Tuesday, April 07, 2020

Yet another Texas execution postponed due to coronavirus

As reported in this new AP piece, headlined "4th Texas execution delayed in midst of virus outbreak," administration of the death penalty in the US continue to be halted amidst the coronavirus pandemic.  Here is more:

A fourth scheduled execution of a Texas death row inmate was delayed Monday because of the coronavirus spread around the state.  Billy Joe Wardlow’s execution was postponed from April 29 to July 8.

Wardlow, 45, was condemned for the June 1993 fatal shooting of 82-year-old Carl Cole during a robbery at his home in Cason, located about 130 miles (209 kilometers) east of Dallas....

The execution date was changed by state District Judge Angela Saucier of Titus County in East Texas.  While Saucier didn’t mention COVID-19 in her order, Morris County District Attorney Steve Cowan had requested the change citing the statewide disaster declaration due to the virus.  He also cited three other executions the Texas Court of Criminal Appeals delayed in March and earlier this month. Wardlow’s attorneys had requested the execution date instead be withdrawn, which would have resulted in a new date much later than July 8.

Some prior related capital COVID posts:

April 7, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Monday, April 06, 2020

Attorney General Barr instructs federal prosecutors to consider "vulnerability to COVID-19" when litigating pre-trial detention issues

As reported in this new Politico piece, "Attorney General Bill Barr is taking another step to adjust the federal criminal justice system to the ongoing coronavirus pandemic, encouraging prosecutors to consider the dangers posed by sending a defendant to await trial in jail as the virus sweeps into such facilities."  Here is more:

Barr sent a memo Monday to top federal prosecutors across the country urging them to consider not only the risks a defendant might face in detention, but the risk inherent in increasing the jail population at a time when cases of the virus are on the increase.

“You should now consider the medical risks associated with individuals being remanded into federal custody during the COVID-19 pandemic,” Barr wrote in his two-page missive. “Even with the extensive precautions we are currently taking, each time a new person is added to a jail, it presents at least some risk to the personnel who operate that facility and to the people incarcerated therein.”

While Barr’s directive seems intended to prod prosecutors to show more flexibility in considering release, bail or home confinement pending trial, the memo is replete with caveats and warnings that defendants who pose a threat to public safety still need to be detained despite the challenges the virus is creating for jails and prisons nationwide....

The new directives from Barr come as the Justice Department is increasingly besieged with lawsuits, writs and legal motions seeking release of individual inmates as well as large classes of prisoners considered most vulnerable to serious illness or death from Covid-19.

As of Sunday, the federal Bureau of Prisons reported 138 inmates have been confirmed as infected with the virus.  Eight deaths from it have been recorded.  Barr’s memo from Friday urged prison official to make a priority of considering early releases for three prison complexes suffering serious outbreaks — those in Oakdale, La., Elkton, Ohio and Danbury, Conn.

One new suit filed Monday seeks release of prisoners at the Oakdale complex considered at highest risk from the illness.

The full text of this new two-page Barr memo is available at this link.

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

Brennan Center urges all Governors to use executive authority to "release vulnerable people who pose no risk to public safety from incarceration"

The title of this post would make plenty of sense even in a world without COVID, as vulnerable people who pose no risk to public safety really ought not be kept behind bars even in the best of times.  But, of course, right now we live in a world with COVID, and that has prompted the Brennan Center to produce this new seven-page letter, addressed to "the Honorable Governors of the fifty states," which includes these passages at the outset:

However, the almost 2 million people behind bars at the county and state level, plus the thousands of employees who work in correctional institutions, face an even greater risk of illness and death than the general public.  We write today to urge you to use your full authority as Governors to release as many people as possible from incarceration, provided they do not pose serious public safety threats, for the duration of the pandemic.  This effort should focus on people who are especially vulnerable to infection.  Specifically, we recommend you take the following steps, which we explain in depth below:

• Make full use of your clemency authority to commute the sentences of vulnerable people to time served, allowing their immediate release, or fashion other appropriate relief;

• Expand your States’ “good time credit” or equivalent programs to reduce overall incarceration;

• Work with state prosecutors to keep people who have been convicted of crimes, but not yet sentenced, out of prison for the duration of this health crisis; and

• Take steps to limit the damaging impact of criminal justice debt, including but not limited to court fees and fines.

The letter includes this partial accounting of some steps that have already been taken in some jurisdictions:

Already, some state leaders have acted to prevent the spread of Covid-19 in their correctional systems. For example, in Illinois, Governor J.B. Pritzker issued an executive order stopping the Illinois Department of Corrections from admitting new people into prison.  On March 22, Governor Jared Polis of Colorado signed an executive order ensuring detention centers reduce the number of people meeting in groups in “any confined indoor or outdoor space,” such as housing unit common areas.  In New York, Governor Andrew Cuomo issued an order on March 27th to release approximately 1,100 people from prisons and jails, specifically non-serious parole violators.  Iowa’s Department of Corrections is expediting the release of about 700 incarcerated people who have been determined eligible by the Iowa Board of Parole in addition to ensuring that those released have a safe place to stay.  And California is granting early release to 3,500 incarcerated individuals in an attempt to reduce overcrowding in state prisons during the COVID-19 pandemic.  The accelerated prison discharges apply to those who were set to be released within the next 60 days.

April 6, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Exciting new (COVID-free) reduction of LWOP sentence, based in part on "sentencing disparity," using § 3582(c)(1)(A) in US v. Millan

In this post a few weeks ago, just before the COVID-19 outbreak became the urgent basis for lots of sentence reductions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A), I flagged a number of new positive rulings granting sentencing reductions using 3582(c)(1)(A) on various grounds.  I am now pleased to be able spotlight another great ruling that adds to the list of reasons (other than COVID) that have now served as the basis for a sentence reduction, even of a life sentence. 

I must disclose that this new ruling, in US v. Millan, No. 91-CR-685 (LAP) (SDNY April 6, 2020) (download below), is especially meaningful to me because I had the honor of helping Harlan Protass a bit with the motion papers.  But I think all those working on sentence reduction motions will find value in the 45-page Millan opinion's discussion of the factors that justified reducing Eric Millan's sentence from LWOP to time served of 28 years.  I recommend the opinion in full, and the opening and closing paragraphs highlight the essentials:

Before the Court is Eric Millan’s motion, pursuant to 18 U.S.C. § 3582(c)(1)(A), for an Order reducing his life sentence (of which he has already served more than 28 years) to time served.1 The Government opposed the motion, and the parties filed additional letters. For the reasons that follow, the motion is granted....

