Monday, July 13, 2020

"Abolishing Private Prisons: A Constitutional and Moral Imperative"

The title of this post is the title of this new paper authored by andré douglas pond cummings and Robert Craig available via SSRN. Here is part of the paper's abstract:

President Richard Nixon declared a “War on Drugs” in 1971. President Ronald Reagan federalized and militarized this “war” in the 1980s.  Shortly after the War on Drugs was declared, federalized, and militarized, a private for-profit company in Tennessee sprang up calling itself the Corrections Corporations of America (CCA).  The creation of this private prison corporation ushered in a new carceral era where the traditional government function of adjudicating crime, punishment, and imprisonment became intertwined with the corporate governance principles and goals of profit maximization for shareholders; executive compensation based on profits and share price; forward-looking statements forecasting more robust prison populations; and increased profit levels built almost solely on human misery and degradation....

Private prison executives and lobbyists seek to increase privatization of the industry by promising that their prisons are run more efficiently at lower costs, with greater safety records, improved facilities, and with greater outcomes for prisoners.  However, studies and reports now show that these declarations by private prison executives and lobbyists are deceitful.  Private prisons are increasingly being shown to cost contracting governments’ more, not less, are less safe, and less economical.  The exchange of taxpayer funds from governments and municipalities into the hands of corporate shareholders and executives is nothing more than an unabashed transfer of taxpayer monies into the personal accounts of those with a stake in private prisons — which are being shown to provide no real benefit in return.  Private incarceration makes no sense morally, and it is increasingly apparent that the industry makes no sense economically and, in fact, is likely unconstitutional....

This article will show: first, that mixing profit with the core governmental function of incarceration leads to damaging consequences for prisoners, employees (of both private and public prisons), and the public at large while benefiting a small group of executives and shareholders; second, that the implementation of for-profit incarceration in the United States hampers access to justice, particularly for already marginalized groups; and third, that the serious constitutional concerns noted by Professor Robbins have been borne out, and they now deserve consideration by the United States Supreme Court.

July 13, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Friday, July 10, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, July 09, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior Michael Cohen posts:

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

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

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

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

A few of many prior related posts:

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

Wednesday, July 08, 2020

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

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

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

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

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

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

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

"Retroactivity & Recidivism: The Drugs Minus Two Amendment"

Cover_Drugs-Minus-TwoThe title of this post is the title of this notable new US Sentencing Commission report.  A summary of the report is provided on this USSC webpage and provides these basics:

Summary

This publication analyzes recidivism rates among drug offenders who were released immediately before and after retroactive implementation of the 2014 "Drugs Minus Two" Amendment.

The report tracked the recidivism rate of two study groups:

  • Retroactivity Group: 7,121 offenders who received sentence reductions through retroactive application of the Drugs Minus Two Amendment and who were released early from October 30, 2015, to May 31, 2016.
  • Comparison Group: 7,132 offenders who would have been eligible for sentence reductions through retroactive application of the Drugs Minus Two Amendment but were released between May 1, 2014, and October 29, 2015, having served their full sentences before the Drugs Minus Two Amendment could be retroactively applied

Findings 

The Commission's report aims to answer the research question, "Did the reduced sentences for the Retroactivity Group result in increased recidivism?"  The Commission found the following:

  • There was no statistically significant difference in the recidivism rates of offenders released early pursuant to retroactive application of the Drugs Minus Two Amendment and a comparable group of offenders who served their full sentences.
  • This outcome may be attributed, at least in part, to the eligibility criteria required by the Commission, and the careful consideration of those criteria by judges — particularly public safety considerations — in exercising their discretion to grant or deny retroactivity motions.

Interestingly, though apparently not reaching a level of statistical significance, the Sentencing Commission's data actually show that the group who received reduced sentences had a lower rate of recidivism.  From the Key Findings at page 6 of the full report (with my emphasis added):

There was no statistically significant difference in the recidivism rates of the Retroactivity Group (offenders who were released on average 37 months early through retroactive application of the Drugs Minus Two Amendment) and the Comparison Group (offenders who would have been eligible for retroactivity but had served their sentences before retroactivity took effect). Over a three-year period following their release from prison, the Retroactivity Group had a recidivism rate of 27.9 percent compared to 30.5 percent for the Comparison Group. This outcome may be attributed, at least in part, to the eligibility criteria required by the Commission, and the careful consideration of those criteria by judges — particularly public safety considerations — in exercising their discretion to grant or deny retroactivity motions.

The similarity in the recidivism rates of the Retroactivity Group and the Comparison Group held true across all drug types. Among offenders convicted of offenses with the same primary drug type — Powder Cocaine, Crack Cocaine, Heroin, Marijuana, Methamphetamine, and Other Drugs — offenders in the Retroactivity Group had similar recidivism rates to offenders in the Comparison Group, although the recidivism levels varied by drug type. The highest rates were observed among Crack Cocaine offenders (35.1% in the Retroactivity Group and 37.5% in the Comparison Group) and the lowest rates among Powder Cocaine offenders (19.5% in the Retroactivity Group and 22.3% in the Comparison Group).

I am quite inclined to embrace the USSC's assertion that the exercise of wise judicial discretion in deciding who should get the benefit of retroactive implementation of the 2014 "Drugs Minus Two" Amendment explains why recidivism rates were relative low for those defendants who received reduced sentences. Among other benefits of this conclusion, it should make Congress and the USSC ever more confident that they can safely (and should as a matter of fairness and justice) make any any all reduced sentences fully retroactive (subject to discretionary judicial review upon implementation).

July 8, 2020 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, July 05, 2020

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

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

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

Some of many prior recent related posts on CR grants:

July 5, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Thursday, July 02, 2020

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

On the cusp of a (long) weekend when we celebrate American freedom, it seems fitting that America's federal government is still experiencing a declining population of persons being deprived of freedom through its prison system.  Specifically, today's check on the federal Bureau of Prisons' updated "Total Federal Inmates" shows a continuation of historic declines: in a prior post here, I detailed that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; though June, as detailed here, declines continued at a slightly reduced rate of about 950 persons on average.

