Thursday, April 02, 2020

Prominent federal defendants getting out of prison or delaying entry as a consequence of COVID-19

Here are some notable headlines and basics about some notable federal defendants who have convinced judges, quite sensibly, to allow them to avoid the COVID petri dishes that are federal prisons:

"Tekashi 6ix9ine to be ‘immediately’ released from prison amid coronavirus":

A Manhattan federal court judge has ordered rapper Tekashi 6ix9ine released from federal custody and into home confinement amid the coronavirus outbreak in New York, according to court papers unsealed Thursday.

The order by Judge Paul Engelmayer said the rapper-turned-snitch should be released “immediately” from the private prison in Queens where he is being held in the custody of US Marshals.

The former rapper will serve his first four months in “home incarceration” at an address approved by his probation officer, Engelmayer wrote. He’ll be tracked by GPS. “The defendant must remain at his residence except to seek any necessary medical treatment or to visit his attorney, in each instance with prior notice and approval by the Probation Department,” Engelmayer wrote.

"Former Rep. Chris Collins' prison term delayed due to coronavirus"

A federal judge on Thursday granted former New York Rep. Chris Collins's request to delay the start of his prison sentence for securities fraud by two months after Collins cited concerns about the coronavirus pandemic and its threat to inmates. Collins, a Western New York Republican who had been scheduled to report to prison for a 26-month sentence on April 21, is now set to begin his sentence June 23.

Collins's request came as many inmates and those facing prison sentences have asked to be released from confinement or to delay their sentences out of fear that incarceration creates particularly ripe conditions for the rapid spread of the virus. Those requests have yielded mixed results.

Attorneys for the 69-year-old former congressman, who pleaded guilty in October 2019 to one count of conspiracy to commit securities fraud and one count of making a false statement, had told the court they believe he is in a high-risk category to contract the virus, due to his age and "additional" factors.

Kudos to these judges for making the smart public health decision to keep these folks out of federal prisons for now. I hope a whole lot of less prominent federal defendants get similar treatment in the days and weeks ahead.

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

Death toll from COVID-19 in federal Oakdale facility now already officially up to four ... UPDATE: And a death now in federal prison in Ohio

A little more than a week ago, the federal Bureau of Prisons was touting that there were no federal prisoners or staff who had yet tested positive for the coronavirus.  Now, as detailed in this Reuters article, headlined "Death Toll From COVID-19 at Oakdale Prison in Louisiana Continues to Climb," we already have four confirmed deaths in just one federal facility:

The death toll from COVID-19 at a U.S. prison in Oakdale, Louisiana, has continued climbing, with a fourth inmate now dead, the Bureau of Prisons said on Thursday, as it grappled with outbreaks at other penal institutions....

Federal Correctional Institution 1, a low-security facility holding about 980 inmates that is one of several facilities comprising the prison in Oakdale in south-central Louisiana, is so far the hardest hit in the nationwide system.  Eighteen inmates, as well as 17 staff members now have COVID-19, said Ronald Morris, the president of the American Federation of Government Employees Local 1007 union.  Dozens more are isolation with symptoms, he added.

As of Wednesday, there were 57 federal inmates with COVID-19 across the nation, the Bureau of Prisons said. In addition to Oakdale, other hard-hit prisons include one in Butner, North Carolina with nine inmates sick. A low-security federal prison in Danbury, Connecticut, also has nine inmates sick with COVID-19.

The bureau on Thursday identified the third inmate who died of COVID-19 at Oakdale as James Wilson, 57, who went into respiratory failure on Monday.  He was taken to a hospital and placed on a ventilator the next day, where he died on Wednesday.

The other two inmate COVID-19 fatalities were younger than Wilson. Nicholas Rodriguez, 43, died on Wednesday.  Patrick Jones, the first reported federal inmate to succumb to the COVID-19, died on Saturday at age 49.

The bureau did not yet have any further details on the fourth inmate.

I cannot help but note that it seems, to date, the COVID crisis is hitting low-security prisons particularly hard and that all the reported death involve persons well below the ages thought to be most at risk for dying from this terrible virus.  This suggests that all sorts of low-risk offenders in the federal prison system are now especially vulnerable to being subject to a functional death sentence. 

I will also note that I am starting to receive calls an emails from former prisoners and from family members of current prisoners reporting deep suspicion with how BOP is handling and reporting on all these challenging COVID realities. As is depressingly the case so often in this arena, I an at once unsurprised and deeply saddened by how our nation treats the historic number of persons it decides to cage.

UPDATE: This local article, headlined "First inmate death related to coronavirus at eastern Ohio prison," reports on another federal inmate death from a distinct federal prison:

Inmate Woodrow Taylor reported to the Health Services Department at the Federal Satellite Low Institution (FSL) Elkton, in Lisbon, Ohio.   Mr. Taylor was evaluated by institutional medical staff and transported to a local hospital for further treatment and evaluation due to the inability to maintain a sufficient oxygen saturation and shortness of breath. 

Mr. Taylor’s condition quickly declined and he was placed on a ventilator. On Thursday, April 2, 2020, Mr. Taylor, who had long-term, pre-existing medical conditions, which the CDC lists as risk factors for developing more severe COVID-19 disease, was pronounced dead by hospital staff. While at the local hospital, Mr. Taylor was tested for COVID19; however, test results were still pending at the time of his death. 

Mr. Taylor was a 53 year-old male serving a 60 month sentence for Conspiracy to Possess with Intent to Distribute 500 grams or more of Cocaine. He had been in custody at FSL Elkton since April 29, 2019. 

Meanwhile, the BOP's COVID-19 Update page now reports 75 federal inmates and 39 federal prison staffers have tested positive for COVID-19.  Here is where these latest BOP numbers come from:

(Inmate) 4/02/2020 - USP Atlanta (5); FMC Butner (10); USP Canaan; FCI Danbury (15); FCI Elkton (2); FCC Forrest City (2); FCC Lompoc (12); MCC New York (4); FCC Oakdale (12); FCI Otisville; FCC Yazoo City (4); RRC Brooklyn, NY (4); RRC Janesville, WI; RRC Phoenix, AZ; FLM Guam

(Staff) 4/02/2020 - Atlanta, GA (3); Brooklyn, NY (4); Butner, NC; Chicago, IL (3); Danbury, CT (4); Leavenworth, KS (no inmate contact); Lompoc, CA; Milan, MI; New York, NY (5); Oakdale, LA (4); Otisville, NY; Ray Brook, NY (2); Talladega, AL (2); Tucson, AZ; Yazoo, MS (3); Central Office, Washington, DC; Grand Prairie, TX; Southeast Regional Office, Atlanta, GA

April 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (4)

Wednesday, April 01, 2020

Federal Defenders write to AG Barr to detail concerns with BOP/DOJ response to COVID-19

I just learned of this new letter from Federal Public & Community Defenders to Attorney General William Barr.  I recommend the 11-page letter in full, and here is how it gets started (with footnotes omitted):

On March 19, 2020, we wrote to you to warn that our jails and prisons were in “grave and imminent danger.” We urged you to take “immediate and decisive action” to address the impending spread of COVID-19 among incarcerated persons. That same day, the Bureau of Prisons (BOP) confirmed the first presumed-positive COVID-19 cases in the federal prison system.

Despite our warnings—and those of Congress, policy groups, and public health and legal expert s— the Department of Justice (DOJ) has failed to respond appropriately to this global pandemic.  , DOJ’s response rests on its view that that “many inmates will be safer in BOP facilities.” DOJ has relied on this false premise to oppose release in a wide range of cases, and as the foundation of policies such as your March 26, 2020, “Memorandum for Director of Bureau Prisons.” (“March 26 Policy”).  That policy fails to take advantage of DOJ’s existing tools to transfer vulnerable and low-risk inmates quickly to home confinement. Instead, it erects a complex set of procedural and logistical hurdles to home confinement.  These hurdles are largely arbitrary, bear little nexus to the current public health crisis, and will disparately harm persons of color. This inadequate response to COVID-19 continues to endanger the individuals who live and work in BOP facilities.

You now have the authority, under the CARES Act, to allow BOP to transfer many more people to the relative safety of home confinement.  But you have not made the finding necessary to allow BOP to do so.  Instead, yesterday BOP announced a new plan (“Phase 5”) that amounts to no more than a 14-day lockdown for all federal prisoners.10 It is certain to fail.  The real problem — as public health experts agree — is that there are simply too many people in the prisons.  The only rational, humane response to this crisis is to greatly reduce the prison population. Locking people down in institutions with inadequate medical care and poor sanitation is not the answer.

