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Risk of COVID Interrupts Death For A Bit – Update for January 14, 2021

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

HOW BAD IS COVID?

Despite the 11th-hour Supreme Court petitions, the celebrity protests, the scathing editorials, nothing has stopped the Trump Administration’s headlong rush to execute federal inmates. Thirteen have been executed this century, 10 of them in the last six months.

Then came COVID.

President-elect Joe Biden has promised to halt the lethal injections, but three more were scheduled to die this week until last Tuesday, when SD Indiana Judge Jane Magnus-Stinson ruled that the federal government’s poor management of the previous 10 executions “has created a substantial risk” that other inmates and staff may contract the virus.

The judge got promptly overruled by higher-ups, so the death march continued with killing Lisa Montgomery two days ago. The government plans on doing in two more inmates between today and next Wednesday at noon, when the new President stops it.

executionwoman21011For the BOP to be able to carry out the remaining executions, the judge ruled, it has to create a contact log that tracks staff who come into close contact with others during the execution process. For 14 days after the execution, execution staff have to take daily rapid COVID-19 tests, and anyone who produces a positive test must go through contact tracing. “The defendants have touted the availability of testing but have chosen not to utilize rapid testing of staff and visitors who enter prison grounds,” the judge wrote. “Most disconcerting, the defendants represented to the Court that contact tracing would occur after any BOP staff member involved in the executions tested positive. This has not been the case—and the Court finds the failure was not by accident but by design.”

COVID might have been stymied at stopping the intentional killing, but it remains adept at bringing death to inmates. The number of dead inmates hit 198 last Friday. Inmate COVID cases fell 25% between Dec 31 and last Wednesday, but then jumped back up to 6,227 as of Friday. They started falling again (as the BOP continues to declare anyone who tested positive 10 days ago to be cured), settling at 5,043 yesterday.

Ominously, BOP staff cases continue to climb. The number crossed  2,000 for the first time ever last week, and stood at 2,107 yesterday. If the staff keeps getting sick, more inmates invariably will contract it as well.

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As of yesterday, FCI Ft Dix reported 461 cases, with Lexington (444 cases), Butner Medium II (208 cases) and nine other facilities with more than 100 cases each, with 19 more having 50 or more cases.

The BOP’s vaccine program is not going all that well. Government Executive reported last week that the Bureau “has received just 12,800 vaccine doses, but has already used 57% of those.” The BOP has distributed the vaccine to only 31 of its roughly 150 facilities. COs and health care workers are receiving the vaccine in the BOP’s first phase of distribution, although some inmates have gotten vaccines when stocks remained after all employees who elected to get vaccinated had been served. Only about “half of staff at each of the 31 facilities receiving vaccines have so far been vaccinated, according to Justin Long, a bureau spokesman. Inmates will begin receiving doses when more become available under a plan developed by the Trump administration’s Operation Warp Speed, Long said.”

Meanwhile, a national debate is brewing over whether inmates should be inoculated before the general population. Health officials say inoculating prison employees without giving the shot to prisoners won’t help stop the spread. “It doesn’t make sense to vaccinate workers but not vaccinate the people they are charged with protecting,” said Wanda Bertram, a spokeswoman for the Prison Policy Initiative, which is advocating that staff and inmates receive the vaccine.

nothing170125But a typical reaction came from Colorado Gov. Jared Polis, a Democrat, who said last month, “There’s no way it’s going to go to prisoners before it goes to people who haven’t committed any crime.”

Meanwhile, the Minnesota ACLU accused FCI Waseca staff of showing deliberate indifference to inmates during a massive COVID-19 outbreak in a hearing last Wednesday. The ACLU represents a plaintiff class of inmates seeking a temporary injunction to release many Waseca inmates to home confinement to curb the spread of the outbreak.