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

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

A few of many prior related posts:

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

Tuesday, June 30, 2020

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

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

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

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

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

 

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

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

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

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

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

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

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

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

Friday, June 26, 2020

More great new Politico Magazine coverage now on "Justice Reform: Prison Conditions"

In this post a couple of months ago, I noted that the Politico Magazine had produced a bunch of great new articles on criminal justice reform issues under the heading "Justice Reform: The Decarceration Issue."  Those article are still collected at this link, but they are now topped by another great new set of pieces under the heading "Justice Reform: Prison Conditions."  Here are the lengthy pieces under this heading with their full headlines:

The Lifers Changing Prisons From Inside: Over 40 years, the National Lifers of America rewrote the rules of prison reform. Now they've hit a new obstacle: connecting with the outside world during a pandemic.

San Quentin’s Breakthrough Prison Newsroom: A huge podcast hit and a revived newspaper mean that policymakers really have to listen. 

10 Races That Could Change the System: Forget Washington. The real challenges to the system are coming from cities and states. Here are the ones to watch.

How U.S. Prisons Became Ground Zero for Covid-19: Tight quarters, strained hygiene practices and guards moving to and from their community put prisons at risk of becoming coronavirus hotbeds.

Prior related post:

June 26, 2020 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Thursday, June 25, 2020

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

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

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

Prior recent related posts since lockdowns:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few of many prior related posts:

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

Wednesday, June 24, 2020

Making the case against LWOP, the bigger and badder death penalty

This new NBC News commentary by Peter Irons makes the case for paying more attention to, and getting rid of, LWOP sentences.  The piece's full headline highlights its themes: "A prison sentence of life without parole isn't called the death penalty.  But it should be.  Before we cheer the huge drop in capital punishment cases, we need to revisit and replace the extended death penalty — life without parole."  I recommend the full piece, and here are excerpts:

[A]s more and more prosecutors seek the death penalty more infrequently, if at all­­, they routinely press for LWOP sentences in first-degree murder cases, and sometimes for second-degree murder and armed robbery.  There’s no uniform standard to decide which defendants deserve to eventually be eligible for parole and which don’t; these choices are inherently “arbitrary and capricious” and the antithesis of fairness.

As a result, even with death-sentenced inmates at a modern low of some 2,800, there are now more than 53,000 serving LWOP sentences, a four-fold increase in the past two decades.  Another 44,000 are serving “virtual life” sentences of 50 or more years, past the life expectancies of almost all inmates. In other words, some 97,000 inmates have still been condemned to die behind bars....

Those who receive life sentences with parole eligibility return to prison for another violent crime at a rate of only 1.2 percent.  Though LWOP inmates, by definition, cannot present any evidence of rehabilitation to a parole board, it’s reasonable to expect that ending life without parole sentences would not unleash a new murder wave.  Doing so would also save taxpayers up to $40,000 for each year of further incarceration, not to mention the costs for the growing number of elderly inmates with serious health problems. That’s the pocketbook argument against the practice.

A better argument, in my opinion, is that restoring parole eligibility to all convicted murderers (with no guarantee of release, of course) would encourage inmates to keep their disciplinary records clean and to participate in educational and vocational programs to improve their chances of successful re-entry into their communities and job markets....

My personal preference would be to revise state laws to give all convicted murderers a chance for parole after serving a minimum of 10 or 15 years (those who get life sentences with the possibility of parole serve an average of 13.4 years), and a presumption of parole after age 55 or 60, by which time most inmates have “aged out” of further crime.  But I understand both are unlikely of adoption in all but the bluest states, so I suggest instead urging governors to exercise their pardon and commutation powers in cases of demonstrated rehabilitation and remorse....

The nascent campaign against LWOP has already secured a beachhead from which it can press for eventual abolition. The Supreme Court ruled in 2012 in Miller v. Alabama that juvenile murderers cannot be given a mandatory LWOP sentence.  By the same token, even those LWOP inmates who murdered as adults deserve resentencing consideration.  The only factor in deciding whether to return an inmate to society is whether they are likely to endanger others.  To say that any prisoner, whatever their crime and sentence, cannot possibly show remorse and rehabilitation, as a life-without-parole punishment does, is to say that these “bad” people — unlike the rest of us — cannot change for the good and denies their common humanity.

June 24, 2020 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

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

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

The Creation of a Crisis by Jalila Jefferson-Bullock:

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

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

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

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

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

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

Tuesday, June 23, 2020

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

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

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

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

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

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

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

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

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

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

Bill text is available here.

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

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

Friday, June 19, 2020

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

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

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

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

 

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

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

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

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

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

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

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

Thursday, June 18, 2020

"Is Solitary Confinement a Punishment?"

The title of this post is the title of this new essay authored by John F. Stinneford now available via SSRN.  Here is its abstract:

Nulla poena sine lege — no punishment without law — is one of the oldest and most universally accepted principles of English and American law.  Today, thousands of American prisoners are placed in long-term solitary confinement despite the fact that such placement is authorized neither by penal statute nor by judicial sentence.  Is solitary confinement “punishment without law,” or is it a mere exercise of administrative discretion?

In 1890, in a case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding in recent decades.  Part I of the Essay that follows describes the Supreme Court’s existing case law governing prison officials’ discretion to impose harsher conditions on inmates. Part II analyzes English and American constitutional history relating to the need to limit discretion over punishment, the danger of executive discretion in the infliction of punishment, and the distillation of a standard relevant to determining whether a given government action is a punishment.  Finally, Part III checks the accuracy of the Supreme Court’s conclusion in Medley that the harshness of solitary confinement makes it a new punishment by examining historical and modern empirical data relating to the effects of solitary confinement, and concludes that the Medley court was correct.

June 18, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

BOP accounting of "Total Federal Inmates" continues to drop, though pace may be slowing

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

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But maybe, as I have wistfully speculated before, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  Time will tell.