Mr. Millan’s extraordinary rehabilitation, together with his remorse and contrition, his conduct as model prisoner and man of extraordinary character, his leadership in the religious community at FCI Fairton, his dedication to work with at-risk youth and suicide prevention, and the support of BOP staff at FCI Fairton, including their opinion that if released, Mr. Millan would be a productive member of society and no danger to others, and the sentencing disparity that would result from further incarceration all constitute extraordinary and compelling reasons justifying a reduction in sentence.  Accordingly, for all of the foregoing reasons, pursuant to 18 U.S.C. § 3582(c)(1)(A), Eric Millan’s motion for a reduction of sentence is granted, and his life sentence is reduced to time served.

Download US v. Millan 91-CR-685 (LAP). Order Granting Compassionate Release

As the title of this post highlights, I think it is especially notable and important that the court stressed "the sentencing disparity that would result from further incarceration" as one of the bases for finding that this case involved "extraordinary and compelling reasons justifying a reduction in sentence."  Many persons who are serving the most extreme federal sentences have often been subject to a mandatory minimum term or a trial penalty or some other case-processing sentencing reality that has resulted in a much longer sentence for one defendant than has been served by a number of similarly situated defendants.  Given that Congress stressed to judges in § 3553(a)(6) "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," this kind of application of § 3582(c)(1)(A) seems to be a sound and sensible way to remedy problematic sentencing disparities in appropriate cases like Eric Millan's.

UPDATE: I learned this afternoon of another (COVID-free) sentence reduction ruling today in US v. Decator, No. CCB-95-0202 (D. Md. April 6, 2020) (download below).  Here is how this opinion starts and some key passages:

Kittrell Decator is a federal prisoner who is serving a 633-month sentence for convictions stemming from his participation in several armed bank robberies in the early 1990s. To date, Decator has served over 25 years of his sentence. Now pending is Decator’s motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (the “compassionate release” statute). The government opposes the motion, and Decator has replied. For the reasons explained below, the motion will be granted and Decator’s sentence reduced to time served....

Multiple district courts have reasoned that “the First Step Act’s change in how sentences should be calculated when multiple § 924(c) charges are included in the same indictment constitutes an extraordinary and compelling reason under 18 U.S.C. § 3582(c)(1)(A).” See United States v. Owens, No. 97-CR-2546-CAB, ECF 93 at 4 (S.D. Cal. Mar. 20, 2020) (collecting cases). The court agrees with this reasoning. The fact that Decator, if sentenced today for the same conduct, would likely receive a dramatically lower sentence than the one he is currently serving, constitutes an “extraordinary and compelling” reason justifying potential sentence reduction under § 3582(c)(1)(A)(i)....

The court acknowledges that Decator’s offenses were indeed serious. While no one was physically injured, Decator’s actions caused psychological pain to his victims. The court believes that the 25-plus years in prison Decator has already served reflect the seriousness of his conduct and demonstrate the need for deterrence, public safety, and respect for the law. But Decator’s continued incarceration would be both disproportionate to the seriousness of his offense and to what Congress now deems appropriate for this kind of conduct.

Download Decator Decision

April 6, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

SCOTUS upholds, by vote of 8-1, traffic stop after run of vehicle plate shows revoked driver's license

The Supreme Court this morning handed down its opinion in Kansas v. Glover, No. 16-556 (S. Ct. Apr. 6, 2020) (available here). Justice Thomas delivered the opinion of the Court, which start this way:

This case presents the question whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license.  We hold that when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable.

The short majority opinion is sure at the end to reiterate that "the ultimate touchstone of the Fourth Amendment is reasonableness;" the Court makes sure to "emphasize the narrow scope of our holding" by stressing "the presence of additional facts might dispel reasonable suspicion." Ergo, keep litigating.

A five-page concurrence authored by Justice Kagan and joined by Justice Ginsburg makes an interest collateral consequences point. Here is an excerpt (with cites removed):

I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws.  Consider, for example, if Kansas had suspended rather than revoked Glover’s license.  Along with many other States, Kansas suspends licenses for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support.  Indeed, several studies have found that most license suspensions do not relate to driving at all; what they most relate to is being poor. So the good reason the Court gives for thinking that someone with a revoked license will keep driving — that he has a history of disregarding driving rules — would no longer apply.

A lengthy concurrence authored by Justice Sotomayor gets started and ends this way:

In upholding routine stops of vehicles whose owners have revoked licenses, the Court ignores key foundations of our reasonable-suspicion jurisprudence and impermissibly and unnecessarily reduces the State’s burden of proof. I therefore dissent....

Vehicle stops “interfere with freedom of movement, are inconvenient, and consume time.” Prouse, 440 U. S., at 657.  Worse still, they “may create substantial anxiety” through an “unsettling show of authority.” Ibid.  Before subjecting motorists to this type of investigation, the State must possess articulable facts and officer inferences to form suspicion. The State below left unexplained key components of the reasonable-suspicion inquiry.  In an effort to uphold the conviction, the Court destroys Fourth Amendment jurisprudence that requires individualized suspicion.  I respectfully dissent.

April 6, 2020 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, April 05, 2020

Bureau of Prisons provides update on its work to implement increased home confinement in response to COVID-19

With thanks to readers who made sure I did not miss this news on a Sunday night, the federal Bureau of Prisons has posted here a new memo titled "Update on COVID-19 and Home Confinement."  Here is the full text with emphasis and links from the original:

In response to COVID-19, the Bureau of Prisons (BOP) has instituted a comprehensive management approach that includes screening, testing, appropriate treatment, prevention, education, and infection control measures.

The BOP has increased Home Confinement by over 40% since March and is continuing to aggressively screen all potential inmates for Home Confinement. On April 3, the Attorney General enacted emergency authority under the CARES Act, to further increase Home Confinement.

