have been working as the number of new cases has been reduced.”  I’m not sure where the attorneys got their stats but according to the BOP’s own website that tracks (under-reports) COVID-19 spread, showed a marked increase in cases....

Federal judges across the country have been hearing horrid stories about the BOP’s conditions and the agencies reaction, lack of action, to COVID-19. American Civil Liberties Union (ACLU) chapters have become involved, attempting to bring to light a federal agency’s inept and cruel response to the contagion of a virus that has infected over 2,000 inmates and killed 37. The BOP is inflicting even more, unmeasured, mental distress on both families and inmates.

The BOP’s failure to accurately report positive COVID-19 has endangered both its own staff members and inmates alike.  The promises to send people to home confinement and then taking it away, then possibly reinstating it, is cruel.  Locking minimum security inmates in high security prison cells for weeks and calling it a “quarantine” is something that needs to be investigated.  Directives that have now caused the cutting of communication with family (in-person visits, reduced telephone time and little access to email) is beyond comprehension at a time when people need some social interaction to keep their sanity. Many of these inmates have close family ties and what little correspondence they have had with family has relayed fear, sadness and oppression....

I have given up on prosecutors being a part of any criminal justice reform.  They create narratives, many of them farfetched, to justify long prison terms for crimes that may not have even occurred.  While I’m not saying that “nobody did the crime” what I am saying is that once a prosecutor gets a guilty plea, they exaggerate the crime, usually through inflation of the dollars associated with the crime and enhancements, to get longer sentences.  Judges, who make the ultimate determination of the amount of time a person spends in prison, could be the saving grace to reducing prison populations.  It only took a global pandemic to get them engaged.

Defendants would rather be in front of a judge on July 2020 than one on July 2019.  Judges are going to re-think their sentences.  Their courtrooms are currently jammed with motions for compassionate release, civil rights violations by BOP, and pre-trial pre-sentencing release motions.  Center stage at these hearings are BOP conditions, its policies, its care of inmates and how it treats those employed at these institutions.  In short, federal judges are seeing firsthand how the BOP executes the sentences they impose ... and it is ugly.

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

As always, I would be eager to hear (in comments or via email) from persons actively involved in federal sentencing work in this COVID era about whether they think judges are already starting to "re-think their sentences" and whether they are hopeful that federal judges are forever more going to think more "about the consequences that their sentences have on the lives of defendants and their families."  Though I sincerely hope that this current era proves to be "game-changing" for all judges (state and federal, trial and appellate), I am not all that optimistic for a number of reasons (which somewhat echo some points well-made in the great commentary I flagged here this past weekend).

First, as this notable recent Cato report detailed, a remarkably large number of current federal judges are former prosecutors.  As Palvo highlights, a lot of prosecutors get in the habit of assuming defendants are far worse than their convictions reflect and of believing long prison terms effectively achieve serve deterrence and incapacitation goals.  Once acclimated as prosecutors to viewing defendants as generally worse than they seem and tough punishment as critical for public safety, it is easy to take comfort in the notion that all defendants have "earned" whatever terrible prison fate might await them.

Second, judges always have an ultimate "trump card" to get folks out of dangerous prisons by being able to declare prison conditions unconstitutional in violation of the Eighth Amendment.  This commentary mentions the significant ruling by Judge James Gwin (discussed here), but does not note its outlier status.  There have been lots of other rulings nationwide, from federal and state judges, refusing to find constitutional violations and refused to push prison authorities to release inmates from environments where COVID is spread wildly.  (To reinforce my first point, I am pretty sure Judge Gwin never served as a prosecutor, but the federal judge in Louisiana (Judge Terry Doughty) who dismissed a similar suit around the same time served as a state prosecutor for over two decades.)

Third, the federal judicial agency that is supposed to help federal judges do their sentencing jobs better, namely the US Sentencing Commission, has so far failed to say "boo" about the COVID disruption and the ways federal judges are responding (and might be able to better respond).  Of course, this agency has been crippled now for the better part of two years by the failure of Prez Trump and the GOP-led Senate to come together on a slate of new Commissioners so that the agency could be operating at full force.  Still, the USSC staff has managed publish at least three major research documents in the last two months along with a number of smaller publications.  Federal judges might be more emboldened and feel more supported in taking new approaches to sentencing in the COVID era if the USSC was doing more than just whistling its standard sentencing tunes while federal prisons continue to burn.

