Wednesday, May 20, 2020

Michael Cohen reportedly really getting released to home confinement now

According to this new AP piece, "President Donald Trump’s longtime personal lawyer and fixer Michael Cohen will be released from federal prison Thursday and is expected to serve the remainder of his sentence at home, a person familiar with the matter told The Associated Press."  Here is more:

Cohen has been serving a federal prison sentence at FCI Otisville in New York after pleading guilty to numerous charges, including campaign finance fraud and lying to Congress.

He will be released on furlough with the expectation that he will transition to home confinement to serve the remainder of his sentence at home, the person said.  Cohen, 53, began serving his sentence last May and was scheduled to be released from prison in November 2021....

Attorney General William Barr ordered the Bureau of Prisons in March and April to increase the use of home confinement and expedite the release of eligible high-risk inmates, beginning at three prisons identified as coronavirus hot spots. Otisville is not one of those facilities.

Cohen was told last month he would be released to serve the rest of his three-year sentence at home in response to concerns about coronavirus. He had told associates he was expecting to be released earlier this month.

The Bureau of Prisons has placed him on furlough as it continues to process a move to home confinement, the person familiar with the matter said.  The agency has the authority to release inmates on furlough for up to 30 days and has been doing so to make sure suitable inmates, who are expected to transition to home confinement, can be moved out of correctional facilities sooner, the person said.

Prior Michael Cohen posts:

May 20, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, White-collar sentencing | Permalink | Comments (0)

Federal judge finds BOP has "made poor progress in transferring" vulnerable inmates out of federal prison COVID hotspot

Last month, as detailed here, US District Judge 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.  Federal officials appealed this order, but a Sixth Circuit panel two weeks ago refused to disturb it.  But, as detailed by this new press report concerning this new order from Judge Gwin handed down late yesterday, it appears that BOP is just largely refusing to do what the Judge ordered.  Here are the details from the press report:

A judge said Tuesday that officials have not complied with his directive from last month to clear out the sole federal prison in Ohio to address the spread of coronavirus, which has left nine inmates dead and more than 100 others infected.  U.S. District Judge James Gwin of Cleveland wrote in a new order that the Federal Bureau of Prisons has made “limited efforts” to protect vulnerable inmates at Federal Correctional Center Elkton. He wrote that the bureau must do more to identify, release and transfer the vulnerable inmates.

“Concerningly, Respondents have made poor progress in transferring subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction Order,” Gwin wrote in the 11-page order.

His new order tells the bureau to take more drastic steps, including loosening requirements on who qualifies for placement on home confinement.  If an inmate isn’t eligible for release, officials must explain why in detail, he wrote. Gwin told officials to provide such explanations for at least one-third of the inmates identified at risk every two days until they have accounted for everybody, with the first explanations due to him by the end of business Thursday.

David Carey, an attorney for the American Civil Liberties Union of Ohio, said that “this order represents recognition by the court that the BOP has failed to meet its obligations. We are certainly hopeful they will do so this time around,” he said....

Elkton, located about 100 miles south of Cleveland in Columbiana County, experienced an outbreak of the virus in recent months. The low-security complex is currently home to more than 2,300 male inmates and includes a central institution and a satellite facility. As of Tuesday, 137 inmates and eight staff members tested positive for the virus. Nine inmates have died....

[T]he ACLU said the bureau had slow-walked its response [to Judge Gwin's April 22 order]. It said the bureau has not, to date, identified any inmates who released on furlough or home confinement. It also said the bureau, which identified 837 inmates as susceptible, left some inmates off its list by not including certain medical conditions and those who are age 65.

The judge agreed. “By thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates,” Gwin wrote.

He directed the prisons bureau to eliminate certain criteria that inmates must meet to qualify confinement.  Those include eliminating requirements about length of time an inmate has served and disregarding whether they committed certain low or moderate offenses while in prison.  Per his order, an inmate is serving time for a violent crime might may also be eligible for home confinement if it happened more than five years ago. If an inmate cannot be given compassionate release, furloughed or moved to another facility, the prisons bureau must also explain why.