Given the surge in positive cases at select sites and in response to the Attorney General's directives, the BOP has begun immediately reviewing all inmates who have COVID-19 risk factors, as described by the CDC, starting with the inmates incarcerated at FCI Oakdale, FCI Danbury, FCI Elkton and similarly-situated facilities to determine which inmates are suitable for home confinement.

Inmates do not need to apply to be considered for home confinement. Case management staff are urgently reviewing all inmates to determine which ones meet the criteria established by the Attorney General. The Department has also increased resources to review and make appropriate determinations as soon as possible.

While all inmates are being reviewed for suitability, any inmate who believes they are eligible may request to be referred to Home Confinement and provide a release plan to their Case Manager. The BOP may contact family members to gather needed information when making decisions concerning Home Confinement placement.

Since the release of Attorney General Barr's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 566 inmates on home confinement. There are currently 3,419 inmate on home confinement and 7,199 inmates in Residential Reentry Centers (RRCs). To further assist inmates in pre-release custody, the BOP has waived financial requirement to pay subsistence fees.

We are deeply concerned for the health and welfare of those inmates who are entrusted to our care, and for our staff, their families, and the communities we live and work in. It is our highest priority to continue to do everything we can to mitigate the spread of COVID-19 in our facilities.

The BOP appreciates the dedication and significant work of BOP staff in carrying out their difficult mission in the face of the public emergency. The BOP would also like to thank the Attorney General, the CDC, the Public Health Service, and our state and local community partners for their support and assistance in the BOP's COVID-19 response.

A few of many prior related posts:

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

Saturday, April 04, 2020

Misguided dicta from Third Circuit panel on procedural aspects of sentence reduction motions under § 3582(c)(1)(A)

In many prior posts since the FIRST STEP Act was enacted, I have made much of the provision that allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without needing a formal motion brought and supported by the Bureau of Prisons.  Well before anybody had heard of COVID-19, this provision seemed so very significant because, if applied appropriately and robustly, it could enable many hundreds (and perhaps many thousands) of federal prisoners to have their excessive federal prison sentences reduced.

Of course, as I have highlighted in recent posts here and here, sentence reduction motions under § 3582(c)(1)(A) have become hugely important in the coronavirus world of federal sentencing.  As SDNY Chief Judge Coleen McMahon astutely stated this week in US v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) (download here), "releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19."   As noted in this post, FAMM has wisely urged tens of thousands of federal prisons to consider pursuing sentence reduction motions under § 3582(c)(1)(A) during this terrible time when any federal prison term can become a potential death sentence.

But, importantly, a procedural issue can complicate sentence reduction motions under § 3582(c)(1)(A) because the text now now provides: "the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment..."  In other words, this text provides that a sentence reduction motion can be acted upon by the court (1) immediately if brought by BOP, or (2) as soon as a defendant requests such a motion and that request is formally/finally denied by BOP or 30 days has lapsed, "whichever is earlier."  Because the Director of the Bureau of Prisons rarely brings motions on behalf of prisoners and because BOP's administrative process for reviewing requests is historically quite slow, this provision has often functionally meant that courts would consider these motions 30 days after a BOP request is made by the defendant.

Under normal circumstances, this procedural provision struck me as a reasonable way to give the Bureau of Prisons a first opportunity to consider supporting a sentence reduction motion before the defendant heads to court. (That said, I have heard various ugly reports about the BOP treating an inmate poorly in various ugly ways after he has requested  a sentence reduction motion).  But in a COVID-19 word in which every day brings increasing positive cases and deaths among federal inmates and staff, waiting 30 days to rule on a compelling sentence reduction motion under § 3582(c)(1)(A) could literally have deadly consequences for an inmate and others he comes into contact with.  (It was only roughly 30 days ago that the US had its first COVID death, we could be over 10,000 US deaths by the end of this weekend.)   Consequently, I was not surprised to see, in US v. Perez, No. 17 Cr. 513-3 (AT) (SDNY Apr. 1, 2020) (download here), a federal judge waive the "30-day lapsing" requirement based on the determination that, for the defendant, "remaining incarcerated for even a few weeks increases the risk that he will contract COVID-19," and so "requiring exhaustion ... would be directly contrary to the purpose of identifying and releasing individuals whose circumstances are 'extraordinary and compelling'."  

This extended discussion is a prelude to noting a troubling opinion handed down by a Third Circuit panel in United States v. Raia, No. 20-1033 (3d Cir. Apr. 2, 2020) (available here).  This case involved a 68-year-old New Jersey politician given a three-month sentence who reported to a federal prison on March 3 while the government was pursuing an appeal of his sentence as to low.  With his appeal pending, the defendant first "asked BOP to move for compassionate release on his behalf. But before BOP responded, and before thirty days passed, Raia filed his own motion with the District Court for compassionate release given the present pandemic caused by COVID-19. The district court dismissed the motion because it decided the "pending appeal divested it of jurisdiction," but it also indicated it would grant the motion if it could.

In the Third Circuit, Raia did not appeal this order but instead "filed a motion asking this Court to decide his compassionate release motion [or] to return jurisdiction to the District Court by dismissing the government’s appeal without prejudice [under FRAP 3(a)(2)." In response, the Third Circuit panel starts on solid ground: "We cannot decide Raia’s compassionate-release motion in the first instance. Section 3582’s text requires those motions to be addressed to the sentencing court." That strikes me as right not only as a matter of statutory text, but also as a matter of sound policy: district motions for sentence reductions ought to be addressed in the first instance by sentencing courts, not appeals courts. Continuing to address points raised by Raia, the panel then says (cites and quote removed): "Nor can we dismiss the government’s appeal under Rule 3(a)(2). Rule 3(a)(2) dismissal is a sanction for failing to comply with procedural rules. Here, there is nothing the government has failed to do."

Having addressed are rejected claims by the appellant, things go sideways as the Third Circuit panel says the following (which I am calling dicta it does not respond to claims actually brought by the litigant):

We could, however, remand the case to the District Court while retaining jurisdiction over the government’s appeal under Rule 12.1.  That would allow the District Court to consider Raia’s compassionate-release request in the first instance.

But any remand would be futile.  As noted, Raia failed to comply with § 3582(c)(1)(A)’s exhaustion requirement: BOP has not had thirty days to consider Raia’s request to move for compassionate release on his behalf, nor has Raia administratively exhausted any adverse decision by BOP.  Although the District Court’s indicative ruling did not mention the exhaustion requirement, it presents a glaring roadblock foreclosing compassionate release at this point.