Critically, though, dare anyone start wanting to think federal prisons are full of good stories, this new Marshall Project piece provides a reminder of grim realities in its full headline: "'I Begged Them To Let Me Die': How Federal Prisons Became Coronavirus Death Traps. The Bureau of Prisons was unprepared and slow to respond. Then officials took steps that helped spread the virus." 

A few of many prior related posts:

June 18, 2020 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, June 17, 2020

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

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

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

Prior recent related posts since lockdowns:

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

"A Comparison of the Female and Male Racial Disparities in Imprisonment"

The title of this post is the title of this notable new paper now appearing on SSRN and authored by Junsoo Lee, Paul Pecorino and Anne-Charlotte Souto.  Here is its abstract:

We examine the behavior of the incarceration rate and the racial disparity in imprisonment for black women and compare this to the results for black men over the period 1978-2016.  At the beginning of our sample, the racial disparity is high and of similar magnitude for both groups.  Black women and black men both experience a large run-up in incarceration between 1978-1999, where this run-up can be entirely explained by the increase in overall incarceration in the United States during this period.  Black women and black men both experience a decrease in incarceration between 1999 and 2016, but the decline for women is much steeper.

The decline in incarceration for black women is entirely explained by a decline in the racial disparity, where for men, a decline in the disparity and a decline in the overall male incarceration rate are both important.  At the state level, there are frequent upturns in the racial disparity in the 1980s for both black women and black men, followed by frequent downturns in the 1990s.  The data provide no prima facie evidence that the 1994 Crime Bill exacerbated the racial disparity in imprisonment.  By the end of the sample, the racial disparity for females is 1.8, and the disparity for males is 5.2, where this disparity measures the per capita black imprisonment rate divided by the per capita white imprisonment rate for each group.

June 17, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, June 16, 2020

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

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

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

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

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

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

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

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

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

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

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

Saturday, June 13, 2020

"Pandemics, Risks and Remedies"

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

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

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

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

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

Friday, June 12, 2020

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

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

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

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

Prior recent related posts since lockdowns:

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

Thursday, June 11, 2020

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

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

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

A few of many prior related posts:

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

Wednesday, June 10, 2020

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

"Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring"

The title of this post is the title of this notable new paper authored by Kate Weisburd and recently posted to SSRN.  Here is its abstract:

As courts and legislatures increasingly recognize that “digital is different” and attempt to limit government surveillance of private data, one group is conspicuously excluded from this new privacy-protective discourse: the five million people in the United States on probation, parole, or other forms of community supervision.  This Article is the first to explore how warrantless electronic surveillance is dramatically transforming community supervision and,as a result, amplifying a growing privacy-protection disparity: those in the criminal legal system are increasingly losing privacy protections even while those not in the system are increasingly gaining privacy protections.  The quickly expanding use of GPS-equipped ankle monitors, as well as other forms of electronic searches, reflects unprecedented government surveillance that has yet to be regulated, scrutinized, or limited in any meaningful way.

This Article explores this phenomenon in its own right but also contends that the expanding disparity in privacy protections is explained by two underappreciated but significant shifts in Fourth Amendment jurisprudence.  First, on the theory that defendants “choose” surveillance in exchange for avoiding incarceration, courts increasingly invoke consent to justify otherwise unconstitutional surveillance of people on community supervision.  While the debate over criminal justice bargaining is not new, the expanded reliance on consent in this context reveals blind spots in the existing debate.  Second, courts also increasingly accept government arguments in favor of otherwise unconstitutional electronic monitoring under a general “reasonableness” standard, as opposed to the traditional “special needs” doctrine.  This insidious shift toward “reasonableness” threatens to jeopardize the precise interests the Fourth Amendment was designed to protect.  But even under a reasonableness standard, electronic surveillance of people on community supervision should be more circumscribed.  Ultimately, this Article reveals how the significance of these two shifts extends beyond electronic surveillance and represents a new frontier of sanctioning warrantless searches without any level of suspicion or exception to the warrant requirement.

June 10, 2020 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

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

Tuesday, June 09, 2020

Big new Heritage report takes stock of DOJ's risk and needs assessment system resulting from FIRST STEP Act

The Heritage Foundation has this week released this new 30-page report authored by Charles Stimson that takes a close look at the risk and needs assessment system created by the Justice Department as required by the FIRST STEP Act.  The title of the report captures its basic theme: "The First Step Act’s Risk and Needs Assessment Program: A Work in Progress."  Here is a summary from this Heritage webpage:

The First Step Act is a significant achievement. It was a rare moment in time when a bipartisan congressional delegation and an Administration supported meaningful and comprehensive criminal justice reform. Stakeholders from across the ideological spectrum came together to get behind much-needed legislation. A key pillar to that reform ultimately succeeding is the creation and implementation of a 21st-century risk and needs assessment system. To date, the Department of Justice has risen to part of the challenge by publishing PATTERN, its risk assessment tool. No doubt, PATTERN will continue to be refined, as any modern risk assessment program is only as good as the latest science and research.

And here is the conclusion of the full report:

The First Step Act is a significant achievement.  It was a rare moment in time when a bipartisan congressional delegation and an Administration supported meaningful and comprehensive criminal justice reform.  Stakeholders from across the ideological spectrum came together to get behind much-needed legislation.

A key pillar to that reform ultimately succeeding is the creation and implementation of a 21st-century risk and needs assessment system.  To date, the DOJ has risen to part of the challenge by publishing PATTERN, its risk-assessment tool.  In short order, it refined PATTERN after taking into consideration a wide variety of viewpoints.  No doubt, PATTERN will continue to be refined, as any modern risk-assessment program is only as good as the latest science and research.

With respect to developing a new and improved needs-assessment program under PATTERN, the DOJ has so far fallen short, but has acknowledged an ambitious time frame in which to publish that program.

As PATTERN matures, and more data becomes available, we will be able to ascertain how accurate PATTERN is in predicting recidivism and whether, in its application, it proves to be both race and gender neutral and an effective tool.  The DOJ should continue to be prudent in studying the data as it accrues and considering a wide variety of feedback on PATTERN, and should base future decisions based on fact and the best science available, not political considerations or outcome-based desires.