ACLU lawyer Clare Diegel called it a “drastic remedy” but necessary because of “terrifying” conditions at the prison. But Erin Secord, an AUSA representing the BOP, insisted the prison had taken numerous steps to protect inmates, the infections had been quelled and the court lacked jurisdiction to release prisoners. She said the suit should be dismissed.

control200511The president of a union representing employees at FCI Williamsburg in South Carolina last week blamed prison leadership for decisions that led to skyrocketing COVID-19 cases there. ”They made some changes on the process of what we were doing… that allowed COVID to actually walk into the institution,” American Federation of Government Employees’ Local 525 President Stephen Pinckney said. “From there, it spread like wildfire once it got in.”

Pinckney alleged that the process of screening people entering the complex to determine whether they had potential symptoms of COVID-19 symptoms was shifted from outside the facility to inside in early December. “I really would like to see our executive staff removed for one thing because they are more concerned right now on the financial side of the institution that they are about the health and wellbeing of staff there,” Pinckney said.

Indianapolis Star, Terre Haute executions paused by judge until COVID-19 measures are instituted (January 8, 2021)

Government Executive, Federal Agencies Have Distributed 200K Coronavirus Vaccine Doses So Far (January 4, 2021)

Wall Street Journal, As Covid-19 Surges in Jails, Guards Want Vaccine Early (January 4, 2021)

WCSC-TV, Charleston, South Carolina, Prison workers union calls for action on COVID-19 outbreak at FCI Williamsburg (January 8, 2021)

– Thomas L. Root

Clemency Hopes Fade After Trump Capitol Riot Beatdown – Update for January 12, 2021

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

DID LAST WEEK’S TRUMP DEBACLE KILL HOPES OF CLEMENCY PUSH?

That the insurrection on Capitol Hill is leading to an unprecedented second impeachment for President Trump has dimmed some hopes for a lot of clemency activity before January 20. Others – including Ohio State University law professor Doug Berman (writing in his Sentencing Policy and Law blog) – believed as of late last week that Trump is still “planning to issue more clemency grants before he loses the power to do so.”

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But things are changing quickly in D.C. Last night, ABC News reported that sources told it that

White House Counsel Pat Cipollone advised the president that he could face legal jeopardy for encouraging his supporters to storm the Capitol building, according to sources familiar with their discussions.

After these conversations, sources say the president grew angrier, and the entire pardon process has been described as “on hold” — meaning others who have been lobbying the president for pardons, including his personal attorney Rudy Giuliani, may not receive one.

ABC correspondent Jonathan Karl told ABC anchor David Muir that the president has been warned that self-pardon “would be seen as an admission that he did something wrong that he would need to be pardoned for. The president is angry, he has not taken that well, and I am told that he is now saying that he doesn’t want to see pardons for anybody. So the attitude seems to be: ‘If I can’t get a pardon, then nobody else should get one, either’.”

Bloomberg reported last week that Trump had prepared a sweeping list of people he’d hoped to pardon in the final days of his administration, including senior White House “people familiar with the matter,” Bloomberg said Trump intends to announce the pardons on Jan 19 – his final full day in office – and the list is currently being vetted by the White House counsel’s office. Besides Trump’s kids, in-laws and immediate staff, sources report, he is considering pardons for the husband of a Fox News personality, and rappers Lil Wayne and Kodak Black.

anderson210112Trump’s most recent contretemps have not slowed down the lobbying for high-profile pardons. Former Baywatch star Pamela Anderson, a thoughtful and incisive commentator on world affairs, is pushing to have Wikileaks founder and accused rapist Julian Assange pardoned, and conservative Florida congressman Matt Gaetz (who most recently has alleged that Antifa members in MAGA hats, not Trump patriots, stormed the Capitol) has urged that Edward Snowden should be pardoned as well.

Berman wrote, “I am hopeful, but not really optimistic, that there will be some good number of final Trumpian clemency grants for persons who are not well-connected or famous.” But now it may develop that even the Kushners, Lil Waynes and Assanges of the world may still be waiting outside the White House, MAGA hats in hand, as Marine One carries President Trump away for the last time.

trumptrain210112Even if a few of then favored get pardoned in the next 195 hours, the stats suggest there is little reason for the average prisoner to hold out optimism for Trump clemency. A recent study showed that only seven of the 94 Trump clemency grants over his term came on recommendation from the pardon attorney. Like it or not, the only way a clemency petition from someone who is not connected gets to the White House is through the Dept of Justice, not that a system leaving the prosecutor in charge of the clemency gateway is such a favored idea, either.