Prior related posts:

May 20, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Tuesday, May 19, 2020

Great coverage and perspectives on incarceration nation thanks to a global pandemic

Though it is disappointing that it took a global pandemic to get some media folk to take a harder look at mass incarceration and prison practices, I am still inclined to celebrate that the COVID era has brought a lot of important and critical coverage of incarceration nation.  Here is a round-up of just some of the great pieces I have seen in just the last few days:

From CBS News, "Inmates share what life is like inside prison during the coronavirus pandemic"

From CNN,"Inside New York's notorious Rikers Island jails, 'the epicenter of the epicenter' of the coronavirus pandemic"

From The Intercept, "Detainees At A Federal Jail Said Their Coronavirus Symptoms Were Ignored. The Government Is Fighting To Keep The Records Secret."

From Newsweek, "We're Not Angry Paul Manafort Was Released. We're Angry Millions of Others Weren't"

From The New Yorker, "Will the Coronavirus Make Us Rethink Mass Incarceration?"

From Slate, "We Have No Idea How Many People in Prison Actually Have COVID-19"

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

"U.S. Prison Decline: Insufficient to Undo Mass Incarceration"

The title of this post is the title of this notable new short report from The Sentencing Project authored by Nazgol Ghandnoosh. The charts and graphs alone make this piece a must-read, and here is some of its text:

By yearend 2018, the U.S. prison population reached 1.4 million people, declining by 9% since reaching its peak level in 2009.  This follows a nearly 700% growth in the prison population between 1972 and 2009.  This research brief reveals significant variation across states in decarceration and highlights the overall modest pace of reforms relative to the massive imprisonment buildup.

This analysis is based on the most recent data from the Bureau of Justice Statistics on people serving sentences greater than one year.  Since the coronavirus pandemic in 2020, a number of states and the federal system have made additional, albeit modest, reductions in their prison populations. This analysis underscores the need to address excessively high levels of imprisonment amidst a public health crisis.

All but six states have reduced their prison populations since reaching their peak levels.  For twenty-five states, the reduction in imprisonment levels was less than 10%.  The federal prison population was downsized by 17% relative to its peak level in 2011.  Seven states lead the nation, having decarcerated by over 30% since reaching their peak imprisonment levels: New Jersey, Alaska, Connecticut, New York, Alabama, Rhode Island, and Vermont.  These prison population reductions are the result of a mix of changes in policy and practice designed to reduce prison admissions and lengths of stay.  But six states had their highest ever prison populations in 2018: Wyoming, Nebraska, Iowa, Wisconsin, Kansas, and Oregon.

Although 44 states and the federal system have reduced their prison populations since reaching peak levels, the pace of reform has been slow to reverse nearly four decades of aggressive annual imprisonment growth.  At the pace of decarceration since 2009, averaging 1% annually, it will take 65 years — until 2085 — to cut the U.S. prison population in half.  Clearly, waiting over six decades to substantively alter a system that is out of step with the world and is racially biased is unacceptable.

A few recent related posts:

May 19, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Monday, May 18, 2020

Notable up-to-date accounting of federal inmate deaths as reported by BOP

I am grateful to have received an email Lucas Anderson noting this new posting at Law & Policy Journal where he report on all the federal inmate death that the Bureau of Prisons has reported through today.  The post is titled "Data from BOP press releases reveal that federal inmate deaths from COVID-19 may be accelerating; about half of those dead so far were younger than 60."  Here is its text (which accompanies detailed tables based on BOP statements):

The Bureau of Prisons is currently reporting that 57 federal inmates have died from COVID-19. While the BOP provides very little in the way of meaningful data, they have issued brief press releases relating to 55 of those deaths.  The information contained in the tables below is derived from those press releases.  The first table shows that about half of the federal inmates who have succumbed to COVID-19 were younger than 60 years old.  The second table, in which the same data is sorted by month, shows that inmate deaths in federal prisons are not slowing down.  To the contrary, with 21 deaths reported so far in May (as compared to 33 inmate deaths in April), they may be accelerating.

May 18, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

"Special Report: 'Death Sentence' — the hidden coronavirus toll in U.S. jails and prisons"

The title of this report is the headline of this lengthy new Reuters article that I recommend in full.  Here are just a few excerpts:

COVID-19 has spread rapidly behind bars in Detroit and across the nation, according to an analysis of data gathered by Reuters from 20 county jail systems, 10 state prison systems and the U.S. Bureau of Prisons, which runs federal penitentiaries.

But scant testing and inconsistent reporting from state and local authorities have frustrated efforts to track or contain its spread, particularly in local jails.  And figures compiled by the U.S. government appear to undercount the number of infections dramatically in correctional settings, Reuters found.