This past Saturday, March 28, 2020, marked a grim milestone. Patrick Estell Jones, 49, became the first individual in BOP custody to die of COVID-19.  He was serving a sentence in a low-security facility for a non-violent crack cocaine offense.  His death will surely not be the last. The day after Mr. Jones’s death, the Washington Post reported that 30 more inmates and staff at Oakdale had tested positive for COVID-19.  The numbers of positive-COVID-19 cases in BOP are beginning to exponentially escalate: on March 27, 2020, BOP’s website reported a total of 18 COVID-19 positive inmates and staff; today, it reports 59 confirmed cases.  There are increasing reports of positive diagnoses of individuals detained in federal pretrial custody by the United States Marshals Service.

These diagnoses are “almost certainly an undercount.”  Many in the federal prison population are at grave risk of severe illness or death.  There are approximately 10,000 individuals over the age of 60 presently in federal custody, and one third of all individuals in BOP custody have preexisting conditions.  But there are measures that DOJ can take now to avert catastrophe.  We urge you to immediately reduce the number of people entering federal detention and aggressively transfer or release individuals who are already incarcerated into the community.

April 1, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (4)

No joke: BOP on April 1 reporting ever growing number of COVID cases in ever growing number of federal facilities

Just this past Friday (March 27) as detailed in this post, the BOP's COVID-19 Update page was reporting "only" 14 federal inmates and 13 federal prison staffers had tested positive for COVID-19.  Now BOP has updated its cases as of April 1, and it now reports that 57 federal inmates and 37 federal prison staffers have tested positive.  Here is where these latest BOP numbers come from:

(Inmate) 4/1/2020 - MDC Brooklyn; FCC Oakdale (11); USP Atlanta (4); MCC New York (4); FMC Butner (9); FCI Otisville; FCI Danbury (9); FCC Lompoc (6); FCI Elkton (2); USP Canaan, PA; Forrest City, AK (2); Yazoo City, MS; RRC Phoenix, AZ; RRC Brooklyn, NY (4); RRC Janesville, WI.

(Staff) 4/1/2020 - Grand Prairie, TX; Leavenworth, KS (no inmate contact); Yazoo, MS (3); Atlanta, GA (3); Danbury, CT (4); Butner, NC; Ray Brook, NY (2); New York, NY (5); Chicago, IL (2); Brooklyn, NY (4); Oakdale, LA (4); Lompoc, CA; Otisville, NY; Talladega, AL; Tucson, AZ; Milan, MI; Southeast Regional Office Atlanta, GA; Central Office, Washington, DC

By my count, this list shows 15 different federal prison facilities with inmates who have tested positive and 18 different communities with federal prison staff who have tested positive.  And, of course, there is every reason to fear that these numbers represent the tip of worrisomely big iceberg.

A few of many prior related posts:

UPDATE: And now, as reported in this NPR piece, BOP is reporting that there have already been three COVID-related deaths at just the FCC Oakdale facility:

A third person held at the federal prison in Oakdale, La., has died of COVID-19, according to Federal Bureau of Prisons officials. The person's name was not released while authorities notified the person's next of kin.

The second patient to die, Nicholas Rodriquez, 43, became ill on March 25 and had a high temperature and a rapid heartbeat, BOP officials said. He was transported to a local hospital that day, and tested positive for COVID-19. Rodriquez was placed on a ventilator on March 27, after his condition deteriorated. He died on April 1.

BOP officials said Rodriquez had long-term, preexisting medical conditions which the Centers for Disease Control and Prevention lists as risk factors for developing more severe COVID-19 disease. Rodriguez was serving a 188-month sentence on drug charges, and had been at the Oakdale facility for about a year....

The Bureau of Prisons told The Lens that it has stopped testing for the virus at the facility because the outbreak is so widespread. Instead, anyone with symptoms is assumed to have COVID-19. A spokesperson for the bureau told the news outlet that the move is intended "to conserve valuable testing resources," and added that the bureau had no plans to release nationwide testing figures.

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

Federal prisons begin two-week lockdown ... which I hope (but doubt) will help enable mass movement to home confinement

As reported in this Politico piece, "Federal prisons are ordering inmates confined to their cells for the next two weeks in order to fight spread of the coronavirus in the cramped confines of U.S. Government-run penal institutions." Here is more (with links from the original):

The lockdown will begin Thursday and could be extended, the Bureau of Prisons said in a statement late Tuesday.   Some exceptions will be allowed in an effort to maintain normal programs and sanitation, the statement said.  “Limited group gathering will be afforded to the extent practical to facilitate commissary, laundry, showers, telephone, and [computer] access,” the Bureau’s announcement said. “During this time, to the extent practicable, inmates should still have access to programs and services that are offered under normal operating procedures, such as mental health treatment and education.”... 

Criminal justice reform backers, including some lawmakers, have been pressing for immediate release of older inmates and those at particular risk due to pre-existing health conditions.... Attorney General William Barr has ordered a review of the prison population for inmates who could be sent to home confinement without jeopardizing public safety.

While Barr proposed increasing the number of inmates on home confinement, he said last week that many inmates are likely safer in prison than outside.  Any releases under the new policy seem likely to be at least a week away because Barr has said he wants such prisoners to be quarantined before being sent home.  "We also have to provide that anyone who is released to home confinement is quarantined before they go out, for 14 days to ensure that we're not putting people out in the community who have it,” he said....

One of the massive virus-response bills passed by Congress last week gives the Justice Department more authority to release federal prisoners early if Barr declares that an emergency is interfering with prison operation.  The Justice Department has not responded to questions about whether Barr has yet issued such a declaration.

One criminal justice reform advocate expressed disappointment in the lockdown, saying it is likely to aggravate problems related to the virus, not ameliorate them.  “How incredibly short-sighted, contrary to the advice of any experts, and inhumane,” Chris Geidner of the Justice Collaborative wrote on Twitter. “Keeping people in their cells for 14 days straight is NOT the same thing those of us elsewhere are going through.  Most of us have a supply of soap and hygienic bathrooms in separate rooms from where we eat, for starters.”

In recent days, judges have ordered the release of some immigration detainees at greatest risk for serious illness from the virus. There have also been releases of pretrial detainees and convicts at the state and local level, but few from federal prisons.

On Tuesday, U.S. District Court Judge Jesse Furman in Manhattan turned down such a bid from a former medical doctor he sentenced to three years in prison roughly three weeks ago.  Lawyers for Nkanga Nkanga, 67, who pleaded guilty to issuing unwarranted opioid prescriptions, said he’s in grave danger at a Brooklyn prison due to his age and declining health, including asthma and complications from a stroke a decade ago.

In an impassioned opinion, Furman wrote that if he’d realized the gravity of the pandemic several weeks ago, he would have postponed sentencing Nkanga or ordered some relief to keep him out of prison until the danger abates. But the judge concluded he lacks any authority to release a prisoner already serving his sentence.  “Dr. Nkanga’s case is a vivid illustration of why the dangers posed by Covid-19 to the imprisoned population cry out for action by Congress and the Executive Branch,” wrote Furman, an appointee of President Barack Obama. “Although the rational and right result is for Dr. Nkanga to be temporarily released from custody until circumstances improve, the Court is powerless at this point to bring about that result.”

Nkanga’s lawyers returned to the court early Wednesday with an argument that Furman has the power to release their client in response to a habeas corpus petition challenging his conditions of confinement.  Furman has yet to respond to that last-ditch plea, but in his earlier ruling he said officials outside the judiciary are the only ones who have the power and agility to safeguard prisoners at the most serious risk from the virus.  “Only the political branches can do what this moment requires,” the judge wrote. “The question is whether they will do so — and, if they do, whether their actions will be too late for Dr. Nkanga and other inmates like him.”

Chris Geidner is entirely right that this system-wide lockdown in uniquely burdensome for federal prisoners.  But, hoping to (foolishly?) imagine that BOP lemons could be turned into lemonade, I want to now believe that the urgency of the COVID-19 crisis is finally dawning on Justice Department officials and that BOP will be using the two-week lockdown period to identify as many prisoners as possible who can be moved out of prison and into home confinement ASAP.  I am not really expecting to see a mass movement of federal prisoners to home confinement come April 15, but I think this lockdown at least provides a target date for advocates to demand that BOP move forward with the kinds of mass decarceration efforts that all public health experts are saying is now essential. 