Accordingly, since Rule 3(a)(2) is inapt and since remanding the matter under Rule 12.1 would be futile, we will deny Raia’s motion outright.

This "futile" language here creates the problematic impression that "30-day lapsing/exhaustion" language in 18 U.S.C. § 3582(c)(1)(A) is tantamount to a jurisdictional bar to the granting of a sentence reduction motion.  But the language and structure of this requirement makes it appear much more like what the Supreme Court calls "nonjurisdictional claim-processing rules."  Fort Bend County v. Davis, No. 18-525 (S. Ct. June 3, 2019) (available here).  With COVID-19 making every day matter, this is a critically important distinction because claim-processing rules can be forfeited if not raised by a party and might be subject to equitable exceptions.  In other words, if and when the "30-day lapsing/exhaustion" language is properly understood by courts as a claim-processing rules, then courts can (1) ask federal prosecutors if they are willing to waive/forfeit the requirement in a particular case, and courts may be able (2) on their own, as in the Perez case, to decide that the requirement need not be meet given the equities of a particular case.

I hope that counsel might be seeking reconsideration or even an emergency rehearing en banc in Raia.  Because it is not at all clear that a remand would be futile, and especially because the Third Circuit panel here spun off some misguided dicta on an issue that appears not to have even been briefed, this portion of the opinion ought to be retracted at least until a court considers these (now life-and-death) issues with the assistance of full briefing.

UPDATE: I just noticed that the same panel that decided Raia also handed down last week a more defendant-friendly COVID opinion in United States v. Roeder, No. 20-1682 (3d Cir. Apr. 1, 2020) (available here).  Here is how this (unpublished) opinion starts and ends:

Calvin Roeder filed an emergency appeal seeking review of the District Court’s denial of his motion to postpone his self-surrender date in light of the COVID-19 pandemic. We reversed the District Court’s denial on March 29, 2020. We now provide the reasons for our order....

Under ordinary circumstances, it would be our preference to vacate the District Court’s order and permit it to provide substantive conclusions concerning the merits of Roeder’s motion.  These are not, however, ordinary times.  In light of the exigent circumstances surrounding the COVID-19 pandemic and the timing of our ruling (less than 24 hours before Roeder’s scheduled surrender date), we were compelled to grant relief and reverse the District Court’s order — even though the existence of a widespread health risk is not, without more, a sufficient reason for every individual subject to a properly imposed federal sentence of imprisonment to avoid or substantially delay reporting for that sentence.
While the COVID-19 pandemic has given rise to exceptional and exigent circumstances that require the prompt attention of the courts, it is imperative that they continue to carefully and impartially apply the proper legal standards that govern each individual’s particular request for relief.  If, in the future, Roeder seeks an additional modification of his self-surrender date, we expect that the District Court will provide an adequately reasoned decision so that, if an appeal follows, we may engage in a thorough appellate review.

April 4, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, April 03, 2020

Attorney General Barr issues new memo calling for BOP to "move with dispatch" to get vulnerable inmates out of federal prison COVID hot-spots

As reported in this new Politico piece, headlined "Barr to speed releases at federal prisons hard hit by virus," it appears that the US Attorney General is coming to understand the dire situation being created by COVID-19 in federal prisons. Here are tonight's important new developments

Attorney General Bill Barr is ordering federal prison officials to intensify their efforts to release “vulnerable” inmates at three prison complexes that are struggling to contain major outbreaks of the coronavirus.

Barr said he’s seeking to speed the process of sending selected inmates at prisons in Danbury, Conn., Oakdale, La., and Elkton, Ohio to home confinement because of the danger serious levels of infection at those facilities pose to elderly prisoners and those with pre-existing health conditions.

“We are experiencing significant levels of infection at several of our facilities,” Barr said in the new memo dated Friday and obtained by POLITICO Friday night. “We have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions.”

Barr also said he was exercising for the first time expanded release authority Congress granted him in the stimulus bill known as the Cares Act that was signed into law by President Donald Trump last Friday.

Under previous law, federal prisoners were only eligible for home confinement after they’d completed 90 percent of their sentences. However, the new legislation allows for earlier releases if the attorney general formally declares an emergency, which he did Friday.

“The CARES Act now authorizes me to expand the cohort of inmates who can be considered for home release upon my finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons,” Barr wrote. “I hereby make that finding and direct that … you give priority in implementing these new standards to the most vulnerable inmates at the most affected facilities.”...

A total of 522 inmates were moved to home confinement following Barr’s directive last week, according to the Bureau of Prisons.

Barr’s public comments supporting early releases for some inmates seemed to be in tension with remarks Trump made Thursday, where he lashed out at state and local officials for endangering the public by releasing convicted criminals and said he might even step in to try to halt such releases....

Barr's new directive stresses that public safety concerns must be taken into account when considering whom to release. "While we have a solemn obligation to protect the people in BOP custody, we also have an obligation to protect the public," the attorney general wrote. "That means we cannot simply release prison populations en masse into the streets. Doing so would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses."

While Barr emphasized that early releases must be assessed on a case-by-case basis, he said that some precautions normally taken in such situations could be waived in the current crisis, such as GPS monitoring for those being sent home.

A few of many prior related posts:

April 3, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Massachusetts Supreme Judicial Court issues lengthy opinion to address COVID issues in state jails and prisons

The Massachusetts Supreme Judicial Court this week heard argument on an emergency petition from defense lawyers seeking a reduction of prisoners to limit outbreaks of the coronavirus in the state’s prison and jails. This afternoon, the Mass SJC issued this 45-page opinion, and here are excepts from how it gets started:

The petitioners, the Committee for Public Counsel Services (CPCS) and the Massachusetts Association of Criminal Defense Lawyers (MACDL), bring our focus to the situation with respect to COVID-19 confronting individuals who are detained in jails and houses of correction pending trial, and individuals who have been convicted and are serving a sentence of incarceration in the Commonwealth.  To allow the physical separation of individuals recommended by the CDC, the petitioners seek the release to the community of as many individuals as possible as expeditiously as possible, indeed, on the day of argument in this case, according to one of them.  They offer a number of different legal theories under which a broad-scale release might be accomplished.