That all said, my review of dozens of judicial grants of sentence reductions using § 3582(c)(1)(A)  (examples here and here and here and here and here and here) reveals that there are indisputably some — perhaps a good many — sitting federal sentencing judges who "get it" and recognize that the usual horrors and harms of prison are now even more horrible and harmful.  But I still fear that those judges now most concerned with COVID in federal prisons and BOP's inadequate response are just those same judges who have always been most attentive to "the lives of defendants and their families."  I sincerely hope the large number of former-prosecutors-turned-federal judges are starting to look at sentencing issues differently, but my hopefulness ability has been dampened by waiting for former-prosecutor-turned-Justice Samuel Alito to start looking at sentencing issues differently.

On the topic of hope, I would love to hear from readers (in comments or via email) that I am too pessimistic, that lots of judges are likely to look at lots of sentencing issues differently now.  Gosh knows we could all benefit from some small silver linings these days.

May 4, 2020 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

SCOTUS wastes no time taking up new case to address whether new Ramos jury unanimity rule is retroactive

In the US Supreme Court's Sixth Amendment unanimous jury ruling a couple of weeks ago, Ramos v. Louisiana, No. 18–5924 (S. Ct. April 20, 2020) (available here, basics here), a couple of the Justices already started debating whether the ruling would be give retroactive effect.  Interestingly, this new SCOTUS order list includes this new certiorari grant revealing that the Justices were eager to formally take up this issue before lower courts even had a chance to try to hash it out:

EDWARDS, THEDRICK V. VANNOY, WARDEN

The motion of petitioner for leave to proceed in forma pauperis is granted, and the petition for a writ of certiorari is granted limited to the following question: Whether this Court’s decision in Ramos v. Louisiana, 590 U. S. ___ (2020), applies retroactively to cases on federal collateral review.

Long-time readers should know that I generally view getting matters "right" in the criminal justice system as much more important than keeping that which is wrong "final."  (This is especially true  in the sentencing area as I explained in "Re-Balancing Fitness, Fairness, and Finality for Sentences" a few years ago.)  I always believe it especially important for new substantive laws and rules to be retroactive, and Ramos is obviously "just" a procedural rule.  But I have long hoped that the Supreme Court's Teague doctrine for limiting the retroactivity of procedural rules would someday identify the long-discussed "watershed" procedural rule that implicates the fundamental fairness and accuracy of the trial and thus should be fully retroactive.  See 489 U. S. 288, 311-312 (1989) (plurality opinion).  I suspect and hope jury unanimity might prove to be just such a rule (though I am certainly not holding my breath in light of the opinions in Ramos).

Prior related posts:

May 4, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, May 3, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts since lockdowns:

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

"Decarceration in the Face of a Pandemic"

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

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

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

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

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

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

Saturday, May 2, 2020

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

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

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

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

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

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

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

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

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

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

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

Friday, May 1, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Exciting DEPC and OJPC sentencing project: "Drafting Contest: An Ohio 'Second Look' Statute"

Second-Look-Contest_for-web-email-survey-2I am pleased to be able to note — and everyone should be prepared for me to repeatedly promote — an exciting new project from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC).  The basic details are explained on this webpage, more background appears in this document, and here are the essentials:

About

A robust national discussion about how best to remedy extreme and unwarranted prison sentences has prompted various new proposed remedies. In hopes of encouraging discussion and debate around the creation of a comprehensive “second-look sentencing provision” in Ohio law, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC), a statewide criminal-justice nonprofit, are sponsoring a legislative-drafting contest for law students and recent law school graduates.