A few of many prior related with a focus on federal facilities posts:

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

Tuesday, March 31, 2020

California working toward accelerating release dates for 3,500 inmates who were to to be released in next two months

This local piece from California report that, "California is granting early release to 3,500 inmates in an effort to reduce crowding as coronavirus infections begin spreading through the state prison system." Here is more:

Lawyers for Gov. Gavin Newsom on Tuesday told a panel of federal judges the state is taking “extraordinary and unprecedented protective measures” to slow the spread of the virus and protect those who live and work within California’s 35 prisons.  The accelerated parole policy — affecting inmates due to be released over the next 60 days — comes in the face of pressure to do much more.

Lawyers representing inmates in long-standing civil rights litigation against the prison system have asked those judges for broader prison releases, as well as protective measures to reduce the threat to older or medically vulnerable inmates not likely to be considered for release.  A court hearing on the emergency motion is set for Thursday.

In court filings, state lawyers said California intends to accelerate parole dates for 3,500 inmates serving terms for nonviolent crimes and already due to be released within 60 days. The releases are to be conducted “within the next several weeks.”

March 31, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Another day, another round of discouraging COVID news from jails and prisons around the US

In recent posts here and here, I have rounded up just some of the many headlines and news stories that detail how coronavirus cases among inmates and staff are impacting jails and prisons nationwide.  As we close out March, another round-up of these stories proves even more discouraging with news of ever-growing numbers of cases in ever-growing numbers of facilities.  Here is just a sampling of headlines as of mid-afternoon Monday March 31:

California: "Four inmates, 18 workers in California prisons have tested positive for coronavirus"

Connecticut: "Connecticut prisoner tests positive for COVID-19 virus"

Georgia: "Coronavirus is spreading in Georgia prisons"

Illinois: "1st Illinois prison inmate dies of COVID-19, health officials say"

Maryland: "Maryland prison system confirms first coronavirus cases"

Massachusetts: "17 inmates, 4 staff test positive for coronavirus at Bridgewater prison"

Michigan: "How Michigan's prison system is addressing a rising COVID-19 case count: As of Monday morning, 80 inmates and 14 Michigan Department of Corrections employees have the virus."

Minnesota: "First COVID-19 case found in Minnesota prison system"

New York: "Rikers doc: DAs fail to recognize ‘public health disaster’ of coronavirus"

Ohio: "First Positive COVID-19 Test at an Ohio Prison is Worse Than it Seems"

Texas: "Bowie County Judge confirms 2 jail employees test positive for COVID-19"

Wisconsin: "More deputies working in Dane County Jail test positive for coronavirus"

March 31, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Monday, March 30, 2020

House Judiciary Chair Nadler and Subcommittee Chair Bass send letter to Attorney General Barr urging him to protect the most vulnerable federal prisoners and staff from COVID

As detailed in this press release, "House Judiciary Committee Chairman Jerrold Nadler (D-NY) and Subcommittee on Crime Chairwoman Karen Bass (D-CA) sent a letter to U.S. Attorney General William Barr urging him to use the authority granted under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to protect the most vulnerable prisoners and those working in federal prisons from coronavirus (or COVID-19)." The full letter, which runs seven pages, is available at this link and merits a full read. Here are excerpts:

On the evening of March 28, 2020, we sadly learned of the first death of a prisoner in the custody of the federal Bureau of Prisons (BOP) due to COVID-19. The decedent was a 49-year-old African-American man who, according to the BOP’s press release announcing his death, had “long-term, pre-existing medical conditions which the CDC (Centers for Disease Control and Prevention) lists as risk factors for developing more severe COVID-19 disease.”  He was housed in a low-security facility in Oakdale, Louisiana. Reports now indicate that one guard at the same facility is in intensive care due to COVID-19 and there have been positive test results for another 30 prisoners and staff.  This death and the explosion of cases in the Oakdale prison underscore the urgency of taking action to prevent more avoidable deaths of individuals in federal custody.

The Department of Justice (DOJ) and BOP presently have the authority to request, under 18 U.S.C. § 3582(c)(1)(A)(i), that courts modify the sentences of prisoners who present “extraordinary and compelling reasons.”  We call on you, in the most urgent of terms, to do the right thing and exercise this authority and immediately move to release medically-compromised, elderly, and pregnant prisoners in the custody of the BOP.

In addition, we urge that you use every tool at your disposal to release as many prisoners as possible, to protect them from COVID-19.  Along those lines, and as you move forward with planning for and executing the release of what we hope will be an appropriately sizable number of BOP prisoners, we urge you to consider the issues raised below.

On March 27, 2020, the House passed, and President Trump signed into law, the Coronavirus Aid, Relief, and Economic Security Act,” or the “CARES Act.”[6] Among other things, the CARES Act broadens the authority of the Attorney General and the Director of the BOP, during the COVID-19 crisis, to release prisoners to home confinement.[7] We ask that both you and the Director of the BOP interpret and exercise this new authority as broadly as possible, given that thousands of lives are at stake....

Although we were encouraged to see that you have already issued a directive to the Director of the BOP prioritizing home confinement as appropriate in response to the COVID-19 pandemic, your memorandum raises a number of concerns....

We also ask that you collect and maintain comprehensive data about the release of inmates into home confinement in response to the COVID-19 pandemic for the purpose of reporting the information to Congress.  Specifically, we ask that you gather data pertaining to every inmate in BOP and whether they were considered for release and if not, why not.  With regards to those who were considered for release, but were ultimately not released, please provide an explanation for why they were not released.  Please ensure that this data is collected and organized in a way that it can be searched in relation to demographic factors, such as age, race and ethnicity, and gender.

Finally, it goes without saying that we are deeply concerned about what is going on in BOP facilities around the country during this pandemic, especially now that a federal prisoner has died from COVID-19 and reports of increasing numbers of infected prisoners and correctional officers.  In the coming weeks, we hope you will institute aggressive measures to release medically-compromised, elderly and pregnant prisoners, as well as universal testing in BOP facilities -- to protect everyone.   As we have told you before, we are ready to work with you to address the needs of prisoners during this difficult time.  We appreciated your response to our earlier letters on the topic of COVID-19.  We look forward to receiving your response to this letter in the same prompt manner.  Urgent action is required because lives depend on it.

March 30, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Ugly details on COVID realities in federal prison in Louisiana as Bureau of Prisons slowly updates system-wide spread

The Washington Post has this troubling report, headlined "An explosion of coronavirus cases cripples a federal prison in Louisiana," about what is going on the federal prison where the first federal inmate died from contracting the coronavirus.  Here are excerpts:

A federal prison in Louisiana has, within days, exploded with coronavirus cases, leading to the death of one inmate on Saturday, the admission of a guard into a hospital intensive care unit, and positive test results for another 30 inmates and staff.  Patrick Jones, 49, was the first inmate in the Federal Bureau of Prisons diagnosed with the novel coronavirus, which causes covid-19, and the first to die.

At least 60 inmates at the Oakdale prison are in quarantine and an unknown number of staff are self-quarantining at home, said Corey Trammel, a union representative for correctional officers at the 1,700-inmate facility about 110 miles northwest of Baton Rouge. “It’s been simultaneous, just people getting sick back to back to back to back,” Trammel said. “We don’t know how to protect ourselves. Staff are working 36-hour shifts — there’s no way we can keep going on like this.”

The prison bureau is not releasing the names of other infected inmates or staff, citing medical and privacy concerns. Jones complained of a “persistent cough” on March 19, the prison bureau said, and was transported to a hospital where he was diagnosed and placed on a ventilator. The prison bureau also said Jones had “long-term, preexisting medical conditions” that increased his risk of developing the disease. Jones was convicted in 2017 of possession with intent to distribute crack cocaine within 1,000 feet of a junior college. He was serving a 27-year sentence....

Trammel said the prison bureau has been slow to respond to the crisis across the country. The bureau last week banned family and friends from visiting inmates, but the officers’ union had lobbied the federal prison system to take this action for weeks to keep the disease from infiltrating the prison walls.

The Bureau of Prisons updates confirmed coronavirus cases most afternoons on its website, but there has been a lag between cases reported by the officers’ union and prison officials. As of Sunday afternoon, the prison system had only confirmed 14 inmates and 13 staff have tested positive.

At Oakdale, Trammel said staff also asked prison officials — weeks before the first coronavirus case — to shut down a prison labor program within the facility, where more than 100 prisoners make inmate clothing. The program, Trammel said, was not shut down until after the first inmate tested positive. The Bureau of Prisons — which operates 122 prisons with more than 175,000 inmates — did not immediately respond Sunday to a request for comment. Oakdale Warden Rod Myers could also not be reached for comment.