Berman wrote, “I hope Prez-elect Biden comes into office understanding that the best way to restore faith in the pardon power could be by using it right away to advance justice and mercy rather than parochial personal privilege.”

Lawfare, Trump’s Circumvention of the Justice Department Clemency Process (December 29, 2021)

Sentencing Law and Policy, Gearing up for Prez Trump’s coming final round of clemency grants (January 7, 2021)

ABC News, Trump warned about potential civil liability, as some aides clear out desks (January 11, 2021)

The Week, Trump is reportedly so angry aides are warning him against a self-pardon, he’s put all pardons ‘on hold’ (January 12, 2021)

Bloomberg, Trump Prepares Pardon List for Aides and Family, and Maybe Himself (January 7, 2021)

– Thomas L. Root

Compassionate Release Only Breaks Even in Two Appeals Decisions Last Week – Update for January 11, 2021

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

A TALE OF TWO COVID DECISIONS

Two circuits handed down decisions on COVID compassionate release last week. Like Charles Dickens’ “best of times, worst of times,” the rulings represented the best in appellate decision-making and the worst.

tutorial210111The Tutorial: Section 3582 of Title 18, United States Code, governs the imposition of sentences, including regulating the limited circumstances under which a sentence can be modified. Once such circumstance is found in § 3582(c)(1)(A)(i), which provides that a court may reduce a sentence when it finds “extraordinary and compelling” reasons to do so, and concludes that such a reduction is consistent with the factors to be considered when a sentence is imposed (found in 18 USC § 3553(a), and generally called “3553(a) factors“).

Since the advent of COVID-19, courts have granted sentence reduction motions (also called “compassionate release” motions, the same way all tissues are called “Kleenex”) in cases where the prisoner has health conditions that increase his or her susceptibility to COVID-19. The approval rate has been something like 19% of all compassionate release motions, but in a criminal justice system in which 97 out of 100 people charged with a federal crime get convicted, the compassionate release odds seem to a lot of inmates to be a sure thing.

One fly in the ointment has been a § 3582(c)(1)(A)(i) requirement that a compassionate release comply with “applicable” Sentencing Commission policies. The only Sentencing Commission policy has not been updated since before the First Step Act (which is what have inmates the right to file their own compassionate release motions), and the policy contains limitations clearly at odds with the intent of Congress in opening up compassionate release to inmates. As a result, four courts of appeal so far have ruled that district courts need pay no mind to the “applicable policies” language of § 3582(c)(1)(A)(i), at least until the Sentencing Commission gets around to changing the policy.

Now for the two decisions of the week:

best210111The Best: A district court found Lisa Elias’s hypertension (high blood pressure) alone was not an extraordinary and compelling reason to grant a sentence reduction. The 6th Circuit last week upheld the denial, underscoring the broad discretion district judges have in deciding compassionate release cases with thoroughness and careful reasoning.

Noting that three other circuits now agreed with its Jones decision that Guideline 1B1.13 does not limit courts in deciding prisoner-brought compassionate release motions, the 6th said “there has emerged a newfound consensus among the courts, and the government provides no compelling reason for us to disturb the consensus of our sister Circuits. Therefore, we hold that 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates, and so district courts need not consider it when ruling on those motions. Further… district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others… And, in the absence of an applicable policy statement for inmate-filed compassionate-release motions, district courts have discretion to define ‘extraordinary and compelling”’ on their own initiative.”

worst210111Now the worst: Chadwick Townsend sought compassionate release because, he claimed, his hypertension, high cholesterol and a 10-year old stroke put him at higher risk from COVID-19. His district judge held Chad’s reasons were not extraordinary and compelling, and Tom appealed.