Contest Objective and Deliverable

DEPC and OJPC encourage law students and recent graduates (from class years 2015-2020) to submit (1) proposed language for a new Ohio statutory provision and (2) accompanying commentary to allow courts to take a second look at Ohio prison sentences.  The proposal should address both substance (e.g., when and to whom does it apply) and procedure (e.g., how should such a second look be initiated and decided).  Entrants may, but are not required to, address the public-health issues that have come to the fore with COVID-19 (e.g., the proposal might have a special provision allowing more prisoners to seek resentencing when a public-health emergency has been declared).  Group submissions are acceptable and encouraged.

Contest Timeline and Awards

Submissions are due June 30, 2020.  The winning submission will receive a prize of $2,000, and up to two runner-up prizes of $1,000 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the groups members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full version of the winning proposal will also be presented to the Ohio Criminal Sentencing Commission at a forthcoming meeting and may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

May 1, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

Some prior related capital COVID posts:

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

Thursday, April 30, 2020

"Resentencing of Juvenile Lifers: The Philadelphia Experience"

The title of this post is the title of this notable new report authored by Tarika Daftary-Kapur and Tina Zottoli.  Here is its executive summary and key findings:

EXECUTIVE SUMMARY

We examined the Philadelphia District Attorney Office’s approach to juvenile lifer resentencing, which began in 2017 under the administration of District Attorney Seth Williams and has continued under the administration of District Attorney Larry Krasner.  For cases resentenced as of December 31st, 2019, we describe similarities and differences between the Williams and Krasner administrations in decision making and sentence length reductions, and we report on the recidivism rate and estimated cost savings for Pennsylvania as a result of release.

In June 2012, the Supreme Court of the United States (SCOTUS) ruled in Miller v. Alabama that mandatory life without-parole (LWOP) sentences were unconstitutional for individuals who were under the age of 18 at the time of their offense (hereafter, juveniles).  In January 2016, SCOTUS, ruled in Montgomery v. Louisiana that Miller applied retroactively.  Following Montgomery, individuals previously sentenced to mandatory LWOP as juveniles (hereafter, juvenile lifers) became eligible for resentencing.  Accordingly, in almost all such cases, the district attorney’s office makes an offer for a new sentence to the defendant, who is free to accept the offer or to have his new sentence decided by the judge.

At the time Miller was decided, Philadelphia had the largest number of juveniles sentenced to LWOP in the country (approximately 325).  Yet, they have been at the forefront of the resentencing process nationally, and at the time of this writing have only 10 juvenile-lifers left to re-sentence; the main reasons for delay being an open Post Conviction Relief Act petition or a pending appeal.

In Philadelphia, re-sentence offers are decided by The Juvenile Lifer Resentencing Committee ("The Lifer Committee"), which comprises 8 members of the executive staff at the District Attorney's Office.  The Lifer Committee’s decisions are based primarily on the consideration of case-summary memos prepared for the Committee by the Assistant District Attorney leading the resentencing process. Memos include information on the facts of the original case, demographic information on the victim and offender, mitigating information, the offenders’ prison adjustment (e.g.misconducts,rehabilitative programming), information on acceptance of responsibility and remorse, the victim’s family’s perspective on release, and reentry plans.

In January 2018, as the resentencing process was underway, Larry Krasner was sworn in as the District Attorney of Philadelphia after having run on a reform platform, ushering in dramatic change to the culture and policies of the District Attorney’s Office.  This change in administrations, during a crucial resentencing project, provided us with a unique opportunity to examine how the priorities and policies of the new administration have affected prosecutorial decision making.  Moreover, in light of the growing recognition that addressing the incarceration epidemic will necessitate re-evaluation of long-term prison sentences for individuals who were convicted of violent offenses, these outcome data have implications far beyond just those that pertain to the resentencing and release of juvenile lifers....

KEY FINDINGS

  • Pennsylvania has resentenced 88% of its juvenile lifers as compared to Michigan (52%) and Louisiana (approx. 15-22%); the three states in combination account for 2/3rd of all juvenile lifers in the United States.