In a May 6 report, the U.S. Centers for Disease Control and Prevention surveyed 54 state and territorial health departments for data on confirmed COVID-19 infections in all correctional facilities — local jails, state prisons and federal prisons and detention centers.  Thirty-seven of those agencies provided data between April 22-28, reporting just under 5,000 inmate cases.

Reuters documented well over three times the CDC’s tally of COVID-19 infections — about 17,300 — in its far more modest survey of local, state and federal corrections facilities conducted about two weeks later.  The Reuters survey encompassed jails and prisons holding only 13% of the more than 2 million people behind bars nationwide.  Among state prisons doing mass testing of all inmates, Reuters found, some are seeing infection rates up to 65%.

The CDC tally “is dramatically low,” said Aaron Littman, a teaching fellow specializing in prison law and policy at the law school of the University of California, Los Angeles. “We don’t have a particularly good handle” on COVID-19 infections in many correctional and detention facilities, “and in some places we have no handle at all.”...

In many jails and prisons, the toll of COVID-19 on corrections officers and other staff approaches that of inmates — and here, too, the numbers reported to the CDC by state and local authorities appear to be a vast undercount.

The CDC report documented nearly 2,800 COVID-19 cases among staff across all U.S. correctional facilities.  But Reuters found more than 80% of that number — upwards of 2,300 infected jail and prison workers — in its far less comprehensive survey of just the federal prison system, a few dozen state prisons and the 20 counties with the biggest local jails.

May 18, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

Sunday, May 17, 2020

"The Prisoner Trade"

The title of this post is the title of this new article by Emma Kaufman recently posted to SSRN.  Here is its abstract:

It is tempting to assume that the United States has fifty distinct state prison systems.  For a time, that assumption was correct.  In the late twentieth century, however, states began to swap prisoners and to outsource punishment to their neighbors.  Today, prisoners have no right to be incarcerated in the state where they were convicted, and prison officials may trade prisoners — either for money or for other prisoners — across state lines.

Interstate prison transfers raise questions about the scope of states’ authority to punish, the purpose of criminal law, and the possibilities of prison reform.  Yet apart from prisoners and their families, few people know that prisoners can be shipped between states.  Because information on prisoners is so hard to obtain, scholars, lawyers, lawmakers, and even the judges who impose prison sentences often have no idea where prisoners are held.

Drawing on a wide range of primary sources, including data uncovered through open records requests to all fifty states, this Article offers the first comprehensive account of the prisoner trade.  It demonstrates that states have far more authority than one might expect to share and sell prisoners.  It reveals that certain states rely on transfers to offset the actual and political costs of their prosecution policies.  And it critiques the pathologies of interstate punishment, arguing that courts should require consent before a prisoner can be sent outside the polity whose laws he has transgressed.

May 17, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Thursday, May 14, 2020

COVID in prison reaches SCOTUS as it refuses to vacate Fifth Circuit stay ... and Justice Sotomayor has much to say

The Supreme Court this evening denied, via a one-sentence order (available here), a request to vacate a stay that the Fifth Circuit put in place to halt, pending appeal, an injunction requiring a Texas prison take various measure to protect inmates from the dangers of COVID–19.  Though the full court used only one sentence to deny the request to vacate the stay, Justice Sotomayor (joined by Justice Ginsburg) added this statement about that denial that runs seven pages.  Here are a few excerpts from the start and end of her statement:

Under the circumstances of this case, where the inmates filed a lawsuit before filing any grievance with the prison itself, it is hard to conclude that the Fifth Circuit was demonstrably wrong on this preliminary procedural holding.

I write separately to highlight the disturbing allegations presented below.  Further, where plaintiffs demonstrate that a prison grievance system cannot or will not respond to an inmate’s complaint, they could well satisfy an exception to the PLRA’s exhaustion requirement.  Finally, while States and prisons retain discretion in how they respond to health emergencies, federal courts do have an obligation to ensure that prisons are not deliberately indifferent in the face of danger and death....

While I disagree with much of the Fifth Circuit’s analysis at this preliminary juncture, the court required reports every 10 days on the status of the inmates in the prison’s care.  I expect that it and other courts will be vigilant in protecting the constitutional rights of those like applicants.  As the circumstances of this case make clear, the stakes could not be higher.  Just a few nights ago, respondents revealed that “numerous inmates and staff members” at the Pack Unit “are now COVID-19 positive and the vast majority of those tested positive within the past two weeks.” Supp. Brief Regarding Emergency Application 1.