Trammel said he asked the prison bureau on Saturday to send specialized medical teams to the facility to help with staffing shortages. He’s also asking for hazard pay, which would increase their salaries by 25 percent as they respond to the crisis. And he’s asking for more robust protective gear, including masks with respirators and perhaps face shields. “We are bringing inmates to the hospitals and are staying right beside them around the clock,” Trammel said. “All we have is these itty bitty masks — a piece of towel over our faces — and nurses are coming into the room for a few minutes and they are all suited up.”

He also said he believes all Oakdale prison staff have now been exposed to the virus. Days ago, he interacted with an inmate who had a fever and still doesn’t know if the prisoner has received a test. “We should all be in quarantine,” Trammel said. “We should not be going in to spread this monster of a virus.”

Interestingly, BOP on this COVID-19 Update page says it is updating its "dashboard daily at 3:00 p.m." BOP did not seem to do daily updates over the weekend (if only COVID took weekends off).  But, perhaps prodded by this Washington Post piece, it seems BOP did do an update this morning as it now reports that 19 federal inmates and 19 federal prison staffers have tested positive for COVID-19.  Here is where those numbers come from:

(Inmate) 3/29/2020 - MDC Brooklyn; FCC Oakdale (5); USP Atlanta (2); MCC New York (3); FMC Butner; FCI Otisville; RRC Phoenix, AZ; RRC Brooklyn, NY (4); RRC Janesville, WI.

(Staff) 3/29/2020 - Grand Prairie, TX; Leavenworth, KS (no inmate contact); Yazoo, MS (2); Atlanta, GA; Danbury, CT; Butner, NC; Ray Brook, NY; New York, NY (2); Chicago, IL (2); Brooklyn, NY (3); Oakdale, LA (3); Lompoc, CA.

Disconcertingly, the Washington Post piece reports "positive test results for another 30 inmates and staff" from Oakdale, LA, whereas the updated BOP page appears to be reporting only eight positives (five inmates, three staff) in that facility.  I sure would like to be able to trust, and I sure would like for federal prosecutors and judges and defendants to be able to trust, the data coming from the BOP.  But for now I am more inclined to trust my pessimistic instinct that every federal facility has coronavirus problems and these problems seem all but certain to get worse in the days and weeks ahead.

A few of many prior related with a focus on federal facilities posts:

UPDATE: This new New York Times piece addresses these topics more generally under the headline "As Coronavirus Spreads Behind Bars, Should Inmates Get Out? Some jails are releasing people as the virus gains a foothold inside, but critics say it is not happening quickly enough to save lives and resources."

 

ANOTHER UPDATE: BOP on this COVID-19 Update page did its afternoon update on Monday, and now reports that 28 federal inmates and 24 federal prison staffers have tested positive for COVID-19.  Here is where those numbers come from:

(Inmate) 3/30/2020 - MDC Brooklyn; FCC Oakdale (7); USP Atlanta (2); MCC New York (3); FMC Butner (2); FCI Otisville; FCI Danbury; FCC Lompoc (3); FCI Elkton (2); RRC Phoenix, AZ, RRC Brooklyn, NY (4); RRC Janesville, WI

(Staff) 3/30/2020 - Grand Prairie, TX; Leavenworth, KS (no inmate contact); Yazoo, MS (2); Atlanta, GA (2); Danbury, CT; Butner, NC; Ray Brook, NY; New York, NY (2); Chicago, IL (2); Brooklyn, NY (4); Oakdale, LA (3); Lompoc, CA; Otisville, NY; Fort Dix, NJ; Talladega AL.

As suggested before, I remain confident that these data serve as an undercount of federal facilities and people impacted by COVID-19.

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

Sunday, March 29, 2020

Dispiriting review of more COVID news from jails and prisons around the US

In this recent post, I noted many headlines and news stories that detailed how coronavirus cases among inmates and staff were impacting jails and prisons nationwide. Four days later, another round-up of these stories proves even more dispiriting with news of COVID deaths and ever-growing numbers of cases.  Here is just a sampling of headlines from some of our largest criminal justice systems as of mid-afternoon Sunday March 29:

National: "Spread of coronavirus accelerates in U.S. jails and prisons"

Federal: "Coronavirus claims first federal prisoner; 49-year-old drug offender dies in Louisiana"

Florida: "Seven Florida Department of Corrections employees test positive for COVID-19"

Georgia: "Lee State Prison inmate dies, 4 staff members test positive for COVID-19"

Illinois: "Coronavirus In Chicago: 89 Inmates, 12 Staff At Cook County Jail Test Positive For COVID-19"

Michigan: "Coronavirus cases surge in Michigan’s crowded prisons"

New York: "Coronavirus claims life of NYC correction officer, union says"

Texas: "3 COVID-19 Cases Confirmed in Texas State Prisons; 42 Employees Isolating at Home"

Sadly, but unsurprisingly, Rikers Island is its own COVID-replicating land: According to this recent press piece, "as of Sunday, 114 DOC corrections officers and 139 inmates have tested positive for COVID-19."

March 29, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Saturday, March 28, 2020

"Five ways the criminal justice system could slow the pandemic"

The title of this post is the title of this great new report from the Prison Policy Initiative.  Here is how the report gets started and its listed "five ways":

The United States incarcerates a greater share of its population than any other nation in the world, so it is urgent that policymakers take the public health case for criminal justice reform seriously and make necessary changes to protect people in prisons, in jails, on probation, and on parole.

Below, we offer five far-reaching interventions that policymakers can use to slow the spread of the virus in the criminal justice system and broader society. We previously published a list of common sense reforms that could slow the spread of the virus in jails and prisons.  In light of the rapid spread of COVID-19 throughout the U.S., and specifically in prisons and jails, we found it necessary to update these recommendations with more detail about who has the power and responsibility to enact policy change, and how to reform the criminal justice system in the midst of a public health crisis.

Quick action is necessary for three reasons: Correctional staff and incarcerated populations are already testing positive, the justice-involved population disproportionately has health conditions that make them more vulnerable, and the staffing resources required to make policy changes will be depleted long before the pandemic peaks.

The incarcerated and justice-involved populations contain hundreds of thousands of people who may be particularly vulnerable to COVID-19, including those with lung disease, asthma, serious heart conditions, diabetes, renal or liver disease, and with other immunocompromising conditions. Protecting vulnerable people will not only improve outcomes for them, but will also reduce the burden on the healthcare system, protect essential correctional staff from illness, and slow the spread of the virus....

The final reason to move quickly is that, even under normal circumstances, establishing and implementing new policies and practices is something that the government finds challenging to do on top of its other duties.  Now that the number of COVID-19 cases is higher in the U.S. than any other country, we know that more people will continue to be directly impacted by illness, including policymakers and government leaders.  With the possibility of up to 40% of government lawyers and other policymakers getting sick or taking care of sick relatives, making policy change is going to be much harder and take far longer.  If the government wants to protect both justice-involved people and their already overstretched justice system staff from getting the virus and spreading it further, they need to act now.

Here are five places to focus:

1. Reduce the number of people in local jails....

2. Reduce the number of people in state and federal prisons....

3. Eliminate unnecessary face-to-face contact for justice-involved people....

4. Make correctional healthcare humane (and efficient) in a way that protects both health and human dignity....

5. Don’t make this time more stressful for families (or more profitable for prison telephone providers) than absolutely necessary....

March 28, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Just a few governors starting to (barely) address looming prison and jail COVID crisis

I am pleased to see more and more advocates and groups in more and more states making more and more urgent pleas to governors and other public officials to address the looming public health problems posed by modern mass incarceration.  For example, here are reports of recent decarceration pitches in Alabama, Connecticut, Nevada, Oklahoma, Tennessee, Texas.  In this vein, I am hopeful that Ohio Governor Mike DeWine, who has been an effective and inspiring leader during these trying times, might soon respond to this thoughtful plea from a coalition of Ohio public policy groups to take aggressive steps to reduce prison and jail populations in the Buckeye State to advance our public health interests.

With this new report from Georgia of a 49-year-old inmate dying from the coronavirus and many other state prisoners and staffers testing positive, it seems to be only a matter of time before every state chief executive comes to understand the lurking public health problems posed by the combination of mass incarceration and COVID-19.  Late yesterday, I am glad to report, a couple of governors acted (in relatively small ways) to address these issues:

California: "Gavin Newsom commutes prison sentences for 21 California inmates, pardons 5 more"

New York: "Cuomo orders 1,100 parole violators released from jails over coronavirus concerns"

Though we should always welcome and praise governors who do something rather than nothing on these issues, we are going to need a lot more something from a lot more governors to head off a lot more public health problems.