  • Juvenile lifers can be considered low-impact releases in terms of risk posed to public safety.  At the time of our analyses, 269 lifers have been re-sentenced in Philadelphia and 174 have been released.  Six (3.5%) have been re-arrested.  Charges were dropped in four of the cases and two (1%) resulted in new convictions (one for Contempt and the other for Robbery in the Third Degree).  In comparison, nationally, an estimated 30% of individuals convicted of homicide offenses are rearrested within two years of release.

  • A subset of 38 cases were considered for resentencing by both the prior and current administrations.  The average sentence offered in these cases by the prior administration was 38.8 years; under Krasner, the average offer in these cases was 27.6 years.  Across all cases, this difference equates to an additional reduction of 394 years.

  • Overall, release of Philadelphia's juvenile lifers, to date, will result in an estimated minimum $9.5M savings in correctional costs for Pennsylvania over the first decade.

  • For both the Williams and Krasner administrations, Lifer Committee offers were explained by years in custody at time of resentencing, charge severity, whether the defendant was the primary actor, and whether a re-entry plan is in place.  There were some differences. While both administrations considered the maturity of the offender, the Williams administration relied on defendant age at the time of the offense and the level of planning, whereas the Krasner administration relied on a more holistic evaluation of the juvenile nature of the crime (e.g., involvement of an adult co-defendant, presence of peers, context in which the murder was committed).  Prior convictions also weighed more heavily under Krasner than the prior administration.

April 30, 2020 in Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2)

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

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

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

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

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

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

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

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

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

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

Bureau of Justice Statistics, reporting its "new" data from end of 2018, highlights "US Imprisonment Rate At Its Lowest Since 1996"

I received this morning an email blaring in all caps in the subject line "U.S. IMPRISONMENT RATE AT ITS LOWEST SINCE 1996." I thought this might be a COVID-based new analysis, but in fact the email was based on this new press release from the federal Bureau of Justice Statistics summarizing its latest report on US incarceration levels as of the end of 2018. Here is some text from the release:

In 2018, the combined state and federal imprisonment rate was 431 sentenced prisoners per 100,000 U.S. residents, which was the lowest rate since 1996, when there were 427 sentenced prisoners per 100,000 residents, the Bureau of Justice Statistics announced today.

Across a decade, the imprisonment rate fell 15%, from 506 sentenced prisoners per 100,000 U.S. residents in 2008 to 431 sentenced prisoners per 100,000 U.S. residents in 2018. During this period, the imprisonment rate dropped 28% among black residents, 21% among Hispanic residents, and 13% among white residents. In 2018, the imprisonment rate of black residents was the lowest since 1989.

At the end of 2018, a total of 22 states had imprisonment rates that were higher than the nationwide average. Louisiana had the highest rate (695 sentenced prisoners per 100,000 state residents), followed by Oklahoma (693 per 100,000), Mississippi (626 per 100,000), Arkansas (589 per 100,000) and Arizona (559 per 100,000). Minnesota, Maine, Massachusetts, Rhode Island and Vermont had the lowest imprisonment rates in the U.S., with each having fewer than 200 sentenced prisoners per 100,000 residents.

From the end of 2017 to the end of 2018, the total prison population in the U.S. declined from 1,489,200 to 1,465,200, a decrease of 24,000 prisoners. This was a 1.6% decline in the prison population and marked the fourth consecutive annual decrease of at least 1%.

Less than 15% of sentenced state prisoners were serving time for a drug offense at year-end 2017 (4% for possession), the most recent year for which offense-related data are available. Among sentenced state prisoners at year-end 2017, an estimated three-fifths of blacks and Hispanics (61% each) and nearly half of whites (48%) were serving time for a violent offense. At the same time, 23% of sentenced white prisoners in state prison were serving time for a property offense, compared to 13% each of sentenced black and Hispanic prisoners.

Among prisoners sentenced to serve more than one year in state or federal prison, an estimated 3% were age 65 or older at year-end 2018. An estimated 5% of sentenced white prisoners and 2% each of sentenced black and Hispanic prisoners were age 65 or older....