Nothing in this Court’s order, of course, prevents the Fifth Circuit from amending its stay.  Nor does anything in our order prevent applicants from seeking new relief in the District Court, as appropriate, based on changed circumstances.  Finally, administrative convenience must be balanced against the risk of danger presented by emergency situations.  The prison, for example, has failed to explain why it could not simply decrease dorm density, despite having an empty unit at its disposal.

It has long been said that a society’s worth can be judged by taking stock of its prisons.  That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm.  May we hope that our country’s facilities serve as models rather than cautionary tales.

May 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Rounding up another round of recent commentary concerning incarceration amidst our COVID era

Months into this pandemic, I am fearful I am starting to get a bit numb to all the headlines concerning the state of incarceration nation as the coronavirus continues to spread.  Helpfully, lots of smart folks are continuing to comment forcefully and thoughtfully on these developments so I can provide this useful round up:

From Michelle Alexander, "Let Our People Go: A letter from inside Marion Correctional Institution is the voice of those locked in cages and discarded during this pandemic."

Cary Aspinwall, Keri Blakinger & Joseph Neff, "What Women Dying In Prison From COVID-19 Tell Us About Female Incarceration"

Cristine Soto DeBerry, "Jails and Prisons Must Reduce Their Populations Now"

Joseph Krakora, "Prison inmates are dying at an alarming rate. We must do more."

Ashish Prashar, "COVID-19 is forcing the release of some inmates. What will prisons look like after pandemic?"

S.P. Sullivan, Blake Nelson & Joe Atmonavage, "Coronavirus has killed dozens in state prisons. How N.J. failed to stop it."

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

"People in Prison in 2019" ... as well as a partial 2020 update

The title of this post is the title of this great new Vera institute of Justice publication that provides the latest nationwide prison population headcounts.  Here his how the first part of the report gets started:

Effective advocacy and policy making require up-to-date information.  Vera Institute of Justice (Vera) researchers collected data on the number of people who were incarcerated in state and federal prisons as of December 31, 2019, to provide timely information on how prison incarceration is changing in the United States.  This report fills a gap until the Bureau of Justice Statistics (BJS) releases its next annual report — likely in early 2021 — which will include additional data, such as population breakdowns by race and sex.  In response to the novel coronavirus pandemic, Vera collected updated data on people in prison at the end of the first quarter of 2020 to reflect any changes that had occurred as a result of the outbreak.

At the end of 2019, there were an estimated 1,435,500 people in state and federal prisons, down 33,000 from year-end 2018 (2.2 percent decline).  There were 1,260,400 people under state prison jurisdiction, 28,200 fewer than in 2018 (2.2 percent decline); and 175,100 in the federal prison system, 4,800 fewer than in 2018 (2.7 percent decline).

The prison incarceration rate in the United States was 437 people in prison per 100,000 residents, a 2.6 percent drop from 449 per 100,000 in the previous year.  This represents a 17.5 percent decline in the rate of prison incarceration since its peak in 2007.

A decrease in the number of people in federal prisons, along with at least 5 percent declines in incarceration rates in eight states, account for the overall decline in the national prison incarceration rate.  Of those eight states, only three — Missouri, New York, and Oklahoma—have relatively large prison populations.  Prison incarceration continued to rise in some states, such as Nebraska, Idaho, and West Virginia....

Population data collected for March/April 2020 from 44 states and the federal Bureau of Prisons in response to the COVID-19 pandemic showed negligible declines in numbers (a 1.6 percent decrease) during the first three months of 2020.  During the first months of 2020, U.S. prisons emerged as epicenters of the COVID-19 pandemic.  In light of this crisis, advocates and public health officials made repeated calls for elected officials to use clemency and other immediate measures to reduce state and federal prison populations. Vera requested additional data for the end of March or beginning of April 2020 to account for any prison population changes during the first quarter of the year.  Data from 44 states and the BOP show that none had moved with the urgency required to meet the recommendations of public health officials to reduce incarceration.  Across all jurisdictions that reported data to Vera, prison populations had decreased by only 1.6 percent.

Five states — Idaho, Iowa, South Carolina, West Virginia, and Wyoming — had more people in prison on March 31, 2020, than they did on December 31, 2019.  The remaining states showed only small declines.  While Missouri’s prison population declined 14.2 percent in 2019, it had declined only 1.2 percent during the first quarter of 2020. 