A few of many prior related posts:

March 28, 2020 in Clemency and Pardons, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Friday, March 27, 2020

Hundreds of former DOJ officials and federal judges urge Prez Trump to commute sentences and create emergency advisory group to respond to COVID-19 challenges

The folks at Fair and Just Prosecution has this new press release discussing a notable new plea for more action from Prez Trump to address COVID-19 challenges in our nation's criminal justice system.  From the start of the press release (with bold in the original):

Today 405 former DOJ leaders, attorneys, and federal judges — including 35 former United States Attorneys who served under both Republican and Democratic Administrations —issued an open letter to President Donald Trump asking him to take immediate action to reduce the population in federal detention and correctional centers to prevent the catastrophic outbreak of COVID-19 in these facilities.  In the letter, they urge the President to support efforts to mitigate the spread of COVID-19 among those held in federal custody — as well as the many individuals who work in these facilities and return to their community at the end of each shift — by:

  • Using his executive power to sensibly commute sentences for the elderly, those who are medically vulnerable and individuals who have already served most of their sentence, provided that they do not pose a serious risk to public safety;
  • Encouraging and establishing policies to promote the limitation of new custody to only individuals who present a serious and demonstrable risk to public safety;
  • Creating a bipartisan emergency advisory group to quickly guide this process and ensure the most vulnerable are protected;
  • Urging the Bureau of Prisons to take measures to ensure correctional staff receive regular testing as well as health care support, including full pay if they become sick with the virus; and
  • Supporting emergency funding for prevention, treatment, reentry support, and incentivizing state and local governments to address the public health concerns in their own jails and prisons.

I like all these recommendations, and I especially see value in creating some kind of special working group to focus on a range of federal and national criminal justice administration issue.

UPDATE: I have also now seen this additional letter that dozens of leading public health experts has sent to President Trump.  Here is this letter's chief clemency recommendations (with bold in the original):

First, we ask that you commute sentences for all elderly people.  While the SARS-CoV-2 virus infects people of all ages, the World Health Organization (WHO) is clear that older people are at a higher risk of getting severe COVID-19 disease and dying.  In fact, the risk of severe disease gradually increases with age starting from around 40 years.  Also, older people who are released from prison pose little risk to public safety.

Second, we are also asking that you commute sentences for the medically vulnerable population including persons suffering from cardiovascular disease, diabetes, chronic respiratory disease, or cancer.  In addition to older people, WHO has identified persons with these underlying medical conditions to be at greater risk for contracting severe COVID-19.  While there is little known yet about the effects of COVID-19 on pregnant women, the CDC explains that with viruses from the same family as COVID-19, and other viral respiratory infections such as influenza, pregnant women have had a higher risk of developing severe illness.

Third, we are asking that you commute sentences for all persons who have one year or less remaining on their sentence.  This measure will limit overcrowding that can lead to further spread of COVID-19 and free up beds that will be needed to care for the sick who should be housed separate from others.

March 27, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Federal inmates and staff all around the nation now testing positive for coronavirus

In this post yesterday, I noted a press piece which reported that Attorney General William Barr had said that a "total of six inmates and four prison staffers have tested positive for COVID-19."  Because my post was done after 3pm yesterday, I was able to then report that, as of March 26, the BOP was reporting 10 federal inmates and 8 federal prison staffers had tested positive for COVID-19.  It is now after 3pm on March 27, and the BOP's COVID-19 Update page is now reporting that 14 federal inmates and 13 federal prison staffers have tested positive for COVID-19.  Here is where those numbers come from:

(Inmate) 3/27/2020 - MDC Brooklyn; FCC Oakdale (5); USP Atlanta (2); MCC New York (2); RRC Phoenix; RRC Brooklyn (3). (Note: Symptomatic inmates are isolated in accordance with CDC guidelines.)

(Staff) 3/27/2020 - Grand Prairie, TX; Leavenworth, KS (no inmate contact); Yazoo, MS (2); Atlanta, GA; Danbury, CT; Butner, NC; Ray Brook, NY; New York, NY (2); Chicago, IL (2); Brooklyn, NY.

In addition to wishing all these individuals well, I am also wishing that everyone expects and acts as if these numbers are likely to grow exponentially in the days and weeks to come. Public official have the power, and now that power must be used, to avoid turning far too many prisons sentences into essentially death sentences.

A few of many prior related posts:

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

"Four Things Every Prison System Must Do Today"

The title of this post is the headline of this lengthy new Slate piece authored by Margo Schlanger and Sonja Starr. I highly recommend this piece in full and here are excerpts:

As COVID-19 spreads rapidly throughout the United States, it has begun to enter our prisons and jails, which confine more than 2 million people. We are on the verge of catastrophe — for incarcerated persons, staff, and their families, obviously, but also for the general public. Some officials have been sounding the alarm, and we’re beginning to see some action — but not nearly enough, and not fast enough....

Per capita, the incarcerated population in the United States is several times larger than that of nearly every other country in the world. That renders us uniquely vulnerable to this disease vector.  It is nearly inevitable that this virus will hit our prisons and jails hard and soon.  Indeed, it’s surely already in more of them than we know.  The only question is how bad the damage will be.  We can mitigate it only with swift and aggressive action.

The only way to really limit this catastrophe is by quickly reducing the number of people incarcerated. If we can get everyone out who doesn’t have to be there, it will also produce some critical space that institutions will need to enable social distancing and to isolate the sick, and might even make it possible to operate with reduced staff.  And although some are already infected, there will be a smaller number if we act today than there will be if we act tomorrow, or next month. Moreover, we can minimize the risk those already infected pose to the community by ordering that those released stay at home for two weeks or more.

Governors of many states have the authority, under emergency powers and/or their ordinary clemency powers, to order quite sweeping steps. Courts can implement others  (here’s a catalog of state Supreme Court orders so far, and also of litigation seeking emergency prisoner releases), and local prosecutors can be crucial actors as well.  There are several key steps that states (and the federal system) should take:

1. Delay new sentences, except as absolutely necessary. Sentence start dates, sentencing hearings, plea hearings, and trial dates can be deferred until after the emergency....

2. Sharply limit pretrial detention....

3. Commute all sentences due to end within a year....

4. Release older and chronically ill individuals....

Some of the steps proposed here might seem radical in ordinary times. But these are extraordinary times. Throughout the country, governors and other public officials are taking sweeping, dramatic actions to protect the public from COVID-19. Ordinary Americans are upending our lives in ways we could not have imagined just a week or two ago. If we don’t think at the same scale about the brewing crisis in prisons and jails, we will all suffer the consequences.

March 27, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Guest post/question: "Will home confinement become a more (or less) attractive alternative to incarceration?"

6a00d83451574769e201b7c9134b4d970b-320wiA thoughtful and insightful colleague wrote to me this morning to pose the question in the title of this post.  I asked for a fuller write up of the query for posting, and here it is:

Section 5F1.2 of the federal sentencing guidelines defines “home detention” this way —

"Home detention” means a program of confinement and supervision that restricts the defendant to his place of residence continuously, except for authorized absences, enforced by appropriate means of surveillance by the probation office.  When an order of home detention is imposed, the defendant is required to be in his place of residence at all times except for approved absences for gainful employment, community service, religious services, medical care, educational or training programs, and such other times as may be specifically authorized.  Electronic monitoring is an appropriate means of surveillance for home detention. However, alternative means of surveillance may be used if appropriate.

For most of us, the last two weeks have genuinely been a period of home detention.  For me, I’ve been supervised in my confinement not by a probation officer, but my wife and daughters, who, should I venture out too far or too long, are quick to send me an electronic message to return home.  [I think this meets the term “alternative means of surveillance” as used in 5F1.2.]  And of course, I am not approved for absences for gainful employment (telework), religious services (cancelled), or educational or training programs (Zoom).

Later today, the House of Representatives will pass legislation that will expand the use of home confinement for federal prisoners to address the current COVID crisis, and Attorney General Barr has already issued a directive to the Bureau of Prisons to expand its use (see earlier posts here and here).  Many of us for years have advocated for the expanded use of home confinement and electronic monitoring as alternatives to imprisonment and to reduce the nation’s reliance on imprisonment for punishing convicted offenders.  I’m not sure, though, now that we all have experienced home confinement, whether it will be a more — or less— attractive alternative to incarceration.

Doug — What do you think?   

Readers — What do you think?

My first-cut answer to this great question is an answer I have been trotting out a lot these days: "Who the heck knows, but I am eager to find out."

