We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DON’T GIVE UP ON COMPASSIONATE RELEASE

“A triumphant President Joe Biden all but announced an end to the pandemic in the USA on Sunday… declared that the U.S. had achieved “independence” from the coronavirus…”

Really? Is COVID over? Well, that quote would suggest it, except that Biden said that about nine months ago. A month after the Prez did his victory dance, COVID Delta blasted through FCI Texarkana, followed by the rest of the BOP. And that was only a prelude to Omicron, that at one point had 9,500 inmates sick at the same time.

As of last week, a surge in the new COVID variant BA.2 in Western Europe had experts and health authorities on alert for another wave of the pandemic in the USA. BA.2, even more contagious than the original strain, BA.1, is fueling the outbreak overseas, and will be here soon, experts say.  Last Sunday’s Times said, “Another COVID surge may be coming. Are we ready for it?”

At the same time, the number of prisoners in Bureau of Prisons custody increased by about 1,150 in the past month alone. Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog that he

assumes this new data reflects some ‘return to normal’ operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and many fewer COVID-related releases) producing this significant one-month federal prison population growth. But, whatever the particulars, I will not forget that candidate Joe Biden promised to ‘take bold action to reduce our prison population” and to “broadly use his clemency power for certain non-violent and drug crimes.‘ Fourteen months into his administration, I am unaware of any bold action taken by Prez Biden and he has still yet to use his clemency power a single time, let alone broadly.

Prisoner numbers are the only thing going up. About 6,200 BOP employees left the agency in the last two years, which works out to almost nine people a day. 8.7 employees departing every day during that time period. The BOP refuses to give precise current numbers, but Insider magazine reported that from July 2021 to March 2022, it hired fewer than 2,000 replacements.

A BOP employee survey last year found that since the pandemic began, the “majority of respondents reported feeling increased stress or anxiety at work and being asked to perform tasks outside their normal duties.” Nearly one in three respondents who answered that they were stressed from the job reported that they have considered leaving the BOP, according to the survey.

Last week, the Dept of Justice released the promised memorandum ordering U.S. Attorneys not to require defendants to waive their right to file compassionate release motions as a condition of getting a plea deal. Notably, the DOJ told U.S. Attorneys that “if a defendant has already entered a plea and his or her plea agreement included a waiver provision of the type just described, prosecutors should decline to enforce the waiver. “

All this means compassionate release probably is far from over, both because of more COVID and as a means of addressing overcrowding. In a lot of places, it has played a role in correcting harsh sentences that could not be imposed today.

But not everywhere. The 11th Circuit is infamous for refusing judges the discretion to use sentences that could not be imposed today as a reason for compassionate release. Last week, the 8th Circuit made clear it had joined the 11th.

Antonio Taylor was convicted of nine offenses, three of which were 18 USC § 924(c) violations. The § 924(c) law at the time required consecutive prisons terms of 5, 25, and 25 years for the violations years. Tony got sentenced to 60 years (720 months).

The First Step Act changed the law so that the harsh consecutive sentences could not be imposed. If James had been sentenced after First Step passed, he would have faced 18 years, not 60. Tony filed for compassionate release in 2020, arguing the harshness and unfairness of his sentence. Similar arguments have won in a number of other circuits, starting with the 2nd Circuit in September 2020’s Brooker decision.

The Circuit, following its February decision in United States v. Crandell, held that “that a non-retroactive change in law, whether offered alone or in combination with other factors, cannot contribute to a finding of ‘extraordinary and compelling reasons’ for a reduction in sentence under § 3582(c)(1)(A).”

As it stands now, a nonretroactive change in sentencing law can win a prisoner a sentencing reduction if he or she was sentenced in federal court in any of nine circuits. As for the other three, the inmate is out of luck. This cries for Supreme Court resolution.

Bloomberg, Biden Declares Success in Beating Pandemic in July 4 Speech (July 4, 2021)

Washington Post, A covid surge in Western Europe has US bracing for another wave (March 16, 2022)

Sentencing Law and Policy, Federal prison population, now at 154,194, has grown by well over 1100 persons in a short month (March 18, 2022)

Business Insider, Federal prison working conditions are getting worse despite Biden’s promise to improve conditions, staffers say (March 18, 2022)

DOJ, Department Policy on Compassionate Release Waivers in Plea Agreements (March 11, 2022)

United States v. Taylor, Case No 21-1627 (8th Cir., March 18, 2022)

– Thomas L. Root