The largest percentage reductions were in Vermont (down 11.6 percent), North Dakota (down 9.8 percent), and Oregon (down 8.3 percent).  The largest reductions in the number of people in prison were from large states: Florida (down 2,100 people), California (down 1,700 people), and New York (down 1,500 people).

May 14, 2020 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

As federal prison population continues remarkable decline, can anyone predict what might be a new normal?

Another Thursday brings another new check on the federal Bureau of Prisons' updated general population 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.  We are now two weeks into May, and the new numbers at this webpage continue to show an even bigger weekly decline in total number of federal inmates as calculated by BOP: the population dropped from 170,435 (as of April 30) to 169,080 (as of May 7, 2020) to now now a total of 167,803 (as of May 14, 2020).

As I have detailed before, upticks in the number of persons placed on home confinement reported on the BOP's COVID-19 Update page seemingly account for less than a third of recent reported BOP population decreases.  Thus the data continue to suggest that a reduced inflow of prisoners — due, I presume, to many sentencings and reportings to prisons being delayed — is playing a huge role in the significant population declines in recent months.

As the question in the title of this post is meant to flag, I really have no idea what the new normal for the federal prison population might look like in the wake of the remarkable disruptions caused by the coronoavirus.  Just like the whole nation is likely to be unsure about what kinds of activities are "safe" for quite some time, it may be quite some time before anyone can state with confidence that federal prisons are "safe."  And, of course, with profound disruptions to federal grand juries and so many other aspects of federal criminal justice administration, it seems likewise impossible to predict just when the huge federal criminal justice machinery that typically sends over 5000 people to federal prisons each month will be operating at full capacity again.  And, as discussed in this prior post, perhaps at least some judges may be more reticent to send some people to prison even after federal officials say their facitlies are "safe" again.

So, dear readers, anyone bold enough to predict what the federal prison population might look like in, say, mid May 2021 or 2025 or 2030?

A few of many prior related posts:

May 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Wednesday, May 13, 2020

After serving almost two years, Paul Manafort moved from prison to home confinement to serve remained for his 7.5 year federal sentence due to COVID concerns

As reported in this new ABC News piece, headlined "Former Trump campaign chairman Paul Manafort released to home confinement amid coronavirus concerns," a high-profile, white-collar offender is getting moved from federal prison to home confinement due to coronoavirus concerns.  Here are the essentials (with a few details highlighted):

President Trump’s former campaign chairman Paul Manafort has been released from prison to serve the remainder of his sentence in home confinement because of concerns over the novel coronavirus, two sources familiar with the matter told ABC News.

Manafort was released from FCI Loretto in central Pennsylvania early Wednesday morning, the two sources said. An attorney for Manafort confirmed he had been released to home confinement but declined to comment further. The Bureau of Prisons also did not immediately respond to a request for comment.

Manafort, 71, has been serving out his more than seven-year sentence for charges related to special counsel Robert Mueller’s investigation in a federal correctional institution in central Pennsylvania. He was found guilty of tax fraud and conspiracy and was sentenced by a federal judge in March 2019. He was slated to be released from prison November 4, 2024. The charges stemmed from his work related to Ukraine between 2006 and 2015....

The decision to move Manafort to home confinement comes after his attorneys wrote a letter to the Bureau of Prisons (BOP) last month requesting that he be immediately transferred to home confinement because he is at high risk of contracting COVID-19 because of his age and pre-existing conditions.

While there are no known cases of coronavirus at FCI Loretto, sources have told ABC News that the prison was an old monastery, and due to the open configuration of the prison, would be devastated by the virus.

In December, Manafort was hospitalized for several days due to what sources described as a “cardiac event.” He recovered at a local Pennsylvania hospital under the supervision of correctional officers. His lawyers say his pre-existing conditions include high blood pressure, liver disease, and respiratory ailments and add that Manafort contracted influenza and bronchitis in February 2020. Manafrot takes 11 medications daily, according to his attorneys.

“We write on behalf of our client to request that the Bureau of Prisons (“BOP”) immediately transfer Mr. Manafort to home confinement to serve the remainder of his sentence or, alternatively, for the duration of the on-going COVID-19 pandemic in accordance with Attorney General William Barr’s directives to the BOP on March 26 and April 3, 2020, and the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), enacted on March 27, 2020,” attorneys Kevin Downing and Todd Blanche wrote in an April 13 letter obtained by ABC News....