Two-thirds (67%) of admissions in 2018 of sentenced state prisoners were on new court commitments, while nearly a third (30%) of admissions were due to violations of post-custody supervision. (The remaining 3% were admitted for other reasons, such as other conditional release violations, returns from appeal or bond, and other types of admissions.) Five states admitted more than half of their prisoners for violating conditions of post-custody supervision: Washington (75%), Idaho (65%), Vermont (65%), Utah (52%) and New Hampshire (52%).

Because a lot happened in the year 2019 (e.g., the federal FIRST STEP Act and some parallel state reforms), these data would have seemed dated even without our new COVID world order.  But this full 38-page report (which only covers prisons and not jails) still provide a terrifically interesting an important accounting of many key realities and (pre-COVID) trends in incarceration nation.  BJS has released here along with the full report, which is titled simply "Prisoners in 2018," a helpful Summary and Data tables and Jurisdiction notes

April 30, 2020 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, April 29, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Catching up on lots more new sentencing and punishment scholarship

In this post two weeks ago I spotlighted more than a dozen new pieces of sentencing and punishment scholarship that had been posted to SSRN and that I did not find time to highlight in separate posts while consumed with COVID criminal justice issues. A few weeks later, I am still consumed with other matters and there are still more new pieces worth noting. So, I will again seek to catch up for lost time with another lengthy post linking to a lot of new scholarship from SSRN (listed here in alphabetical order by title):

Atwater and the Misdemeanor Carceral State by Alexandra Natapoff

The Constitutionalization of Parole: Fulfilling the Promise of Meaningful Review by Alexandra Harrington

Eighth Amendment Presumptive Penumbras by William W. Berry

Lady Justice Without Her Blindfold: An Analysis on How Race Influences Sentencing by Adefisayo Adegoye

Legislating for Profit and Optimal Eighth Amendment Review by Murat C. Mungan and Thomas J. Miceli

Populist Prosecutorial Nullification by Kerrel Murray

Pretrial Detention in the Time of COVID-19 by Jenny E. Carroll

The Prisoner and the Polity by Avlana Eisenberg

Race Decriminalization and Criminal Legal System Reform by Michael Pinard

State Prosecutors at the Center of Mass Imprisonment and Criminal Justice Reform by Nora V. Demleitner

The Unusual Cruelty of Nursing Homes Behind Bars by Rachel Lopez 

Victims, Right? by Anna Roberts

April 29, 2020 in Recommended reading | Permalink | Comments (0)

"Length of Incarceration and Recidivism"

The title of this post is the title of of this notable new report just released today by the US Sentencing Commission.  Here is a basic summary and key findings from this USSC webpage:

Summary

Length of Incarceration and Recidivism is the seventh publication in the Commission’s recent series on recidivism. This study examines the relationship between length of incarceration and recidivism, specifically exploring three potential relationships that may exist: incarceration as having a deterrent effect, a criminogenic effect, or no effect on recidivism. (Published April 29, 2020)

Report Findings
  • The Commission consistently found that incarceration lengths of more than 120 months had a deterrent effect.
    • Each of the research designs estimated that offenders incarcerated for more than 120 months were less likely to recidivate eight years after release. In the two models with the larger sample sizes, offenders incarcerated for more than 120 months were approximately 30 percent less likely to recidivate relative to a comparison group receiving less incarceration. In the third model, offenders incarcerated for more than 120 months were approximately 45 percent less likely to recidivate relative to a comparison group receiving less incarceration.
  • In two models, the deterrent effect extended to incarceration lengths of more than 60 months.
    • Specifically, offenders incarcerated for more than 60 months up to 120 months were approximately 17 percent less likely to recidivate relative to a comparison group sentenced to a shorter period of incarceration.
  • For incarceration lengths of 60 months or less, the Commission did not find any statistically significant criminogenic or deterrent effect.
    • When focusing on the shortest period of incarceration studied (12 to 24 months), the research designs yielded varying results, neither of which were statistically significant nor sufficiently reliable to make evidence-based conclusions.

April 29, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, April 28, 2020

Texas postpones a sixth execution due to coronavirus

As reported in this new AP piece, a "sixth scheduled execution of a Texas death row inmate has been delayed following the coronavirus spread around the state."  Here is more:

Edward Lee Busby’s execution had been set for May 6, but it was stayed for 60 days by the Texas Court of Criminal Appeals on Monday.