I am certain many people are not enjoying their personal "home confinement," and will be finding it more and more burdensome in the weeks to come.  But I also know that personal "home confinement" still likely would be, and surely should be, seen as much less burdensome than actually being incarcerated. (A recent Marshall Project speaks to this reality: "No, Your Coronavirus Quarantine Is Not Just Like Being in Prison.")   I fear that many persons may be inclined to say, after the pandemic resolves, some version of "Criminals should always face a harder experience than I did during COVID."

That all said, so much of the reality of criminal justice administration can be shaped by economics, especially at the state level where incarceration costs take up a much larger percentage of overall state budgets.  Home confinement surely will always be much cheaper than imprisonment, and finding cheaper punishments may become extremely important (for states in particular) if we are facing a long recession that makes limited state resources even more scarce. 

Last but certainly not least, if some states moved a significant number of current prisoners into home confinement while others do not, we will be starting an interesting and important "natural experiment" on the efficacy of home confinement relative to imprisonment.  Though this "natural experiment" will not be able to give us conclusive data on whether home confinement serves public safety as well as imprisonment, advocacy for decarceration are likely to highlight this experience if we do not see a huge spike in crime in those states that have decarcerated more.

March 27, 2020 in Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (3)

Colorado Gov issues big executive order to address the impact of coronavirus on criminal justice administration

As reported in this local article, the "signing of two new executive orders by Gov. Jared Polis to combat coronavirus were announced Thursday [including] one to limit COVID-19 in prisons." Here are the basics:

Executive order D 2020 016 concerns “protocol for state prisons and community corrections facilities,” the release said.  Directives of the order include:

  • Colorado Department of Corrections can temporarily limit the amount of prisoners it accepts, based on certain criteria, keeping offenders in pre-transfer facilities.
  • DOC can award “earned time credits” to reduce the current prison population.
  • Qualifying inmates can be referred to a “Special Needs Parole” program.
  • A $17 daily subsistence payment required from community corrections clients will be suspended.

“The potential spread of COVID-19 in facilities and prisons poses a significant threat to prisoners and staff who work in facilities and prisons, as well as the communities to which incarcerated persons will return,” the release said.

The governor’s order also calls for making 650 beds available in the DOC’s East Cañon Complex, Cañon City, to “house persons of mixed classification for operational needs related to the COVID-19 outbreak.”

Rep. Leslie Herod, a Denver Democrat who has worked extensively on prison issues, supports the order. “The Executive Order is a critical recognition that something needs to be done to contain COVID-19 in our prisons and community corrections. The virus will strike there, as it will all of our communities, and I’m encouraged that the governor recognizes this fact and is taking important steps to contain its spread,” Herod said. “This is vital and I support it. We must keep offenders and our correctional officers safe and as healthy as possible.”

Dean Williams, executive director of CDOC, also applauded and supports the order. “This Executive Order from the Governor allows us to pursue potential options to manage our prison population without jeopardizing safety during this crisis,” Williams said in a statement. “We will be working diligently over the coming days and weeks to put into action the directives from the order in a thoughtful and measured way.”

Though I am not familiar enough with Colorado law to assess all the particulars of this executive order, which is titled "Temporarily Suspending Certain Regulatory Statutes Concerning Criminal Justice," I am familiar enough with the challenges that COVID is creating that I can praise Gov Polis for being proactive in this arena. 

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

Thursday, March 26, 2020

Will thousands of federal prisoners be eligible for home confinement under AG Barr's new guidelines?

Attorney General William Barr's new directive and guidelines to the Bureau of Prisons to prioritize home confinement for certain at-risk inmates can be seen as a small response to a big emergency.  This CBS News piece notes one response along these lines:

The announcement comes after calls from criminal justice advocacy groups to reduce prison populations nationwide in order to avoid what could be a disastrous and dangerous spread of the virus.  Kevin Ring, the president of Families against Mandatory Minimums, told CBS News his concern is that inmates will die unnecessarily if the bureau does not take "bolder" actions.  Ring says officials should consider other avenues like compassionate release.  "I don't think it's enough," Ring said.  "I think it's a small step in the right direction, but I think it's a peacetime move in a time of war."

Though I share the view that even bolder action is warranted, the extraordinary size and relatively low-risk profile of the federal prison population might still well mean that many thousands of federal inmates could be moved out of prison if BOP robustly implements AG Barr's guidance. The CDC states that "older adults and people of any age who have serious underlying medical conditions may be at higher risk for more serious complications from COVID-19," and possibly as much as 20% of the 175,000+ inmates might reasonably claim to be a-risk under CDC criteria and also claim to meet the other home confinement criteria set out by AG Barr.

Even assuming that only a very small percentage of prisoners, say, only 1 out of every 15 current federal prisoners, meet the home confinement criteria, that would still mean that well over 11,000 federal prisoners would be eligible to head home to serve out the rest of their sentences.  Because BOP has a well-earn reputation for being unwilling or unable to help prisoners get out of federal facilities early, I am not so confident that we will soon be seeing thousands of federal prisoners heading home.  But the directive from AG Barr now would seem to make that more of a possibility.

Prior related posts:

March 26, 2020 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (7)

"Correctional Facilities In The Shadow Of COVID-19: Unique Challenges And Proposed Solutions"

The title of this post is the title of this lengthy and comprehensive new posting at the Health Affairs Blog.  I recommend the lengthy piece in full, and here is how it gets started:

As the global COVID-19 pandemic accelerates, it is critical to note that incarcerated people in the U.S. have a constitutional right to healthcare services that meet community standards, and that older adults and those with chronic and/or serious medical conditions in prisons and jails are at grave risk of experiencing serious illness and death due to a COVID-19 infection -- just as they would be in the community.

Given the rate and spread of infection in the U.S., direct impact in many if not most U.S. correctional systems is inevitable.  Failure to mount an adequate response to potential COVID-19 outbreaks throughout the nation’s jails and prisons has the potential to devastate the health and well-being of incarcerated Americans, the nation’s correctional workforce, and people living in the thousands of communities in which our jails and prisons are located.  As the epidemic rapidly worsens, the narrow window of opportunity to implement effective prevention and mitigation strategies on behalf of people living and working in U.S. jails and prisons is quickly closing.  Last week, the World Health Organization (WHO) called upon correctional systems worldwide to take action, issuing interim guidelines for responding to the pandemic in jails, prisons, and other places of detetion, while protecting the health, safey and human rights of incarcerated people and correctional workforces. 

While coordinated action over the coming days and weeks is critical, there are many reasons that responding to COVID-19 in U.S. jails and prisons is uniquely and extraordinarily challenging.

And here is just some of the additional commentary I saw today in this same vein:

"COVID-19 gives us an urgent argument for compassionate release"

"How mass incarceration will lead to mass infection — and how to avoid it"

"‘The Only Plan the Prison Has Is to Leave Us to Die in Our Beds’"

"What Cuomo Hasn’t Done"

"Larry Hogan can lead by addressing covid-19 in prisons and jails"

"Families Fear The Worst As Coronavirus Spreads In Prisons"

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

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

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

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

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

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

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

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

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

Download BOP Memo.Home Confinement

March 26, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

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

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

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

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

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

March 26, 2020 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

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

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

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

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

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

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

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

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

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

Wednesday, March 25, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

 

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

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

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

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

 

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

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

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

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

 

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

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

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

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

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

 

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

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

Tuesday, March 24, 2020

"Mass Incarceration: The Whole Pie 2020"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, March 23, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"We have been asked about that and we're going to take a look at it.  It's a bit of a problem," Trump said, when asked about the potential order.  "We're talking about totally nonviolent prisoners, we are actually looking at that, yes."

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

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

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

March 23, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

Saturday, March 21, 2020

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

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

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

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

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

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

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

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

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

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

Prior coronavirus posts on jails and prisons:

 

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

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

"First federal inmate tests positive for coronavirus"

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

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

Friday, March 20, 2020

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

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

Federal: "First ICE Employee Tests Positive for Coronavirus"

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

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

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

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

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

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

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

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

Thursday, March 19, 2020

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

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

In the United States

Internationally

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

Wednesday, March 18, 2020

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

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

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

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

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

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

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

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

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

Tuesday, March 17, 2020

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

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

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

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

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

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

The Coronavirus Response: Spotlight On State & Local Governments

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

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

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

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

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

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

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

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

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

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

Prior coronavirus posts:

Prior Michael Cohen sentencing posts:

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

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

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

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

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

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

Prior coronavirus posts:

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

Monday, March 16, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior coronavirus posts:

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

Thursday, March 12, 2020

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

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

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

Wednesday, March 11, 2020

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

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

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

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

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

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

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

Here are links to the companion pieces:

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

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

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

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

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

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

Tuesday, March 10, 2020

"Inmate Constitutional Claims and the Scienter Requirement"

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

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

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

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

Monday, March 09, 2020

"Data Collected Under the First Step Act, 2019"

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

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

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

Key findings....