The 5th Circuit turned him down. It held that while Chad’s “chronic illnesses place him at a higher risk of severe symptoms, should he contract COVID… it is uncertain that he is at a significantly higher risk than is the general inmate population. In fact, nearly half of the adult population in the United States suffers from hypertension. And roughly 12% of Americans suffer from high cholesterol. Thus, we cannot say that either of those conditions makes Thompson’s case “extraordinary.” Unfortunately, both are commonplace.”

The Circuit relied on Guideline 1B1.13 without observing that four other circuits have held it does not apply to inmate-filed compassionate release motions. Acting as though it had just emerged from a cave where it spent the last year, the panel noted with some surprise and puzzlement, “To be sure, courts around the country, in some exceptional cases, have granted compassionate release where the defendant has demonstrated an increased risk of serious illness if he or she were to contract COVID. Even where they have denied release, some courts have assumed that the pandemic, combined with underlying conditions, might be an extraordinary and compelling reason for compassionate release. But that is certainly not a unanimous approach to every high-risk inmate with preexisting conditions seeking compassionate release.”

The Circuit seemed to conflate “extraordinary and compelling” reasons with the separate compassionate release step of considering the 18 USC § 3553(a) sentencing factors: “The courts that granted compassionate release on those bases largely have done so for defendants who had already served the lion’s share of their sentences and presented multiple, severe, health concerns. Even where the court denied the motion on grounds other than the lack of ‘extraordinary and compelling reasons,’ the defendants’ medical conditions oftentimes were more serious than are Thompson’s. Fear of COVID doesn’t automatically entitle a prisoner to release. Tom can point to no case in which a court, on account of the pandemic, has granted compassionate release to an otherwise healthy defendant with two, well-controlled, chronic medical conditions and who had completed less than half of his sentence.”

Sentencing Law and Policy, Sixth Circuit panel reiterates “district courts have discretion to define ‘extraordinary and compelling’ on their own initiative” for 3582(c)(1)(A) motions (January 7, 2021)

United States v. Elias, Case No. 20-3654, 2021 U.S. App. LEXIS 251 (6th Cir. January 6, 2021)

United States v. Thompson, Case No. 20-40381, 2021 U.S. App. LEXIS 194 (5th Cir. January 5, 2021)

– Thomas L. Root

Presidential Clemency May Be Only Personal for Trump – Update for January 8, 2021

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

CLEMENCY – WWJD (WHAT WILL JOE DO?)

The silliness has already started about incoming President Joe Biden. Example: I received one report last week that the new President intended to pardon one inmate a day for his first 100 days in office.

Any truth to this? Not a bit.

fuhrerbunker210108We had expected an avalanche of clemencies from the Trump Administration in its remaining 12 days, although with the Oval Office sounding more like the Fuhrerbunker. What will happen over the final 300 hours or so of the Trump Administration is anyone’s guess. Late reports say that the President is much more focused on pardoning himself than he is on anyone else. Bloomberg reported yesterday that Trump has a very short list of preemptive pardons, including his family, closer staff, two rappers, Kodak Black and Lil’ Wayne, and the ex-husband of a Fox News host.

No one should be encouraged by President Trump’s track record so far. Harvard professor Jack Goldsmith said Trump “is stingy” with his pardon power. A Pew Research Center study showed that through November 23, Trump had granted clemency to less than 0.5% of the 14,000 people who petitioned him for it through the end of the 2020 fiscal year, according to the study. As The New York Times observed, “Many who have applied have little chance of clemency under any circumstances. But those with sentences they contend are excessive and people who have shown remorse and turned their lives around in prison are hoping for mercy.”

Almost all of the people to whom Trump has granted clemency have had a personal or political connection to the White House, and it appears that only seven were recommended by the Dept of Justice Pardon Attorney, Goldsmith said. DOJ rules normally requires a person applying for clemency to wait at least five years after conviction or release from confinement, a rule that was not applied many of Trump’s grants.

clemency170206Not that skipping the Pardon Attorney’s office is necessarily a bad thing. Criminal justice reform advocates believe Trump is right to sideline the DOJ from clemency decisions. But rather than control the process for political ends, advocates say, Biden should use it to help non-violent drug offenders with questionable convictions or harsh sentences. Relying on the DOJ’s Pardon Attorney to review and make recommendations on clemency requests, they say, is bureaucratic and puts those decisions in the hands of the department that put the offenders behind bars.