June 9, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Rounding up some carceral headlines and stories as COVID continues

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

Monday, June 08, 2020

SCOTUS issues short unanimous opinion clarifying prisoner filing limits of PLRA

With a large number of high-profile (and likely divisive) civil cases still left to resolve in the current SCOTUS Term, the US Supreme Court this morning just issued one little unanimous opinion and it happened to be the one last case on the docket dealing with criminal justice matters.  Specifically, Justice Kagan wrote a seven-page opinion for a unanimous Court in Lomax v. Ortiz-Marquez, 18-8369 (S. Ct. June 8, 2020) (available here).  The opinion begins and ends this way:

To help staunch a “flood of nonmeritorious” prisoner litigation, the Prison Litigation Reform Act of 1995 (PLRA) established what has become known as the three-strikes rule.  Jones v. Bock, 549 U.S. 199, 203 (2007).  That rule generally prevents a prisoner from bringing suit in forma pauperis (IFP) — that is, without first paying the filing fee — if he has had three or more prior suits “dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.” 28 U.S.C. §1915(g).  Today we address whether a suit dismissed for failure to state a claim counts as a strike when the dismissal was without prejudice.  We conclude that it does: The text of Section 1915(g)’s three-strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without....

The text of the PLRA’s three-strikes provision makes this case an easy call.  A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice.  We therefore affirm the judgment below.

June 8, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Sunday, June 07, 2020

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

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

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

 

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

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

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

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

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

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

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

Prior recent related posts since lockdowns:

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

Friday, June 05, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, June 04, 2020

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

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

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

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

Prior related posts:

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

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

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

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

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

A few of many prior related posts:

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

Tuesday, June 02, 2020

Senate Judiciary Committee about to start "Examining Best Practices for Incarceration and Detention During COVID-19"

At 10:00 am this morning, June 2, 2020, the Senate Judiciary Committee has scheduled this full committee meeting on "Examining Best Practices for Incarceration and Detention During COVID-19."  Here are the scheduled witnesses:

Panel I
Mr. Michael Carvajal
Director
Federal Bureau of Prisons
Washington , DC
 
Dr. Jeffry D. Allen, MD
Medical Director
Federal Bureau of Prisons
Washington , DC

Disappointingly, as of this writing, there is no written testimony linked from the Senate website from any of these witnesses. If any becomes available later, I will be sure to post it.

UPDATE: I am pleased to see that there is now linked written testimony for all the witnesses listed above.  Here is the written testimony for both BOP witnesses, and here are excerpts on "Current Status" and "Home Confinement":

The Bureau manages the health and treatment of approximately 149,000 inmates in BOP facilities and RRCs.  Over half of our institutions have no COVID-19 positive cases among inmates or staff.  Indeed, two-thirds of our positive cases are in just 7 of our 122 institutions nationwide.  As of June 1, 2020, across all facilities, there are 1,650 federal inmates who are currently COVID-19 positive based on test results.  There are also currently 171 Bureau staff who have confirmed positive test results for COVID-19 nationwide, with 445 staff recovered and returning to work.

In total, from March 1, 2020, the date of the beginning of the national emergency proclaimed by President Trump, until today, 5,323 inmates total have tested positive for COVID19 and to-date, 3,784 have recovered.  More than 80 percent of infected individuals have not become significantly ill.  The number of hospitalized inmates — those who became significantly ill — is currently only 83 in total.  And in fact, the number hospitalized is on a significant downward trajectory (see attached), suggesting that our attempts to mitigate the transmission of the virus is effective.  Regrettably, there have been 68 federal inmate deaths from COVID-19.

To-date, the Bureau’s overall infection rate is approximately 4%, including clinically-probable and suspect cases, and based on the total number of inmates in custody.  The BOP's death rate of those infected is approximately 1.1% and is slightly lower than the US rate of 1.3%.  The BOP's rate of hospitalization has continued to decline over time with only 83 inmates currently hospitalized and only 22 of those on ventilators....

As the pandemic grew more widespread, the Bureau began aggressively screening the inmate population for inmates who were appropriate for transfer to RRC or Home Confinement for service of the remainder of their sentences.  On March 26, 2020 and April 3, 2020, Attorney General Barr issued memoranda to the Bureau directing us to increase the use of Home Confinement, particularly at institutions that were markedly affected by COVID-19, for vulnerable inmates.  The CARES Act, signed by President Trump on March 27, 2020, further expanded our ability to place inmates on Home Confinement by lifting the statutory limitations contained in Title 18 U.S.C. § 3624(c)(2) during the course of the pandemic.  I am pleased to note that we currently have 6,120 inmates in RRC and 6,398 on Home Confinement.  This is an 124% increase in HC from March 26, 2020. There are an additional 985 who are scheduled to transfer to Home Confinement in the coming weeks.  While we continue to make robust strides in these placements to reduce risk of spread to the inmate population and staff, public health and safety must remain our highest priority.  The Attorney General has issued guidance as to which inmates should be considered for home confinement.  Staff are conducting individualized assessments to ensure inmates are appropriate for community placement both from a public safety perspective and given their own specific needs and circumstances.  Additionally, we must ensure inmates who release to Home Confinement have a viable residence in which to reside.

It should go without saying that while we are dedicated to the protection of our inmates’ health and safety, we also have to consider — as the Attorney General’s guidance emphasized — that inmates who presented a risk of public safety because of their criminal acts or other factors cannot be released.  Neither can we release inmates who would be worse off outside Bureau facilities than inside, such as those whose medical conditions could not be adequately cared for by health systems that are themselves overwhelmed by the response to COVID infections in the general community.  Nor can we release inmates who do not have safe housing for themselves or housing that is not subject to appropriate safeguards for home confinement, which is still, after all, a form of incarceration for persons convicted of crimes whereby such persons are still serving a federal sentence.