We conclude that the risks inherent in the COVID-19 pandemic constitute a changed circumstance within the meaning of G. L. c. 276, § 58, tenth par., and the provisions of G. L. c. 276, § 557.  To decrease exposure to COVID-19 within correctional institutions, any individual who is not being held without bail under G. L. c. 276, § 58A, and who has not been charged with an excluded offense (i.e., a violent or serious offense enumerated in Appendix A to this opinion) is entitled to a rebuttable presumption of release.  The individual shall be ordered released pending trial on his or her own recognizance, without surety, unless an unreasonable danger to the community would result, or the individual presents a very high risk of flight....

With respect to those individuals who are currently serving sentences of incarceration, absent a finding of a constitutional violation, our superintendence power is limited. Those who have been serving sentences for less than sixty days may move to have their sentences revised or revoked under Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016) (Rule 29).  Those who are pursuing appellate proceedings or a motion for a new trial may seek a stay of execution of sentence...

Where there is no constitutional violation, however, art. 30 of the Massachusetts Declaration of Rights precludes the judiciary from using its authority under Rule 29 to revise and revoke sentences in a manner that would usurp the authority of the executive branch.  Removing any limitation on the time in which a motion to revise and revoke a sentence may be brought, however, would do precisely that.  See Commonwealth v. McCulloch, 450 Mass. 483, 488 (2008), quoting Commonwealth v. McGuinness, 421 Mass. 472, 476 n.4 (1995) ("A judge may not interfere with the executive function of the parole board by using postconviction evidence in an order to revise and revoke").

To afford relief to as many incarcerated individuals as possible, the DOC and the parole board are urged to work with the special master to expedite parole hearings, to expedite the issuance of parole permits to those who have been granted parole, to determine which individuals nearing completion of their sentences could be released on time served, and to identify other classes of inmates who might be able to be released by agreement of the parties, as well as expediting petitions for compassionate release.

As the petitioners have argued, and the respondents agree, if the virus becomes widespread within correctional facilities in the Commonwealth, there could be questions of violations of the Eighth and Fourteenth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights; nonetheless, at this time, the petitioners themselves clarified in their reply brief and at oral argument that they are not raising such claims.

April 3, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Pleased to see growing number of COVID-influenced grants of sentence reductions using § 3582(c)(1)(A)

As highlighted in this post from just two days ago, earlier this week I had only found a handful of court decisions granting sentence reductions using § 3582(c)(1)(A) because of the "extraordinary and compelling" public health crisis created by COVID-19.  But, as the reports of positive COVID-19 cases and even deaths grow in the federal prisons system, so too are the the COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).  Here are some sentence reduction orders I found on Westlaw and via emails from just the past few days:

United States v. Jepsen, No. 3:19-cv-00073(VLB), 2020 WL 1640232 (D. Conn. Apr. 1, 2020) ("Mr. Jepsen is in the unique position of having less than eight weeks left to serve on his sentence, he is immunocompromised and suffers from multiple chronic conditions that are in flux and predispose him to potentially lethal complications if he contracts COVID-19, and the Government consents to his release.  The Court finds that the totality of the circumstances specific to Mr. Jepsen constitute 'extraordinary and compelling'reasons to grant compassionate release.")

United States v. Williams, No. 3:04cr95/MCR (ND Fla. Apr. 1, 2020) (download here) ("Williams' cardiovascular and renal conditions compromise his immune system, which, taken with his advanced age, put him at significant risk for even more severe and life threatening illness should he be exposed to COVID-19 while incarcerated.... Based on these facts, the Court finds that Williams’ deterioration in physical health is sufficiently serious to satisfy the medical criteria for a reduction in sentence."): Download US v. Andre Williams (ND FL 4.1.20)

United States v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) (download here) ("Releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19"): Download Resnick covid order  (Now also at 2020 WL 1651508).

United States v. Brannan, No. 4:15-CR-80-01 (SD Tx. Apr. 2, 2020) (download here) (though not reflected in order, emergency motion was granted on same day of filing for prisoner who had served only 9 months of a 36-month sentence for fraud at FCI Oakdale and had not exhausted BOP remedies): Download 15cr80 Order for Compassionate Release

United States v. Colvin, No. 3:19cr179 (JBA), 2020 WL 1613943 (D. Conn. Apr. 2, 2020) ("She has diabetes, a 'serious ... medical condition,' which substantially increases her risk of severe illness if she contracts COVID-19.... Defendant is 'unable to provide self-care within the environment of' FDC Philadelphia in light of the ongoing and growing COVID-19 pandemic because she is unable to practice effective social distancing and hygiene to minimize her risk of exposure, and if she did develop complications, she would be unable to access her team of doctors at Bridgeport Hospital. In light of the expectation that the COVID-19 pandemic will continue to grow and spread over the next several weeks, the Court concludes that the risks faced by Defendant will be minimized by her immediate release to home, where she will quarantine herself.")

United States v. Foster, No. 1:14-cr-324-02 (MD Pa. Apr. 3, 2020) (download here) ("The circumstances faced by our prison system during this highly contagious, potentially fatal global pandemic are unprecedented. It is no stretch to call this environment 'extraordinary and compelling,' and we well believe that, should we not reduce Defendant’s sentence, Defendant has a high likelihood of contracting COVID-19 from which he would “not expected to recover.” USSG § 1B1.13. No rationale is more compelling or extraordinary."): Download MDPa Foster JonesJ MemOrd GrantRIS e040320

As I have said before, I am fairly confident that this list does not represent all, and I hope it does not even capture most, of the sentence reductions granted by federal district courts in the last few days.  Readers are encouraged to use the comments or to send me emails to supplement this list as new ruling are handed down or become available.

Prior recent related posts:

UPDATE: Here are a few more sentence reductions granted by federal district courts in the last few days that just showed up online or were sent my way:

United States v. Edwards, No. 6:17-cr-00003, 2020 WL 1650406 (D. Conn. Apr. 2, 2020) ("Defendant presented a strong case for compassionate release on account of his incurable brain cancer even before the outbreak of the COVID-19 pandemic. But Defendant's request was further substantiated with a particularized showing that he is susceptible to contracting COVID-19, and that he is at high risk if he contracts it. The Court finds that Defendant has demonstrated an extraordinary and compelling reason for his compassionate release.")