Biden’s criminal justice plan says he will “broadly use his clemency power for certain non-violent and drug crimes.” In addition to removing the sole oversight of the Office of the Pardon Attorney, Biden could improve the process by creating a permanent independent advisory panel that includes criminal justice reform activists, defense attorneys and pardoned convicted offenders, alongside federal prosecutors, supporters say.

“It can be improved by not depending on the same office that fought for an individual’s conviction and draconian sentence to look back and say we need to provide relief,” one advocate said. “There is a conflict right there.”

clemencyjack161229Former Pardon Attorney Margaret Love says that the biggest problem with clemency is that too much is asked of it. There should be more statutory relief valves, like sentence reduction, to reduce sentences, as well as a means of regaining full citizenship rights for people who have been released. She argued last week, “President Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can presidential pardon play the constructive role that the Framers intended.”

CNN, Trump asking aides and lawyers about self-pardon power (January 7, 2021)

Bloomberg, Trump Prepares Pardon List for Aides and Family, and Maybe Himself (January 7, 2021)

The New York Times, Outside Trump’s Inner Circle, Odds Are Long for Getting Clemency (December 28, 2020)

Bloomberg, Biden gets unlikely advice on pardons: Copy Trump, sideline DOJ (December 31, 2020)

Lawfare, Are Trump’s Pardons a Blessing in Disguise? (December 29, 2020)

– Thomas L. Root

‘How Are We Doing?’ Attorney General Asks (Rhetorically) – Update for January 5, 2021

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

FIRST STEP REPORT ISSUED

The First Step Act required that starting in 2020, the Attorney General generate an annual report on the Bureau of Prisons’ implementation of the various provisions of the law. The AG issued the report two weeks ago, which reads more like a hagiography of First Step compliance than a dispassionate recitation of how rocky the road to First Step implementation has been.

awesome210105Example: The AG says the BOP and Department of Justice “also implemented and responded to changes the FSA made involving retroactive application of the Fair Sentencing Act, compassionate release, and good conduct time.” If “implemented and responded to changes” means fighting compassionate release (10,929 out of 10,940 requests to the BOP for compassionate release denied) and Fair Sentencing Act reduction motions hammer-and-tong, DOJ and BOP have surely overperformed.

Surprisingly (or maybe not, given the political roar coming from Washington over the last two months), the First Step Report seems to have landed silently. Yet there are some interesting gold nuggets in the 59 pages of dross. I’m still reading it, and I’ll report more on it next week, but a few stats have jumped out already:

•      70% of all BOP inmates are designated to facilities within 500 miles of their release residences (but the Report does not compare this to the stats prior to passage of First Step);

•    the BOP has transferred over 19,000 people to home confinement since last March;

•         in 2020, one out of every four BOP inmates did not get any halfway house or home confinement prior to release

The most interesting tables I have seen so far are the recidivism tables. The Report found recidivism among people released under the First Step Act to be 11.3%, much less than the one-third or higher numbers usually cited. One curious finding: people who served less than 5 years had a recidivism rate of 10.9%; those serving between 5 and 10 years, 12.6%; those serving between 10 and 15 years, 13.1%; and those serving over 15 years, 7.8%.

tableB210105 copy

These stats present a strong argument about the deterrence value (or lack thereof) of sentences, a point which should be part of any 18 USC § 3553(a) analysis in a compassionate release or Fair Sentencing Act determination.