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

March 9, 2020 in Data on sentencing, FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners | Permalink | Comments (2)

Sunday, March 08, 2020

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

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

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

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

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

Friday, March 06, 2020

"Women in Prison: Seeking Justice Behind Bars"

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

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

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

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

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

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

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

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

Tuesday, March 03, 2020

Connecting realities of incarceration to the outbreak of coronavirus

I have now seen a handful of notable stories connecting incarceration and coronavirus.  Here is a sampling:

UPDATE: On the afternoon of March 4, I receive via email this press release from NACDL titled "Nation’s Criminal Defense Bar Calls for Prompt Implementation of Comprehensive, Concrete, and Transparent COVID-19 Coronavirus Readiness Plans for Nation’s Prisons, Jails, and Other Detention Facilities."

March 3, 2020 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (4)

Saturday, February 29, 2020

"Why Shouldn't Prisoners Be Voters?"

The question in the title of this post is the headline of this New Yorker piece by Daniel Gross. The lengthy piece, which is part of the magazine's The Future of Democracy series, is worth a full read.  The subheading captures the piece's themes: "Americans take for granted that they have a right to vote. The situation of people in prison suggests otherwise."  Here is an excerpt:

Two centuries ago, only Connecticut barred citizens with criminal convictions from voting. The state’s constitution, which was ratified in 1818, declared that a man’s right to vote could be “forfeited by a conviction of bribery, forgery, perjury, duelling, fraudulent bankruptcy, theft, or other offence for which an infamous punishment is inflicted.”  In the years before the Civil War, seventeen states joined Connecticut in passing some form of felony disenfranchisement. Then, in the decade after the abolition of slavery, while the national movement for black suffrage was building momentum, ten more states, mostly in the South, quickly adopted them.  The same period saw a sharp increase, in many states, in the incarceration of African-Americans. (Although the vast majority of people in prison cannot vote, the census counts them as living where they are incarcerated, shifting political representation to the places that have prisons.)

Many state lawmakers were explicit about the racist motivations for these changes. In 1901, Alabama Democrats, who had a history of election tampering, called a convention to rewrite the state constitution. “The justification for whatever manipulation of the ballot box that has occurred in this State has been the menace of negro domination,” John B. Knox, the president of the convention, said in his opening remarks. “If we should have white supremacy, we must establish it by law—not by force or fraud.” The resulting constitution named twenty convictions, from robbery to forgery to vagrancy, that would strip men of their right to vote. The same document discriminated against black voters with poll taxes and literacy tests.

Felony-disenfranchisement laws spread across the country: by the nineteen-seventies, forty-six states had them. Massachusetts was the last state to join the group, passing a constitutional amendment in 2000 with more than sixty per cent of the vote.  (The Prison Policy Initiative observed that it was “the first time that the Massachusetts constitution has been amended to take away rights from a group of people.”)  Three years later, three researchers published a paper in the American Journal of Sociology showing that the most stringent of these laws were to be found in states with many potential voters of color.  In Tennessee, where citizens lose the franchise for life if they are convicted of crimes such as forgery, sodomy, or receiving stolen property, a fifth of African-Americans are barred from voting, according to the Sentencing Project.  (The same was true in Virginia and Alabama until recently, when the Democratic governors of those states restored the franchise to large numbers of citizens.)

Vermont and Maine, the only states that have never disenfranchised prisoners, are also the whitest states in the nation. Less than four per cent of Vermonters, and less than five per cent of Mainers, are people of color. “I do think that it’s not a coincidence that it’s only Maine and Vermont that allow inmate voting,” Emily Tredeau, a supervising attorney at the Vermont Prisoners’ Rights Office, told me.  “White voters will give pause before they disenfranchise other white people.” Joseph Jackson, a formerly incarcerated activist, added, “Mainers look at Maine folks that are incarcerated as though they are not other.”  (While the prison population in Maine is mostly white, it is significantly less white than the state as a whole: nearly twenty per cent of those incarcerated in Maine are people of color.)

February 29, 2020 in Collateral consequences, Prisons and prisoners | Permalink | Comments (2)

Tuesday, February 25, 2020

Attorney General Barr names Michael Carvajal as new permanent Director of the Bureau of Prisons

As reported in this AP piece, "Attorney General William Barr has named a new director of the beleaguered federal Bureau of Prisons, months after shaking up the agency’s top leadership following the death of wealthy financier Jeffrey Epstein."  Here is more:

Barr named Michael Carvajal as the new director Tuesday, replacing Kathy Hawk Sawyer, whom he had personally asked to return to run the agency in the wake of Epstein’s death. Carvajal is currently the assistant director of the department’s correctional programs division, which handles the daily oversight of the bureau’s correctional services. He has held a number of positions since joining the Bureau of Prisons in 1992 as a correctional officer, including working as a warden and director of a regional office.

The Army veteran is also responsible for leading the bureau’s intelligence efforts, working with other law enforcement and counterterrorism agencies around the country. “Michael’s nearly 30 years of experience with the Bureau will serve him exceptionally well as he takes on these new responsibilities, and I am confident he will do an outstanding job as director,” Barr said in a statement. “I want to thank Kathy Hawk Sawyer for her exceptional leadership and helping us identify a highly qualified individual to serve as permanent director.”

Hawk Sawyer, who will remain for now as a senior adviser at the Bureau of Prisons, did not intend to remain in the top post permanently and was appointed to help implement immediate reforms in the wake of Epstein’s suicide, three people familiar with the matter said. Her deputy, Thomas Kane, will remain in his job under Carvajal....

One of the people said a goal with Hawk Sawyer was to help raise Barr’s confidence in the bureau and identify someone to come in and the lead the bureau long-term. Senior Justice Department officials now believe the bureau is in a better position to implement the Trump administration’s sweeping criminal justice reform known as the First Step Act.

The Bureau of Prisons has been in the spotlight since Epstein killed himself in August while awaiting trial on charges he sexually abused girls as young as 14 and young women in New York and Florida in the early 2000s. But the federal prison agency has been plagued for years by a chronic staffing shortage and violence and Epstein's death while in custody highlighted a series of safety lapses inside one of the most secure jails in America.

The inspector general is investigating, and the Justice Department is still probing the circumstances that led to Epstein’s death, including why he wasn’t given a cellmate. Two correctional officers responsible for watching Epstein have pleaded not guilty to charges alleging they lied on prison records to make it seem as though they had checked on Epstein, as required, before his death.

The official statement from the Justice Department about this appoint can be found at this link. I do not know anything specific about Michael Carvajal, but I do know he will be a key figure in the continuing implementation of key provisions of the FIRST STEP Act.

February 25, 2020 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, February 23, 2020

"The Extraordinary Ordinary Prisoner: Essays From Inside America’s Carceral State"

Jeremiah-book-coverThe title of this post is the title of this notable new book authored by Jeremiah Bourgeois. The book is a collection of columns, mostly written while Jeremiah Bourgeois was serving a term of life imprisonment for a crime committed at the age of fourteen. Here is how the work is described at Amazon:

On June 7, 2016, an email from a prospective writer appeared in the inbox of The Crime Report, a nonprofit criminal justice news site. The last line in the message caught the editors' attention: “I realize that submissions should include more information. However, I hope you overlook that requirement in light of the fact that I am incarcerated.”

Over the next three years, Jeremiah Bourgeois, then confined to the Stafford Creek Corrections Center, a mixed medium-minimum security prison for men near Aberdeen, Washington, contributed 36 columns on his own transformation from self-destructive rage to dedicated writer and on subjects such as the treatment of gay and transgender prisoners, the lack of a #MeToo movement for incarcerated women, and the hypocrisies of prison “family visitation” events.

Months after Bourgeois finally won his parole in 2019, The Crime Report is publishing this collection of Jeremiah Bourgeois's most searing and unforgettable work.

The Crime Report provides more of the story in this posting:

When he wrote us, he was 38 years old — and had already spent the previous 24 years behind bars for the May 19, 1992, revenge killing of Seattle store owner Tecle Ghebremichale, who had testified against his brother in an assault case. Aged 14 at the time of his crime, he was sentenced to life without parole in the era before the Supreme Court ruled such sentences for juveniles unconstitutional.  Jeremiah had every expectation of spending the rest of his life in prison. “It was probably the saddest case I’ve ever had,” his lawyer, Michael Trickey, told the Seattle Times in 2005, noting both Jeremiah’s age and length of sentence.