Busby, 47, was condemned for the 2004 suffocation of a retired 77-year-old college professor abducted in Fort Worth and whose body was later recovered in Oklahoma.

While the appeals court didn’t mention COVID-19 in its order, Busby’s attorneys had argued the execution should be delayed because they and others, including judges and personnel who carry out the execution, could be put at risk for getting the virus if it proceeded.

Three other executions that had been scheduled this year were also delayed by the appeals court while two others were delayed by local judges.

The next execution scheduled in the Lone Star State is slated for May 13 according to this Death Penalty Information Center listing. Given that Texas is opening a lot of facilities by the end of this week, it will be interest to see if the state tries to get its machinery of death operational by the middle of May.

Some prior related capital COVID posts:

April 28, 2020 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts since lockdowns:

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

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

"Policy Reforms Can Strengthen Community Supervision: A framework to improve probation and parole"

Figure1_650The title of this post is the title of this lengthy new report produced by The Pew Charitable Trusts Public Safety Performance Project. Here are excerpts from the report's "Overview":

Since 1980, the nation’s community supervision population has ballooned by almost 240 percent. As of 2016, 1 in 55 U.S. adults (nearly 4.5 million people) are on probation or parole, more than twice the number incarcerated in state and federal prisons and local jails. Historically, probation and parole were intended to provide a less punitive, more constructive alternative to incarceration, but a growing body of evidence suggests that a frequent emphasis on surveillance and monitoring of people under supervision rather than on promoting their success, along with the resource demands of ever-larger caseloads, has transformed community supervision into a primary driver of incarceration. This shift has produced an array of troubling consequences, not only for individuals on probation and parole but for taxpayers and communities as well.

In recent years, a growing body of evidence on what works in community supervision has revealed a set of key challenges that undermine the system’s effectiveness and merit attention from policymakers:

• Community supervision is a leading driver of incarceration....

• Excessive rules can present barriers to successful completion of supervision....

• Agencies often inappropriately supervise low-risk individuals....

• Overextended supervision officers have less time to devote to high-risk, high-need individuals....

• Many people with substance use or mental health disorders do not receive treatment.... 

To address these problems, some supervision agencies have begun to embrace evidence-based practices that have been shown to improve outcomes and reduce recidivism. These include the use of research-based assessment tools to identify an individual’s level of risk for reoffending, graduated sanctions, such as increased reporting or short-term incarceration, to respond to violations of supervision rules, and incentives to encourage rule compliance.  As a result of these and other policy changes, 37 states have experienced simultaneous reductions in crime and community supervision rates.

Although those results are encouraging, states and agencies need time to analyze their systems and enact reforms on a much larger scale to ensure that probation and parole function more effectively.  To help states meet this challenge, The Pew Charitable Trusts, in partnership with Arnold Ventures, established the Advisory Council on Community Supervision to develop a policy framework for state lawmakers, court officers, and community corrections personnel. The council featured a diverse group of representatives from probation and parole agencies, the courts, law enforcement, affected communities, the behavioral health field, and academia. Drawing on its members’ extensive experience and knowledge, the council agreed on three broad goals for the next generation of community supervision: better outcomes for people on supervision, their families, and communities; a smaller system with fewer people on supervision; and less use of incarceration as a sanction for supervision violations, particularly breaches of the rules.

With those goals in mind, the council developed a menu of policies that state decision-makers and supervision administrators can use to reshape community supervision. Arnold Ventures supported the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota to examine the research underlying the policies and practices identified by the council, and where such an evidence base exists, it is summarized and cited in this framework. The recommendations are arranged according to seven broad objectives:

• Enact alternatives to arrest, incarceration, and supervision....

• Implement evidence-based policies centered on risks and needs....

• Adopt shorter supervision sentences and focus on goals and incentives....

• Establish effective and appropriate supervision conditions....

• Develop individualized conditions for payment of legal financial obligations....

• Reduce use of and pathways to incarceration.... 