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

Monday, June 01, 2020

Senator Harris and Representative Jeffries write to AG Barr to express "concern about the process for transferring incarcerated individuals to home confinement"

As reported in this AP piece, "Democratic lawmakers are raising questions about the federal Bureau of Prisons’ release of high-profile inmates and are calling for widespread testing of federal inmates as the number of coronavirus cases has exploded in the federal prison system."  Here is more from the press piece:

Sen. Kamala Harris and Rep. Hakeem Jeffries sent a letter Monday to Attorney General William Barr and Bureau of Prisons Director Michael Carvajal over the home confinement policies. They expressed concern that a number of high-profile inmates, including former Trump campaign chairman Paul Manafort and former Trump lawyer and fixer Michael Cohen, had been released despite not meeting all the criteria that the agency has set for inmates prioritized for home confinement.  “As President Trump’s associates are cleared for transfer, tens of thousands of low-risk, vulnerable individuals are serving their time in highly infected prisons,” the lawmakers wrote.

They pointed to the case of Andrea Circle Bear, a 30-year-old pregnant inmate whose baby was delivered by cesarean section while she was on a ventilator after being hospitalized with coronavirus symptoms and who died in federal custody in late April.  They also pointed to the case of a 67-year-old man serving a sentence at FCI La Tuna, a low-security prison in Texas, who has advanced coronary disease and who was initially told he would be released to home confinement but later was told it was rescinded because he hadn’t served at least half of his sentence.

Prison advocates and congressional leaders have been pressing the Justice Department for weeks to release at-risk inmates ahead of a potential outbreak, arguing that the public health guidance to stay 6 feet (1.8 meters) away from other people is nearly impossible behind bars. And they’ve raised alarm about what they’ve described as mixed messages from the prison agency about the criteria for who can be released....

The Bureau of Prisons has disputed that it is giving any preferential treatment to high-profile inmates and has said it has placed 3,544 inmates on home confinement since Barr first issued a memo ordering an increase in the use of home confinement in late March. The response from the Bureau of Prisons on the coronavirus has raised alarm among advocates and lawmakers about whether the agency is doing enough to ensure the safety of the about 137,000 inmates serving time in federal facilities.

As of Monday, 5,234 inmates had tested positive for COVID-19 since late March; the Bureau of Prisons said 3,605 had recovered. At least 64 inmates have died. And even though officials have stressed infection and death rates inside prisons are lower compared with outside, a high number of inmates tested come back positive — signs that COVID-19 cases are left uncovered.

Separately, Sens. Elizabeth Warren and Cory Booker asked the Bureau of Prisons to immediately begin conducting “universal diagnostic testing” for all federal inmates and staff members, including those held at privately run facilities, and to publicly release daily data on the number of inmates and staff members who have been tested. “Widespread and continued diagnostic testing is crucial to controlling the COVID-19 pandemic,” they wrote. The lawmakers said the Bureau of Prisons has “not been forthcoming with specific testing protocols” and is not providing specific information about the testing capacity at federal prisons across the U.S.

The full three-page letter referenced in this article is available at this link, and it concludes with a number of questions that would be nice to see answered (e.g., "How many individuals has BOP recommended for transfer to home confinement since March 26, 2020?... Please provide a breakdown of those recommendations by age, gender, race, and crime of conviction.").

June 1, 2020 in Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, May 31, 2020

Despite a short work week, still another long list of new COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

Another (too) busy work week for me meant that I needed this weekend to catch up on last week's  COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).  As readers may recall, my last post with a list of recent grants (covering grants mostly from May 16 to 21) was quite lengthy.  Perhaps due in part of a shorter work-week, this listing is not quite as long, but it still represents lots of uplifting news for certain defendants and their loved ones during a time when I think we can all benefit from some positivity.  So:

United States v. Somerville, No. 2:12-CR-225-NR, 2020 WL 2781585 (WD Pa. May 29, 2020)

United States v. Chester, No. 6:17-CR-06151 EAW, 2020 WL 2771077 (WDNY May 29, 2020)

United States v. Acoff, No. 3:15cr157 (MPS), 2020 WL 2781798 (D Conn. May 29, 2020)

Harrell v. United States, No. 13-20198, 2020 WL 2768883 (ED Mich. May 28, 2020)

United States v. Gonzalez, No. 12-CR-326 (JMF), 2020 WL 2766048 (SDNY May 28, 2020)

United States v. Feucht, No. 11-CR-60025-MIDDLEBROOKS, 2020 WL 2781600 (SD Fla. May 28, 2020)

United States v. Silkeutsabay, No. 2:13-CR-0140-TOR-3, 2020 WL 2747401 (ED Wash. May 27, 2020)

United States v. Whyte, No.  4:12cr00021-002, 2020 WL 2754761 (WD Va. May 27, 2020) 

United States v. Body, No. 18 CR 503-1, 2020 WL 2745972 (ND Ill. May 27, 2020)

United States v. Jackson, No. 5:02-cr-30020, 2020 WL 2735724 (WD Va. May 26, 2020)

United States v. Morris, No. 12-154 (BAH), 2020 WL 2735651 (DDC May 24, 2020)

Nearly a dozen grants in a short week is still remarkable, and this group can be rounded up to an even dozen with McCoy v. United States, No. 2:03-cr-197, 2020 WL 2738225 (ED Va. May 26, 2020).  McCoy grants a sentence reduction, without any mention of COVID, to redress an old excessive sentence imposed on a young offender and inflated by stacking mandatory 924(c) counts.  Here is the closing section from McCoy court: "Petitioner was sentenced at just 20 years old to a mandatory 421 month term for crimes that he would face an advisory guidelines range of 205–214 months if sentenced today.... Petitioner's relative youth at the time of the sentence, the overall length of the sentence, the disparity between his sentence and those sentenced for similar crimes after the FIRST STEP Act, and his rehabilitative efforts form an extraordinary and compelling basis for relief.  Accordingly, .... Petitioner's total sentence is reduced to a cumulative term of 205 months."

As I have mentioned before, a lot of late week rulings do not appear on Westlaw right away, so there might still be some additional late May grants that could show up on the service later this week.  Moreover, as I have mentioned in a number of prior posts, I am quite certain that these Westlaw listings do not represent all sentence reductions being granted by federal courts these days.  The data in the Marshall Project article flagged here have led me to believe that Westlaw is picking up only about half or even less of all federal sentence reduction grants.