United States v. Zukerman, No. 16 Cr. 194 (AT) (SDNY Apr. 3, 2020) (download here) ("First, the Court holds that Zukerman’s exhaustion of the administrative process can be waived in light of the extraordinary threat posed — in his unique circumstances — by the COVID-19 pandemic.  Second, although the sentence imposed on Zukerman was wholly warranted, the Court holds that the threat posed by COVID-19, in light of his age and medical status, constitutes an extraordinary and compelling reason to modify Zukerman’s sentence.") Download Order granting Zukerman reqest for compassionate release

April 3, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

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)

A few (too few) recent COVID-influenced grants of sentence reductions using § 3582(c)(1)(A)

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

A few weeks ago before the COVID-19 outbreak became the most urgent of stories, I was starting to notice on Westlaw a growing number of rulings granting sentencing reductions using 3582(c)(1)(A).  I listed some of these pre-COVID positive cases in this March 23 post.  While writing that prior post, I was thinking it might be only a matter of days before a lot more courts granted a lot more sentence reductions using § 3582(c)(1)(A) because of the "extraordinary and compelling" public health crisis created by COVID-19.  Somewhat disappointingly, I have only so far been able to locate a handful of recent COVID-influenced grants of sentence reductions using § 3582(c)(1)(A):

United States v. Campagna, No. 16 Cr. 78-01 (LGS), 2020 WL 1489829 (SDNY Mar. 27, 2020) ("Defendant’s compromised immune system, taken in concert with the COVID-19 public health crisis, constitutes an extraordinary and compelling reason to modify to Defendant’s sentence on the grounds that he is suffering from a serious medical condition that substantially diminishes his ability to provide self-care within the environment of the RCC.")

United States v. Powell, No. No. 1:94-cr-00316 (ESH) (DDC Mar. 28, 2020) (available here) ("Defendant is 55-years-old, suffers from several respiratory problems (including sleep apnea and asthma), and has only 3 months remaining on his 262-month sentence. The government does not oppose the relief sought. In addition, the Court finds that requiring defendant to first seek relief through the Bureau of Prisons’ administrative process would be futile because defendant has an open misdemeanor case in Superior Court which the Bureau of Prisons has advised defense counsel renders defendant ineligible for home confinement.")

United States v. Muniz, No. 4:09-CR-0199-1, 2020 WL 1540325 (SD Tex. Mar. 30, 2020) ("Because Defendant is at high-risk for severe illness from COVID-19 and because inmates in detention facilities are particularly vulnerable to infection, the Court finds that Defendant has demonstrated an extraordinary and compelling reason for compassionate release.")

United States v. Gonzales, No. 2:18-CR-0232-TOR-15, 2020 WL 1536155 (Ed Wash. Mar. 31, 2020) ("Defendant is the most susceptible to the devastating effects of COVID-19. She is in the most susceptible age category (over 60 years of age) and her COPD and emphysema make her particularly vulnerable.... The Court was aware of Defendant’s underlying medical condition and took that into consideration at the time of sentencing. In normal times, Defendant’s condition would be manageable. These are not normal times, however.")

I am fairly confident that this list does not represent all, and I hope it does not even capture most, of the sentence reductions granted by federal district courts in the past week or so.  Readers are encouraged to use the comments or send me emails to supplement this list as new ruling are handed down or become available.

Prior recent related posts:

UPDATE: I am pleased to report that I just received from a helpful reader a copy of a new 24-page opinion handed down just today in United States v. Rodriguez, No. 2:03-cr-00271-AB-1 (ED Pa. Apr. 1, 2020) (available for download below). The start of this new opinion highlights why it is a must-read for anyone working on 3582(c)(1)(A) motions these days:

We are in the midst of an unprecedented pandemic. COVID-19 has paralyzed the entire world. The disease has spread exponentially, shutting down schools, jobs, professional sports seasons, and life as we know it. It may kill 200,000 Americans and infect millions more. At this point, there is no approved cure, treatment, or vaccine to prevent it. People with pre- existing medical conditions — like petitioner Jeremy Rodriguez — face a particularly high risk of dying or suffering severe health effects should they contract the disease.

Mr. Rodriguez is an inmate at the federal detention center in Elkton, Ohio.  He is in year seventeen of a twenty-year, mandatory-minimum sentence for drug distribution and unlawful firearm possession, and is one year away from becoming eligible for home confinement. Mr. Rodriguez has diabetes, high blood pressure, and liver abnormalities. He has shown significant rehabilitation in prison, earning his GED and bettering himself with numerous classes. He moves for a reduction of his prison sentence and immediate release under the “compassionate release” statute, 18 U.S.C. § 3582(c)(1)(A).  He argues that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. §3582(c)(1)(A)(i).

For Mr. Rodriguez, nothing could be more extraordinary and compelling than this pandemic. Early research shows that diabetes patients, like Mr. Rodriguez, have mortality rates that are more than twice as high as overall mortality rates.  One recent report revealed: “Among 784 patients with diabetes, half were hospitalized, including 148 (18.8%) in intensive care.  That compares with 2.2% of those with no underlying conditions needing ICU treatment.”

These statistics — which focus on the non-prison population — become even more concerning when considered in the prison context. Prisons are tinderboxes for infectious disease. The question whether the government can protect inmates from COVID-19 is being answered every day, as outbreaks appear in new facilities. Two inmates have already tested positive for COVID-19 in the federal detention center in Elkton — the place of Rodriguez’s incarceration.  After examining the law, holding oral argument, and evaluating all the evidence that has been presented, I reach the inescapable conclusion that Mr. Rodriguez must be granted “compassionate release.”

Download Rodriguez Memorandum

ANOTHER UPDATE: I am pleased to report that I just received from another helpful reader another new opinion handed down just today in United States v. Perez, No. 17 Cr. 513-3 (AT) (SDNY Apr. 1, 2020) (available for download below).  This opinion includes an important discussion of the need to waiver the exhaustion/30-day requirement for a motion for sentence reduction. Here are excerpts:

On March 26, 2020, Perez submitted to the BOP his application for a sentence modification. ECF No. 96 at 4. To date, the BOP has not acted on that request. The Court holds, however, that Perez’s exhaustion of the administrative process can be waived in light of the extraordinary threat posed—in his unique circumstances—by the COVID-19 pandemic. And the Court agrees with the parties that this threat also constitutes an extraordinary and compelling reason to reduce Perez’s sentence to time served. Accordingly, Perez’s motion is GRANTED....