• Support community supervision agencies.... 

April 28, 2020 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Monday, April 27, 2020

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

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

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

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

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

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

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

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

Prior related post:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SCOTUS dismisses NYC Second Amendment case as moot (and Justice Alito dismisses public safety claims with gun rights at issue)

The Supreme Court resolved a closely watched Second Amendment case this morning, in a manner that is sure to be disappointing to Second Amendment fans.  The Court's two-page per curiam opinion in New York State Rifle and Pistol Association v. City of New York, No. 18–280 (S. Ct. Apr. 27, 2020) (available here), starts this way:

In the District Court, petitioners challenged a New York City rule regarding the transport of firearms.  Petitioners claimed that the rule violated the Second Amendment.  Petitioners sought declaratory and injunctive relief against enforcement of the rule insofar as the rule prevented their transport of firearms to a second home or shooting range outside of the city. The District Court and the Court of Appeals rejected petitioners’ claim.  See 883 F. 3d 45 (CA2 2018).  We granted certiorari. 586 U. S. ___ (2019).  After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint.  App. 48.  Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot.

Justice Kavanaugh issued a two-paragraph concurrence that concludes this way: "I share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court."

Justice Alito, joined entirely by Justice Gorsuch and mostly by Justice Thomas, authored a 31-page dissent. Justice Alito not only disputes the claim that the petitioners' claims are moot, but he also explains why he thinks it "is not a close question" on the merits "that the City ordinance violated the Second Amendment."  Second Amendment fans will like a lot of what Justice Alito has to say, but I think criminal justice fans will want check out how Justice Alito is quick to dispute the claims made by NYPD Inspector Andrew Lunetta in an affidavit explaining why the NYC law was "necessary to address public safety concerns." 

Justice Alito spend four pages explaining why he disputes and discounts and ultimately dismissed the public safety assertions of a 30-year veteran of the New York Police Department.  He calls some of what the police official asserted "not relevant," and says that other statements "actually undermine the City’s public safety rationale."  On another front, he states the NYPD Inspector is making a "strange argument" and call another claim "dubious on its face"  and yet another "more than dubious."  Justice Alito concludes his analysis with this sentence: "The City’s public safety arguments were weak on their face, were not substantiated in any way, and were accepted below with no serious probing." 

Though I know that this is just wishful thinking, I sure hope Justice Alito's eagerness to question, dissect and dispute claims made by police — and prosecutors and others who make all sort of debatable claims what is "necessary to address public safety concerns" — will extend to cases involving assertions by individuals of claims under other Amendments like the Fourth and Fifth and Sixth and Eighth.  But I fear only Second Amendment claims lead Justice Alito to question how government officials seek to leverage claims of what public safety makes necessary.

April 27, 2020 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (0)

A dozen GVRs based on Ramos (with Justice Alito always commenting along the way, and Justice Thomas dissenting in a few)

Of criminal justice interest on this order list released by the Supreme Court this morning are a series of orders sending cases back to lower courts for reconsideration in light of the Court's unanimous juries ruling last week in Ramos v. Louisiana (basics here).  I count 12 total cases being remained, nearly all from Louisiana and one from Oregon.  Here is how the first of these orders reads:

The petition for a writ of certiorari is granted.  The judgment is vacated, and the case is remanded to the Court of Appeal of Louisiana, First Circuit for further consideration in light of Ramos v. Louisiana, 590 U. S. ___ (2020).  Justice Alito, concurring in the decision to grant, vacate, and remand: In this and in all other cases in which the Court grants, vacates, and remands in light of Ramos v. Louisiana, I concur in the judgment on the understanding that the Court is not deciding or expressing a view on whether the question was properly raised below but is instead leaving that question to be decided on remand.  Justice Thomas would deny the petition for a writ of certiorari.

Notably, this comment by Justice Alito appears with every remand order, but Justice Thomas indicates he would deny the petition in only five of the twelve cases.  (I would guess that the five cases that Justice Thomas would deny are in a distinct procedural posture from the other seven.)

Prior related posts:

April 27, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, April 26, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Saturday, April 25, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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