Prior recent related posts since lockdowns:

May 31, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, May 30, 2020

Weekend round-up of array of prison stories and commentary in incarceration nation

As I continue to follow closely the news and commentary surrounding prison and prisoners during this COVID-19 era, I am reminded again and again how jails and prisons (and all the people therein) are inextricably woven into the broader fabric of all of our communities.  Here is a Saturday round-up of a few recent headlines that in various ways reflect this reality:

May 30, 2020 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

Friday, May 29, 2020

Terrific Prison Policy Initiative coverage of the limits of compassionate release and related pandemic problems

Pyle_compassionate_releasePrison Policy Initiative is a regular must-read for so many reasons in normal circumstance, and PPI has been especially effective with various "briefings" related to prison populations and other matters amidst this pandemic.  I have been remiss by failing to flag all of these on-point postings from the last few weeks

The last of these briefings, which is on the topic of compassionate release and was posted just today, includes a terrific visual from artist Kevin Pyle to help highlight why so very of those who apply for compassionate release get any relief.  Here is part of the text of the posting:

Applying for compassionate release is a lengthy and cumbersome process. Given that those who apply are almost always terminally ill or profoundly incapacitated, the arbitrary nature of this process means many die before their cases are resolved.

The compassionate release process varies tremendously between states (some states even give it a different name, like “medical parole,” “geriatric parole”, etc.), but the basic framework is the same: An incarcerated person is recommended for release on compassionate grounds to prison administrators, who then solicit a medical recommendation, and then administrators or members of the parole board approve or deny compassionate release. Some states allow only family and attorneys to recommend that someone be released on these grounds; others allow incarcerated individuals to apply on their own behalf, or allow prison personnel to do so.

Compassionate release programs are plagued by many shortcomings, including:

  • Requirements that a person be extremely close to death, or so incapacitated that they do not understand why they are being punished.
  • Requiring medical professionals to attest that someone is within six months, or nine months, of death. Health professionals are reluctant to give such exact prognoses, which means prison officials will default to saying “it’s safer just to not let this person go.”
  • Allowing the ultimate decision-makers to overrule recommendations from medical professionals and prison staff (e.g. by refuting or ignoring a medical prognosis).

The compassionate release process is frustratingly obscure not only for applicants, but for reporters, advocates, and others trying to understand the system. In their national survey, FAMM found that only three states are required to publish data on compassionate release grants, and eight other states publish some publicly available data, leaving most Americans in the dark about how often compassionate release is actually used. And despite that fact that FAMM has helpful memos for all fifty states and the District of Columbia detailing eligibility requirements for compassionate release, the application and referral process, the necessary documentation and assessments, and the decision-making criteria, the application process remains an arduous one....

But even when a compassionate release system operates efficiently and fairly, the majority of people in prison are still not eligible for it. As currently constituted, these programs exclude too many people and these systems were never designed for quick responses during a global pandemic. States need to look beyond compassionate release — including expedited parole, and mass commutations — to slow the spread of the pandemic and prevent a needless tragedy behind bars.

May 29, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Thursday, May 28, 2020

Federal inmate population, as reported by BOP, continues steady decline (which continues my wondering about data)

Another Thursday brings another new check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers.  In prior posts here and here, I highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  As we now approach the end of May, the new numbers at this webpage continue to show weekly declines this month checking in around 1,200 on average: the population dropped from 170,435 (as of April 30) to 169,080 (as of May 7, 2020) to 167,803 (as of May 14, 2020) to 166,647 (as of May 21, 2020) to now a BOP reported total of 165,575.

I have repeatedly suggestions that a reduced inflow of federal inmates — due to many sentencings and reportings to prisons being delayed — has likely been playing a big role in the significant reported population declines in recent months.  But, in this recent post noting a BOP press release about coming inmate transfers, I wondered if the historic COVID-era decline in the BOP  numbers has been mostly an artifice of 6,800 federal prisoners not being officially "counted" while being held in local detention facilities during the COVID shutdown.  Because this week we have not yet seen a spike in BOP reported inmates, and in fact declines are continuing at a steady pace, I am left to continue wondering just what the heck is going on and what these number now "really" represent about the federal prison population and COVID's impact. 

A few of many prior related posts:

May 28, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, May 27, 2020

Reviewing a handful of the latest ugly prison pandemic headlines

I have not done a round-up of stories on the spread of COVID-19 through state and federal prison populations lately, in part because this sad tale has already become just standard bad news.  But some recent headlines and stories from this arena seemed especially worth flagging.  So:

May 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

The new death penalty: COVID has now killed more than 500 US prisoners and prison staff according to UCLA Law data

In this post a few weeks ago, I noted what might be called a new kind of death penalty for prison and jail inmates in the United States: by killing many hundreds of incarcerated persons, COVID-19 has turned all sorts of other sentences into functional death sentences.  In that prior posting, I flagged that the UCLA Covid-19 Behind Bars Data Project, as of May 11, had tabulated 341 "Confirmed Deaths (Residents)," and I highlighted that this meant COVID in a few months had produced more prisoner deaths than had been produced by carrying out formal death sentences in the United States for the entire period from 2010 to 2020. 

As I put together my prior post, I was thinking about the inaptness of the COVID/capital punishment comparison because the death penalty is not lethal for prison staff.  But sadly, dozens of prison staff have now also been killed as a result of the toxic combination of the coronavirus and modern mass incarceration.  With these additional victims in mind, especially just after Memorial Day, I thought it important to note that, according to this UCLA Law data spreadsheet, we have now passed a notable grim milestone for combined deaths of prison staff and prisoners.  Specifically, as of May 27, the folks at UCLA are reporting a total of 42 "Confirmed Deaths (Staff)" and 459 "Confirmed Deaths (Residents)."

Of course, 500 is just a round number and every single one of these deaths is individually sad and disconcerting.  I sincerely hope that, somehow, we might be getting past the worst of this pandemic that has (predictably) already been quite lethal for persons in and around prisons and jails.  I also hope I won't have another major lethal milestone to document anytime soon, but it is probably foolish to ever been too hopeful about developments in incarceration nation.