Dept of Justice, The Attorney General’s First Step Act Section 3634 Annual Report (December 21, 2020)

– Thomas L. Root

Where Did The HEROES Go? (And Other Stories That Puzzle Inmates) – Update for January 4, 2021

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

DEAD HEROES

deadheroes210104Last May, the House of Representatives passed the HEROES Act, intended to be the second coronavirus stimulus. The bill, which included in its $3 trillion giveaway a number of criminal justice changes (like letting eligible elderly offenders get home confinement after two-thirds of their good-time adjusted sentences, instead of gross sentences), was promptly denounced by Republicans appalled at its price tag and then ignored by the Senate.

Eight months later, I am still getting questions about it, mostly from people who may have been sleeping in the back of the classroom during high school government class.

A bill passed by the House must then be passed by the Senate and then signed by the President in order to become law. In the case of HEROES, the Senate refused to consider the bill. Rather, the Senate passed the HEALS Act in response to HEROES, a bill that was then immediately not considered by the House.

sleep210104What finally happened last month was that the Senate and House worked out a compromise bill that was neither HEROES nor HEALS. The compromise bill included no sentencing provisions at all, a fact that seems not to detain prisoners at all. One inmate wrote me last weekend, asking me to confirm the rumor that § 205 of the stimulus bill gave elderly offenders the home confinement adjustment they sought. Alas, § 205 is entitled “Pipeline Safety Management Systems,” a provision of interest to elderly offenders only if they’re in the natural gas transmission business.

Another inmate asked me whether HEROES might still pass in January or February. Remember this from high school civics, boys and girls: every Congress lasts two years, and ends on January 3. The 116th Congress ended yesterday, and the 117th Congress starts its two-year run today. When a two-year Congress ends, any bill not passed by both the House and Senate is dead.

That means the sentencing changes contained in HEROES will have to be introduced all over in a new bill.

caresbear210104Someone else wondered how long the BOP’s home confinement authority will last under the CARES Act. There are three answers to that. First, the BOP’s authority lasts until 30 days after the COVID-19 national emergency declared by Trump ends. The National Emergencies Act requires any emergency to end one year after it is declared, unless extended by the President. Since some national emergencies (such as with respect to Iranian assets) have continued for four decades. The current COVID emergency ends in March, but there is little doubt Biden will extend it.

Second, the BOP’s authority only lasts as long as the Attorney General’s determination that the emergency conditions are “materially affect[ing] the functioning of the BOP.” Attorney General Barr made that determination last April, but he or the new AG could withdraw the finding at any time.

Finally, the CARES Act lets the BOP Director put prisoners in home confinement “as the Director determines appropriate.” This provision delegates virtually unreviewable power to the BOP. If the Director decided tomorrow that he had sent all the people he needed to send, he could pull the plug.

A year ago, the BOP population stood at 175,858 inmates. As of last week, the number had fallen 13.5% to 152,184. That’s a 31% drop from six years ago.

No one knows when the BOP will no longer place prisoners in home confinement. But we’re much closer to the end than we are to the beginning.

HEROES Act, H.R. 6800 (May 15, 2020)

HEALS Act, S.4318 et al. (July 27, 2020)

Section 205, Consolidated Appropriations Act, 2021 (December 27, 2020)

Section 12003(b)(2), CARES Act, H.R. 748 (March 28, 2020)

Sentencing Law and Policy, Federal prison population closes out 2020 at new modern low of 152,184 according to BOP (December 31, 2020)

– Thomas L. Root

Light at the End of the Tunnel is an Oncoming COVID Train – Update for December 31, 2020

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

STILL LOOKING FOR THE PEAK?

Last week, I reported that the Bureau of Prisons’ numbers had dropped 25% from the week before, suggesting that maybe the latest BOP COVID spike had peaked, and recovery was at hand.