Last month the Justice Department issued a clarification regarding its policy on releasing certain inmates into home confinement, after a series of conflicting messages sparked confusion and uncertainty among prisoners, attorneys and federal courts. "[Bureau of Prisons] is at this time prioritizing for consideration those inmates who either (1) have served 50% or more of their sentences, or (2) have 18 months or less remaining in their sentences and have served 25% or more of their sentences," federal prosecutors wrote in a court filing in the Southern District of New York last month. "As BOP processes the inmates eligible for home confinement under these criteria and learns more about the COVID-19 pandemic and its effect on BOP facilities, it is assessing whether and how to otherwise priority consideration.”

Manafort has served just under 30% of his prison sentence, however prison officials have wide latitude when considering these releases on a case-by-case basis.

I am quite pleased to see that the federal Bureau of Prisons has had the good sense to place this elderly, ill, nonviolent offender into home confinement; Manafort is exactly the type of person in federal prison who is a high-health risk due to the coronavirus while being a low-public-safety risk when serving his sentence at home.  But I have highlighted some notable feature of this case in the hope that BOP will take the same approach to the many thousands of other elderly and ill nonviolent persons in federal prison, even when a particular prison facility currently has no confirmed COVID cases and even when an individual has served considerably less than 50% of a lengthy prison term.

I know that federal prosecutors have regularly opposed compassionate release motions around the country by making much of the fact that certain prison facilities currently have no confirmed COVID cases and the fact that a particular inmate has not served the majority of an original long sentencing term.  But if those factors did not keep the BOP from moving Paul Manafort from federal prison into home confinement, they ought not to keep federal judges from granting needed sentence reductions to enhance public health and community safety for less prominent persons at real risk of having a federal prison sentence become a death sentence.

Some of many prior related posts:

May 13, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Tuesday, May 12, 2020

Federal judge orders Danbury warden to start "evaluating inmates with COVID-19 risk factors for home confinement and other forms of release"

As reported in this local press piece, a "federal court gave a victory Tuesday night to about 1,000 inmates at the federal prison in Danbury who charged in a class action suit late last month that they are being confined in unconstitutionally dangerous conditions because authorities have failed to release prisoners to home confinement and take other steps to stem the spread of the coronavirus in the institution."  Here is more about this new ruling:

U.S. District Judge Michael Shea issued an order that gives the prison administration just days to identify inmates with health conditions that place them at risk for COVID-19 complications and to begin aggressively evaluating requests by prisoners for transfer to home confinement or compassionate release.

In his 74-page order, Shea refers to the “apparent failure” of the Danbury administration to carry out an April 3 memo by U.S. Attorney General William Barr ordering the administration at Danbury and other prisons to “maximize” emergency authority granted by Congress to release inmates to home confinement....

In their suit, the Danbury inmates — men and woman confined at three facilities within the larger, low-security institution — complained that the local administration was intentionally dragging its feet on compliance with Barr’s memo and Shea endorsed the complaint in his decision.  The inmates argued — and Shea agreed — that prisoner releases or transfers are necessary to decrease congestion and permit adequate social distancing within the institution.

Shea gave the Danbury administration about 13 days to provide him with a list of inmates eligible for transfer to home release and those who are not. In the case of those denied release, Shea ordered the prison to provide explanations.

The full 74-page ruling is available for download below, and here is how it gets started:

On March 27, 2020, Congress gave federal prison officials an extraordinary tool to confront the extraordinary threat posed by the novel coronavirus within prison walls: the authority to transfer any federal inmate from prison to confinement in his or her home.  A week later, the Attorney General of the United States urged the Director of the Bureau of Prisons (“BOP”) to “maximize” the use of that tool as soon as possible, stating in an April 3 memorandum that “[g]iven the speed with which this disease has spread through the general public,” and the Bureau’s “profound obligation to protect the health and safety of all inmates,” “it is clear that time is of the essence.” ECF No. 24-2 at 48-49.  The Attorney General’s memo was triggered by an outbreak of COVID-19, the disease caused by the novel coronavirus, at the Danbury Federal Correctional Institution (“FCI Danbury”), a low security prison in Danbury, Connecticut, and two other federal prisons; the memo directed the BOP to “immediately review all inmates who have COVID-19 risk factors” for potential placement in home confinement, “starting with inmates incarcerated at … FCI Danbury” and the other two facilities. Id. at 49.  This case — brought by four inmates at FCI Danbury — involves an apparent failure of the Warden and staff at FCI Danbury to take these exhortations seriously. The four inmates, all of whom have COVID-19 risk factors, have made a preliminary showing that officials at FCI Danbury are making only limited use of their home confinement authority, as well as other tools at their disposal to protect inmates during the outbreak, and that these failures amount to deliberate indifference to a substantial risk of serious harm to inmates in violation of the Eighth Amendment.  Accordingly, I grant in part the inmates’ motion for a temporary restraining order and issue an order that requires the Warden at FCI Danbury to adopt a process for evaluating inmates with COVID-19 risk factors for home confinement and other forms of release that is both far more accelerated and more clearly focused on the critical issues of inmate and public safety than the current process.  Factual disputes as to other issues the inmates raise preclude me from granting further relief at this time, but I also order an expedited period of discovery and schedule a hearing for June 11, 2020, to adjudicate the inmates’ motion for preliminary injunction.

Download 30 - Order on MTD and TRO

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

Vera Institute of Justice issues new guidance brief urging action to respond to coronavirus in correctional facilties

As detailed in this press release, yesterday "the Vera Institute of Justice issued a guidance brief urging Attorney General Barr, governors, sheriffs, and corrections administrators to take immediate action to stem the explosion of COVID-19 cases in jails, prisons, and detention centers."  Here is more from the press release:

Warned for weeks about the impending crisis, people behind bars are now facing the consequences of slow and inadequate government responses.  Thousands of lives are at risk.

As of Sunday, May 10, 10 of the 15 biggest COVID-19 clusters in the country are jails and prisons, including two prisons in Ohio with a combined total of more than 4,000 people infected.  State facilities in Arkansas, Illinois, Kansas, Michigan, and Texas, as well as a federal prison in California with more than a 70 percent positive test rate, are also included in the top 15.

Vera calls on leaders at all levels of federal, state, and local government to address the looming crisis by:

  • Responsibly and rapidly reducing populations behind bars, beginning with those at the highest risk of illness and death due to COVID-19, including those who are elderly or have serious underlying medical conditions.
  • Testing as widely as possible. If mass testing is unavailable, jails, prisons, and detention centers should implement daily sick calls for all incarcerated people to identify potential infections early.
  • Providing personal protective equipment (PPE) to everyone in facilities and increasing access to showers and laundry daily to prevent infection and spread.
  • Ensuring frequent medical and mental health services in quarantine and medical isolation, including providing ample access to medical staff multiple times a day for routine care, monitoring symptoms, and responding to queries, in addition to addressing emergent issues.

All the recommendations align with public health standards and Vera’s values of ending mass incarceration while ensuring the safety and human dignity of those who live and work in the criminal legal system....

During the first week of May, positive cases in U.S. prisons increased 39 percent over the previous week, for a total of more than 20,000 cases and 325 known deaths of people in jails and prisons.

May 12, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

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

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

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

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

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

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

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

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

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

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

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

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

Monday, May 11, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, May 10, 2020

"Criminal Law in Crisis"

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

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

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

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

Friday, May 08, 2020

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

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

Press Coverage:

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

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

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

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

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

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

Commentary:

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

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

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

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

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

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

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

Thursday, May 07, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Voting in Jails"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, May 06, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, May 05, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Monday, May 04, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, May 03, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts since lockdowns:

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

"Decarceration in the Face of a Pandemic"

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

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

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

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

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

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

Saturday, May 02, 2020

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

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

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

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

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

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

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

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

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

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

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

Friday, May 01, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, April 30, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, April 29, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, April 28, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts since lockdowns:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Establish effective and appropriate supervision conditions....

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

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

• Support community supervision agencies.... 

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

Monday, April 27, 2020

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

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

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

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

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

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

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

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

Prior related post:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, April 26, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, April 25, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Protecting Rural Jails From Coronavirus"

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

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

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

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

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

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

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

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

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

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

Friday, April 24, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few of many prior related posts:

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

Thursday, April 23, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Remarkable times.

A few of many prior related posts:

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

Wednesday, April 22, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, April 21, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, April 20, 2020

Updating "official" COVID data from federal and Ohio prisons

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

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

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

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

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

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