A few prior recent related posts:

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

Tuesday, May 26, 2020

"Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out"

The title of this post is the headline of this significant new ProPublica piece discussing yet another ugly example of how the Department of Justice acts more like a Department of Incarceration.  I recommend the piece in full, and here are excerpts:

Even as the Justice Department announced that federal prisons would release vulnerable, nonviolent inmates to home confinement to avoid the spread of COVID-19, the agency was quietly adopting a policy that makes it harder for inmates to qualify for release, not easier. The result has been that more than 98% of inmates remain in federal custody, while a handful of celebrity inmates, like former Trump campaign chair Paul Manafort, have been released to home detention.

In two memos, one in late March and a second in early April, Attorney General William Barr directed the Federal Bureau of Prisons, which is part of the Justice Department, to begin identifying inmates who could safely be released to home confinement — essentially house arrest. They instructed prison officials to grant “priority treatment” to inmates deemed to present minimal risk to the public.

Separately, however, the Bureau of Prisons had drafted a 20-page policy document this year that altered a standard adopted only a year ago and made it harder for an inmate to qualify as minimum risk.

ProPublica obtained a copy of the document, which does not appear to have been finalized, and its existence surprised and baffled lawyers, prison reform advocates and inmates interviewed for this article....

The Bureau of Prisons’ reliance on the unpublished policy document has exacerbated widespread puzzlement about how the agency is implementing Barr’s home-confinement order. “There’s been nothing but confusion,” David Patton, the chief federal public defender for the New York City area, said. “We’ve received a steady stream of questions from clients about their scores, and we have no answers, because BOP doesn’t give us any.”

Fewer prisoners have been released than was expected when the attorney general made his announcement, lawyers say. About 3,050 inmates have been moved to home confinement as of May 21, Bureau of Prisons records show. That’s around 1.8% of the people under the bureau’s supervision. That figure is significantly smaller than the roughly 20% of inmates who fall into the minimum risk category (though it’s not automatic that all of them would qualify for release) under the 2019 rules.

The slow pace of prisoner releases has begun to attract attention. On May 19, a federal judge accused officials at the Elkton Federal Correctional Institution in Ohio — the site of a deadly coronavirus outbreak cited by Barr in his order — of moving too slowly to release inmates and “thumbing their noses” at Barr’s directive. He instructed them to expand the class of inmates eligible for home confinement by including inmates not only with minimum-risk scores, but also those said to have a low risk. The Justice Department has asked the Supreme Court to halt the order.

At the urging of Sens. Dick Durbin, D-Illinois, and Chuck Grassley, R-Iowa, who co-authored the First Step Act, the Justice Department’s inspector general has agreed to examine the scope of Barr’s directive as well as the Bureau of Prisons’ compliance with it and the agency’s overall response to the pandemic.

May 26, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

SCOTUS, by 6-3 vote, refuses to stay original federal judicial order to transfer vulnerable prisoners "out of Elkton through any means"

As reported here by Amy Howe at SCOTUSblog, this afternoon "the Supreme Court denied a request by the federal government to put a temporary hold on an order by a federal government that could lead to the release or transfer of over 800 inmates from a federal prison where nine inmates have died from COVID-19."  But, as she further explains:

The inmates’ victory, however, appeared to be mostly procedural and likely fleeting: The court explained that the government had not asked them to block the district court’s most recent order, and it indicated that the government could return to the Supreme Court to 'seek a new stay if circumstances warrant'.” Moreover, three justices – Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated that they would have granted the government’s request.

Today’s order came in a case filed last month by inmates at a low-security federal prison in Elkton, Ohio. The inmates argued that they face a disproportionately high risk of contracting COVID-19 because they are in such close proximity to other inmates and correctional staff that social distancing is virtually impossible. In an order issued on April 22, the district court instructed officials at the Bureau of Prisons to evaluate elderly and high-risk prisoners for transfer out of the Elkton facility, either through some form of early release (such as home confinement, compassionate release, parole or community supervision) or by moving them to another facility.

The inmates returned to the district court this month to enforce the April 22 order. They stressed that although the BOP had identified 837 inmates as elderly or high-risk, none of them had been released or moved yet: five were waiting for home confinement, while six others had been designated as potentially qualifying for home confinement. On May 19, finding that the BOP had been “thumbing their nose at their authority to authorize home confinement,” the district court ordered the government to “make full use of the home confinement authority,” and to reconsider inmates’ eligibility without using certain criteria – such as the amount of time remaining on an inmate’s sentence – as a categorical bar. The district court also ordered the government to act quickly on applications for compassionate release, and to explain by May 26 why any prisoners who are not eligible for release could not be transferred to another facility “where social distancing is possible.”

The government came to the Supreme Court last Wednesday, asking the justices to put the district court’s April 22 order on hold while it appeals to the U.S. Court of Appeals for the 6th Circuit and, if needed, the Supreme Court. In a filing by U.S. Solicitor General Noel Francisco, the government argued that allowing an order that would require the release or transfer of over 800 prisoners could both jeopardize public safety and interfere in the management of federal prisons.

In their brief opposing the stay of the district court’s order, the inmates emphasized that as of May 19, there were 135 active COVID-19 cases among the inmates at the Elkton prison, plus eight active cases among staff members. The only way to lower the risk of infection for inmates and staff is to transfer inmates out of the facility, as the attorney general himself has recognized, they argued....

In the one-page order today, the court explained that the government was “seeking a stay only of the District Court’s April 22 preliminary injunction,” even though the district court had “issued a new order enforcing the preliminary injunction and imposing additional measures” on May 19. “Particularly” because the government had neither appealed the May 19 order nor asked the 6th Circuit to put it on hold, the court continued, the Supreme Court would not now block the April 22 injunction, but the government could return to seek a new stay “if circumstances warrant.”

The full SCOTUS order is available at this link.