Here, delaying release amounts to denying relief altogether. Perez has less than three weeks remaining on his sentence, and pursuing the administrative process would be a futile endeavor; he is unlikely to receive a final decision from the BOP, and certainly will not see 30 days lapse before his release date. Perez asks that his sentence be modified so that he can be released now, and not on April 17, 2020, because remaining incarcerated for even a few weeks increases the risk that he will contract COVID-19. He has had two surgeries while incarcerated, and continues to suffer severe side effects such as ongoing pain and persistent vision problems. ECF No. 96 at 4. As the Government concedes, Perez faces a “heightened risk of serious illness or death from COVID-19 due to his preexisting medical issues.” Gov’t Letter at 3. Requiring exhaustion, therefore, would be directly contrary to the purpose of identifying and releasing individuals whose circumstances are “extraordinary and compelling.”

Download Perez-Order-Compassionate-Release

April 1, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Wondering again about pace and number of federal sentencings after another Varsity Blues defendant gets imprisonment term

This AP article, headlined "Mother Sentenced to 7 Months in College Admissions Scam," reports on the high-profile federal sentencing that went forward in Boston by video conference yesterday.  Here are the basics:

A California woman was sentenced Tuesday to seven months in prison for paying bribes to rig her two daughters' college admissions exams and get one of them into Georgetown University as a fake tennis recruit.

In an unusual hearing held via videoconference due to the coronavirus pandemic, the judge rejected Elizabeth Henriquez's bid to avoid prison because of the public health crisis but is allowing her to remain free until at least June 30 in the hopes that the outbreak will have diminished by then. “I have every hope that the coronavirus crisis will abate in a matter of months and that Ms. Henriquez will be able to serve her sentence safely and rebuild her life,” U.S. District Judge Nathaniel Gorton said.

Henriquez and her husband were charged with paying $400,000 in bribes to get their oldest daughter into Georgetown as a bogus tennis recruit in 2016. They also paid bribes to have someone cheat on their daughters' college entrance exams, authorities said. In one instance, the purported proctor sat next to her daughter while she took a test and fed her the answers and then “gloated” with Henriquez and the teen about how they had cheated and gotten away with it, authorities said....

Her husband, Manuel Henriquez, is the founder and former CEO of Hercules Capital, a finance firm in Palo Alto, California. He is scheduled to be sentenced April 8.

Her lawyers had urged the judge to give her home confinement, citing a memo written by Attorney General William Barr who said some nonviolent inmates who are particularly at risk to the virus may be safer at home than behind bars....

Henriquez was sentenced via videoconference to keep people from gathering at the federal courthouse in Boston amid the pandemic. The judge talked to Henriquez and lawyers over video chat while news media and other members of the public listened on the phone. The Boston court and halls of justice across the country have delayed jury trials and moved to video and telephone hearings to keep the criminal justice system moving while people are hunkered in their homes.

Prosecutors had argued in court documents that she deserved more than two years behind bars. Gorton ordered Henriquez to begin serving her prison sentence on June 30 but said he would consider a request to push that back further if necessary.

As I mentioned here a few weeks ago, under normal circumstances 300 federal sentences are imposed every work day, 1500 federal sentences are imposed every work week, 6200 federal sentences are imposed every month in US courts nationwide.  Clearly, some number of federal sentencings are going forward, but I am so very eager to know how many.  I am hoping that before too long, the US Sentencing Commission or the Justice Department will try to provide some real-time data on the administration of federal criminal justice amidst the COVID crisis.

A few prior recent related posts:

April 1, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Offense Characteristics, White-collar sentencing, Who Sentences | 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)

Monday, March 30, 2020

Polls showing considerable public support for decarceration in response to COVID-19 crisis

I have seen two distinct reports of distinct polls showing public support for reducing incarceration levels in response to the coronavirus crisis:

From the ACLU, "ACLU Poll Shows Wide-Ranging Support For Releasing Vulnerable People From Jails And Prisons"

The American Civil Liberties Union released today a new poll from Bully Pulpit Interactive that demonstrates far-ranging, bipartisan support for releasing people from prisons and jails as part of the COVID-19 public health response. According to the poll:

  • 63 percent of registered voters support releasing people from jails and prisons to stop the spread of COVID-19
  • 72 percent of voters support clemency for elderly incarcerated people in the midst of this pandemic

From The Justice Collaborative, "Poll Shows Strong Cross-Ideological Support for Dramatically Reducing Jail and Prison Populations to Slow the Spread of Coronavirus."   Executive Summary from this report

  • Public health experts agree that jails and prisons pose special risks to the spread of the coronavirus.  These risks extend to the incarcerated, and to the correctional officers, medical professionals, and other people who work inside and visit jails and prisons. Moreover, because these workers and other vendors travel in and out of these facilities, this poses a heightened risk for the general public.

  • We found strong, cross-ideological support for the strategy of dramatically reducing jail and prison populations to slow the spread of the coronavirus. Sixty-six percent of likely voters, including 59% of those who are “very conservative,” said that elected officials should be considering measures to reduce overcrowding in prisons and jails as a response to coronavirus.

  • Fifty-six percent of voters support releasing people who are within six months of completing their sentence in order to reduce the risk of transmitting the coronavirus within jails and prisons. Support for this includes 52% of “very conservative” voters. 

  • Voters also support releasing especially at-risk populations. Fifty-eight percent of voters support releasing incarcerated people who are elderly; while 53% support releasing those whom the Center for Disease Control and Prevention (CDC) has classified as vulnerable, including those with asthma, cancer, heart disease, lung disease, and diabetes.

  • Voters also overwhelmingly support reducing unnecessary jail admissions: 63% support encouraging law enforcement to make use of summons or tickets as alternatives to jail where necessary.