Jeremiah spent much of his first decade in prison in a permanent state of anger and defensiveness, frequently in conflict with corrections officers and fellow inmates.  But then something changed.  Prisoner #708897, as he would later write in his columns, realized that he was on a path to self-destruction.  He began reinventing and reeducating himself through long hours in the prison library.

He is not the first incarceree to write his story.  Prison writing has long been a special genre, and The Crime Report has frequently published work written behind bars — by both juveniles and adults. But Jeremiah’s emergence as an independent, often contrarian, voice has been especially timely as our national debate about mass incarceration approaches a crossroads.

February 23, 2020 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)

Friday, February 21, 2020

"People Serving Life Exceeds Entire Prison Population of 1970"

The title of this post is the title of this new fact sheet released by The Sentencing Project’s Campaign to End Life Imprisonment.  Here is how the document (which is full of interesting images) get started:

As states come to terms with the consequences of 40 years of prison expansion, sentencing reform efforts across the country have focused on reducing stays in prison or jail for those convicted of nonviolent drug and property crimes.  At the same time, policymakers have largely neglected to address the staggering number of people serving life sentences, comprising one of seven people in prisons nationwide.  International comparisons document the extreme nature of these developments.  The United States now holds an estimated 40% of the world population serving life imprisonment and 83% of those serving life without the possibility of parole.  The expansion of life imprisonment has been a key component of the development of mass incarceration.  In this report, we present a closer look at the rise in life sentences amidst the overall incarceration expansion.

To place the growth of life imprisonment in perspective, the national lifer population of 206,000 now exceeds the size of the entire prison population in 1970, just prior to the prison population explosion of the following four decades.  In 24 states, there are now more people serving life sentences than were in the entire prison population in 1970, and in an additional nine states, the life imprisonment total is within 100 people of the 1970 prison population.  

February 21, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Thursday, February 20, 2020

"From Decarceration to E-Carceration"

I am sorry to have missed this article by Chaz Arnett with the title used for the title of this post when it was first posted to SSRN some months ago, but I am glad to have seen it as recently revised. Here is its abstract:

Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to their communities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of electronic monitoring as part of a burgeoning e-carceration regime, where digital prisons arise, not as substitutes to brick and mortar buildings, but as net-widening correctional strategy operationalized to work in tandem.

This Paper examines this debate on the effectiveness of electronic ankle monitors using a social marginalization framework. It argues that the current scholarly debate on the use of electronic ankle monitors is limited because it fails to consider the potential harm of social marginalization, particularly for historically subordinated groups subjected to this form of surveillance. It uses system avoidance theory to elucidate the argument that intensive criminal justice surveillance has the counterproductive effect of causing those subjected to surveillance to avoid institutions necessary for adequate reintegration and reduction in recidivism. It offers a theory of the carceral state as malleable, extending beyond prison walls, expanding our carceral reality, and placing great strains on privacy, liberty, and democratic participation. Ultimately, it stresses that a move from decarceration to e-carceration, or from mass incarceration to mass surveillance, will likely fail to resolve, and may exacerbate, one of the greatest harms of mass incarceration: the maintenance of social stratification. Thus, adequately addressing this challenge will demand a more robust and transformative approach to criminal justice reform that shifts a punitive framework to a rehabilitative one focused on proven methods of increasing defendants’ and former offenders’ connections to their community and civic life, such as employment assistance programming, technical and entrepreneurial skill development, supportive housing options, and mental health services.

February 20, 2020 in Criminal Sentences Alternatives, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Technocorrections | Permalink | Comments (0)

Sunday, February 16, 2020

As Virginia and other states consider expanding parole, might the federal system do the same in a SECOND STEP Act?

In this 2017 Federal Probation article, titled "Reflecting on Parole's Abolition in the Federal Sentencing System," I imagined various ways modern federal sentencing reform might have been less problematic if some form of parole had been retained in the Sentencing Reform Act of 1984.  I also noted how the legislation that became the FIRST STEP Act served as a kind of "parole light" while also explaining why I thought reformers "troubled by the punitive policies that the SRA helped usher into the federal system ought to think about talking up the concept of federal parole anew."

This not-so-old-but-already-dated article came to mind as I saw this piece from the New York Times this week under the full headline "‘It Didn’t Work:’ States That Ended Parole for Violent Crimes Are Thinking Again; Virginia, newly dominated by Democrats, may broaden parole for the first time in a generation. Others states are watching."  Here are excerpts:

After Zenas Barnes was convicted of three robberies in the 1990s, he accepted a plea deal that stunned even veteran lawyers for its severity: 150 years in state prison. Mr. Barnes, who was 21 at the time, said that he had not realized when he took the deal that the Virginia Legislature had, only months before, abolished the most common type of parole, meaning that there was a good chance he would die in prison.

Twenty-five years later, the State Legislature, newly dominated by Democrats, is poised to broaden parole for the first time in a generation.  The move would give Mr. Barnes and thousands of other prisoners convicted of violent crimes a chance for parole, which allows inmates to be released early.

Watching closely are lawmakers across the nation, including in California, New York, Illinois and Pennsylvania.  Like Virginia those states decades ago virtually eliminated discretionary parole, granted by appointed boards on a conditional basis, during an era of surging violent crime and the imposition of progressively harsher punishments.

“We thought we were fighting crime, and it didn’t work,” said David Marsden, a Democratic state senator in Virginia, who has previously introduced bills to restore parole but was blocked by Republican majorities.  “But more recently, we’ve stopped trying to teach lessons and started trying to solve problems.  People are now more likely to believe that people deserve a second chance.”...

Even in Virginia, where Democrats won majorities in both chambers of the Legislature in November, and which also has a Democratic governor, Ralph Northam, the question of expanding parole remains politically perilous.  This month, Democrats shelved a bill that would have restored the possibility of parole for nearly 17,000 inmates — more than half the state’s prison population.  Instead, Democrats have focused on more modest efforts to restore parole to older inmates.

“The prevailing attitude of policymakers is we’ve come to the limit because they don’t want to release violent offenders,” said Marc Mauer, executive director of the Sentencing Project, a nonprofit that advocates shorter sentences and other policy changes to the criminal justice system.  There is no significant difference in violent crime rates between states that allow parole and those that do not, according to federal data.  But Mr. Mauer said many people associate parolees with recidivism and violence, and their crimes often garner significant public attention.

Republican lawmakers have warned that restoring parole would make Virginia — which has the fourth lowest violent crime rate of any state — more dangerous.  “When parole is granted, it will result in violent criminals being released into our communities,” said Robert Bell, a Republican member of the House of Delegates.  Mr. Bell added that parole “will force victims of violent crimes and their families to relive the worst day of their lives over and over again.”...

Both chambers of the Virginia Legislature have already approved a bill that would make hundreds of prison inmates eligible for parole because they were convicted by juries that were not informed by courts that defendants were no longer eligible for parole after the practice was abolished in 1995.  Governor Northam has said he will support it.

Mr. Northam has also said he supports a bill that would grant parole eligibility to prisoners who are older than 50, a group that may number in the thousands.  He has not yet said whether he would sign a measure that would restore the possibility of parole to thousands of inmates who have served 20 years or more of their sentences.  Both bills are expected to be passed by both chambers of the Legislature.  The governor has not taken a position on the shelved bill that would have restored the possibility of parole for more than half the state’s prison population.

I think it wise for any parole reform, at the state or federal level, to move forward incrementally.  Given the Supreme Court's Eighth Amendment rulings, jurisdictions ought to have general parole mechanism that are available to all young offenders sentenced to very long prison terms.  Likewise, public safety concerns would be minimized if and when parole eligibility is at least initially focused upon defendants imprisoned for long periods for non-violent offenses (especially for first offenses and for offenses without victims).

Notably, the federal prison system likely has many more defendants imprisoned for long periods for non-violent offenses than do state systems because, according to federal prison data, roughly 40% of federal prisoners are incarcerated for drug offenses and nearly half are serving terms of 10 years or longer.  In other words, I think the federal system would be one in which it would be ideal to develop a new modern (and initially modest) system of parole.

Notably, as reported in this post back in November, at a Senate Judiciary oversight hearing with the head of the federal Bureau of Prisons, Senator Lindsay Graham raised the idea of "reinstituting parole in the federal system."  I am sorry we have not yet seen any follow-up on this idea from Senator Graham or others, but I am encouraged that parole appears to no longer be a dirty word in various criminal justice reform conversations.  And, as the title of this post indicates, I think it would be a great idea to include in any SECOND STEP federal reform proposals to follow up the "parole light" elements in the FIRST STEP Act.

February 16, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)