Prior related posts:

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

Monday, May 25, 2020

Memorializing more drug war casualties: updating the federal drug sentences that COVID-19 turned into death sentences

In this post a few weeks ago, I noted how many individuals among the first federal inmates to die from COVID-19 were in federal prison for drug offenses.  The first documented federal prisoner to die due to the coronavirus was Patrick Jones who died on March 28 and was involved with crack cocaine.  The first female federal prisoner to die was Andrea Circle Bear who died April 28 and was involved with meth.  And the 50th documented federal inmate to die from the virus was Vernon Adderley who died May 11 and was involved in a drug conspiracy.

Because many federal prisoners are serving time for drug offenses, it comes as no surprise that a significant percentage of those who are dying from COVID in federal custody are drug offenders.  But, as I highlighted in my prior post, these kinds of drug war casualties feel especially arbitrary and capricious because such a small percentage of drug offenders are subject to federal prosecution and, thankfully, only a small percentage of this group has been struck down by COVID.  Without diminishing the importance of honoring on this day the those who died serving our nation in traditional wars, I figured today still marked a reasonable time to update my running list of persons who have become casualties of our federal drug war:

Stephen Cino (died April 29: "54 year-old male who was sentenced in the Western District of Virginia to a 292-month sentence for Conspiracy to Distribute Oxycodone Buprenorphine and Fifty Grams or More of Methamphetamine")

Willie Peterson (died April 30: "51 year-old male who was sentenced in the Southern District of West Virginia to a 97-month sentence for Conspiracy to Distribute 100 Grams or More of Heroin and a Quantity of Fentanyl").

Kevin Ivy (died May 2: "59 year-old male who was sentenced in the Eastern District of Texas to a 49-month sentence for Conspiracy to Possess with Intent to Distribute and Distribution of 50 grams or more of Methamphetamine")

Jimmie Lee Houston (dies May 6: "75 year-old male who was sentenced in the District of Alaska to a 120-month sentence for Possessing a Controlled Substance with Intent to Distribute, Possessing a Firearm with Obliterated Serial Number, and Criminal Forfeiture Allegation).

George Escamilla (died May 8: "67 year-old male who was sentenced in the Western District of Texas to a 192-month sentence for Possession with Intent to Distribute 5 kilograms or more of Cocaine and Aiding and Abetting.")

Guadalupe Ramos (died May 10: "56 year-old male who was sentenced in the Western District of Texas to a 210-month sentence for Conspiracy to Distribute 1 Kilogram or More of Heroin")

Juan Mata (died May 11: "59 year-old male sentenced in the Western District of Texas to a 135-month sentence for Conspiracy to Possess With Intent to Distribute 500g or more of Cocaine).

Vernon Adderley (died May 11: "56 year-old male who was sentenced in the Southern District of New York to a 420-month sentence for Narcotics Conspiracy, Conspiracy to Deal in Firearms without a License, and Using and Carrying a Firearm During a Narcotics Crime").

James Lino (died May 13: "65 year-old male who was sentenced in the District of Hawaii to a 34-month sentence for Conspiracy to Distribute and Possess Fifty Grams or More of Methamphetamine with Intent to Distribute").

Calderon Mendoza (died May 14: "60 year-old male sentenced in the Southern District of Florida to a 144-month sentence for Conspiracy to Distribute Cocaine Knowing it Would be Imported into the United States and Distribute Cocaine Using an Airplane Registered in the United States").

Jerry Lynn Dempsey (died May 15: "59 year-old male who was sentenced in the Southern District of California to a 130-month sentence for Conspiracy to Distribute Methamphetamine")

Bich Tran (died May 17: "50 year-old male who was sentenced in the Eastern District of Texas to a 360-month sentence for Conspiracy to Manufacture and Possession with Intent to Distribute Ecstasy, Methamphetamine, Cocaine Base, and Marijuana")

Fidel Torres (died May 20: "62 year-old male sentenced in the Southern District of Texas to a 220-month sentence for Conspiracy to Possess with Intent to Distribute a Quantity in Excess of 1000 kilograms of Marijuana, and Aid and Abet to Possess with Intent to Distribute a Quantity in Excess of 1000 kilograms of Marijuana")

These additional 13 deaths, combined with the 13 deaths noted in this prior post, add up to a full 26 deaths of federal inmates who were incarcerated on drug offenses (from a current total of 59 federal prisoner deaths officially reported by the BOP).  Encouraging, there has not been any reported inmate deaths in the last couple of days, and I hope everyone is eager to see these kinds of drug war casualties go away.  

A few prior related posts:

May 25, 2020 in Prisons and prisoners | Permalink | Comments (1)

Sunday, May 24, 2020

"Carceral Trauma and Disability Law"

The title of this post is the title of this timely new piece by Benjamin Hattem now posted to SSRN. Here is its abstract:

Traumatized people have claimed the benefits of federal disability law with increasing success in recent years.  Trauma undermines mental health and cognitive functioning, and disability laws entitle individuals with such impairments to robust accommodations and government support.

But this application of disability law has so far overlooked a key site of trauma: America’s sprawling carceral system.  Psychology research has shown that certain experiences that are prevalent during periods of confinement — particularly sexual victimization, nonsexual violence, and long-term isolation — routinely traumatize people who are exposed to them.  This Note argues that the prevalence of such traumatic events in carceral spaces may allow many incarcerated and formerly incarcerated people to qualify as individuals with a disability for the purpose of federal disability laws.  Put another way, this Note asserts that mass incarceration leads to mass trauma, and it suggests that recognizing this trauma would open new avenues of litigation to address the social and individual harms of imprisonment.

Drawing on recent precedent that articulates the relationship between childhood trauma and disability law, this Note proposes that advocates should start litigating these claims on behalf of juvenile plaintiffs.  But ultimately, this Note argues that traumatic experiences during both juvenile and adult incarceration can give rise to disability claims.  Millions of people are currently incarcerated in the United States; understanding carceral trauma and its connection to disability law has the potential to affect the conditions of confinement and postrelease outcomes of an extraordinary number of incarcerated and formerly incarcerated people.

May 24, 2020 in Prisons and prisoners | Permalink | Comments (0)