March 30, 2020 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

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)

Justice Sotomayor gets in (last) shot complaining about the Supreme Court's unwillingness to take up challenges to old (vague?) guidelines

In this post a few months ago I flagged an article noting that in "at least 27 cases, Justices Sonia Sotomayor and Ruth Bader Ginsburg have gone out of their way to dissent from their colleagues’ rejection of petitions by 'career offenders'" arguing that the Johnson vagueness ruling made their (pre-Booker) guideline sentences unconstitutional. (The Justices in Beckles decided that post-Booker sentences were not constitutionally problematic because the guidelines were advisory.)

In this morning's SCOTUS order list, these two dissent in another such case, though it seems this may be the last time they will:

19-7755 PATRICK, SCOTT M. V. UNITED STATES

The petition for a writ of certiorari is denied. Justice Sotomayor, with whom Justice Ginsburg joins, dissenting from the denial of certiorari: I dissent for the reasons set out in Brown v. United States, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).  Recognizing that the Court has repeatedly declined to grant certiorari on this important issue — whether the right recognized in Johnson v. United States, 576 U. S. 591 (2015), applies to defendants sentenced under the mandatory Sentencing Guidelines — I will cease noting my dissent in future petitions presenting the question.  I hope, however, that the Court will at some point reconsider its reluctance to answer it.

Prior related posts:

March 30, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

Sunday, March 29, 2020

How about offering "diploma privilege" law degrees for current 3Ls who help practicing lawyers with compassionate release and clemency petitions?

The question in the title of this post is my reaction to the interesting and important debate over whether and how a bar exam should be required for current 3L law students in order for them to be able to become practicing lawyers.  This Law.com article, headlined "Fall Bar Exam Added, Fate of July Test Uncertain Amid COVID-19 Pandemic," details the issues and challenges:

Jurisdictions now have the option to offer the bar exam in the fall.  The National Conference of Bar Examiners, which develops the nationwide test, announced Friday that it will offer an alternate date for the all-important licensing exam for jurisdictions that cannot, or choose not to, move forward with the July administration due to the COVID-19 pandemic.

The national conference has not yet canceled the July exam.  It will decide the fate of the July test no later than May 5, with the idea that it will have a better idea of whether enough jurisdictions want to move ahead with the test and whether public gathering restrictions will even make it possible....  If some jurisdictions do offer the bar exam in July, the national conference will prepare a different test for the fall — the date of which has not yet been finalized, conference president Judith Gundersen said Friday.

Moving to a fall bar exam would delay admission for test takers by about two months, the national conference noted, but that’s preferable to waiting until the February 2021 exam.  “There are no simple answers and no great solutions in this situation,” read the national conference’s statement. “We are trying to provide some certainty in truly uncertain times, while maintaining the integrity of the bar admissions process for the benefit and protection of the public.”

Any postponement of the bar exam may not sit well with graduating law students, some of whom have begun to organize and lobby their jurisdictions for a one-time emergency diploma privilege that would enable them to practice without taking and passing the bar.

Brian Heckmann, a third-year student at Florida International University College of Law, said simply postponing the bar exam until the fall is short-sighted. “Given the nature of this pandemic, there is no guarantee we won’t be in the same position come the end of August that we are in now,” he said Friday. “What would happen then? Keep kicking the can down the road and delay the ability for graduates to practice indefinitely?” Delaying the admission of new lawyers would also exacerbate the nation’s growing unemployment problem and force new law grads to take jobs for which they are overqualified while they await the opportunity to take the bar, he added.

Bar examiners and court systems have come under increasing pressure this week to make swift decisions about the fate of the bar exam, in part to help alleviate some of the stress and uncertainty graduating law students feel about the future and their professional prospects.  A widely read paper released March 23 by 11 legal academics and education policy experts [available here] argues that jurisdictions should act fast in adopting alternatives to the July bar, given that it seems increasingly unlikely that it will be safe to gather so many people together at that time.  The paper argues against postponing the exam, given that the COVID-19 pandemic may stretch on in waves and that predicting when it will be safe to convene in large numbers is difficult....

Meanwhile, law students are coalescing around the diploma privilege concept.  More than 1,000 law students this week signed a letter to the New York State Bar Association’s Task Force on the New York Bar Examination asking it to quickly adopt a diploma privilege for 2020 graduates of American Bar Association-accredited law schools, arguing that it is the fairest way to handle the unprecedented situation while also ensuring new lawyers come online to address access to justice issues.

Law students in Florida are also pushing for a diploma privilege. By Friday morning, nearly 2,000 had signed a petition calling on the Florida Board of Bar Examiners to extend an emergency diploma privilege to 2020 graduates of ABA-accredited law schools who had registered for the July test.  “Such privileges could easily come with stipulations that ensure the competence of those admitted to the practice of law so as to protect the public from unqualified lawyers,” the petition reads.

I have never been a big fan of the bar exam, so I approach this debate with an affinity for finding other ways to license lawyers.  And, as the title of this post is meant to suggest, at this time of national (and international) public health emergencies, shouldn't we be urging young lawyers-in-training to invest their time in activities other than studying for a high-pressure, mega-test?

Unsurprisingly, I think it would be great to channel junior lawyer time into mass clemency and compassionate release efforts. But there are, of course, so many other legal needs being created and enhanced by the COVID pandemic.  I would hope bar official might appreciate that encouraging junior lawyers to pursue legal community service, rather than focus on bar prep, could help encourage a group of new lawyers to have the right kind of professional commitments and values from the very start of their careers.

March 29, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (2)

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)

"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)

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)

"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)

Tuesday, March 24, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fast Facts

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

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

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

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

Monday, March 23, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 23, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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)

Friday, March 20, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Wednesday, March 18, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, March 17, 2020

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)

"Appeals Court Delays Texas Execution Due To Coronavirus Outbreak"

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

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

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

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

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

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

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

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

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

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

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

Monday, March 16, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior coronavirus posts:

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

Thursday, March 12, 2020

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

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

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

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

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

Wednesday, March 11, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, March 10, 2020

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

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

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

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

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

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

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

A few prior related posts:

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

"Inmate Constitutional Claims and the Scienter Requirement"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Monday, March 09, 2020

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

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

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

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

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

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

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

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

Sunday, March 08, 2020

Making the case for an improved and independent federal clemency process

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

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

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

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

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

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