BOPCOVID201230

No such luck. As of last Monday, the system’s active cases had jumped 12% from a week earlier, to 7,690 active inmate cases and 1,616 sick staff, COVID in 127 BOP facilities and 188 dead inmates. The number of sick inmates fell yesterday to 6,949, still 11% higher than two weeks ago. As of last night, BOP has tested 64% of all inmates at least once, with a worrisome positivity rate of 40%.

lighttunnel201231Last week, I noted that despite official pronouncements that only BOP staff were getting COVID-19 vaccine, I had received inmate reports that some prisoners had been vaccinated at two Texas facilities and one in North Carolina. Last Tuesday, the BOP told Associated Press that the vaccine had been delivered to four facilities that had been among some of the hardest hit during the pandemic, including FCC Butner. AP quoted a BOP spokesman as saying that while it continued to plan to offer vaccines to full-time staff, “at this time, we can confirm high risk inmates in a few of the BOP facilities in different regions of the country have received the vaccine.” AP noted the BOP did not say how many inmates had been vaccinated, how the inmates were selected, or how many doses of the vaccine the agency had received.

The agency told the AP about half of the staff at each of the four facilities that received the vaccine had been inoculated. The balance was offered to inmates.

COVIDvaccine201221Forbes magazine reported last Monday that “word came from someone who is an inmate in an institution in the mid-Atlantic US that they are on a list to receive the vaccination at the first of the year. The vaccinations represent the first step in curbing the spread of COVID-19 in prisons. The roll-out of the vaccines to inmates will certainly cause a disruption in the number of compassionate release cases and the release of inmates under the CARES Act.” Forbes is a usually reliable publication, but the report – from a single unidentified inmate – is pretty thinly sourced.

As of last night, Fort Dix, Terre Haute, Safford, Pekin, Lexington, Schuykill and Atwater were all reporting more than 200 inmate COVID-19 cases. Another 14 facilities had more than 100 inmate cases.

Every inmate death is concerning, but three last week were especially troubling. An inmate at Talladega died of COVID-19 without ever being diagnosed with the disease or presenting symptoms. A Lompoc inmate had COVID in May and was declared “recovered,” but was hospitalized in August with COVID. He remained there until dying December 15. In a third case, a Memphis inmate with no prior medical conditions whatsoever fell ill on December 2, was hospitalized 10 days later, and died December 19.

Finally, a most unusual compassionate release: After a mix-up by the BOP, a Guam federal judge granted Jesse Cruz’s sentence reduction motion and ordered his immediate release.

Jesse had health issues including post-traumatic stress disorder, degenerative spinal disc disorder, sciatica, sleep apnea and other issues, according to US District Court Judge Frances Tydingco-Gatewood.

release161117There was also an “extremely rare and unique situation” in Jesse’s case: the BOP miscalculated his release date, releasing him from FCI Sheridan on October 14, although his home confinement was not supposed to start until next February. The BOP didn’t give Jesse any medication when he was sent to Guam, even though the FCI Sheridan doctor had ordered he get his medication upon release.

Upon arriving on Guam, Jesse had to quarantine at a government facility. While Jesse was in quarantine, the BOP realized its mistake and had Cruz arrested when he left the quarantine facility.

During a hearing last Wednesday, the Judge learned Jesse hasn’t received any medication at all while incarcerated on Guam, even after Jesse and his wife presented numerous requests for medication and a CPAP machine to the detention facility and the U.S. Marshals. While Jesse’s health conditions would not normally justify compassionate release, the Judge ruled, “the disturbing failure of the BOP to properly calculate his release date from FCI Sheridan has resulted in a total lack of care for Cruz’s ailments.” Jesse “has been forced to serve several months of his sentence at a non-BOP facility while suffering from numerous maladies of the mind and body without respite,” the Judge held.

The Hill, Federal Bureau of Prisons reverses on withholding COVID-19 vaccine from inmates (December 22, 2020)

Greensboro, N.C. News & Record, Reversing course, feds say some N.C. inmates got virus vaccine (December 23, 2020)

Forbes, Federal Bureau of Prisons Starts Vaccination of Staff, Inmates Soon Thereafter (December 21, 2020)

Pacific Daily News, ‘Extremely rare and unique situation’: Sentence reduced for man mistakenly released (December 24, 2020)

– Thomas L. Root

“Pardon Me” Is a Request, Not an Apology, at the White House – Update for December 29, 2020

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

IT’S WHO YOU KNOW…

alice201229A week ago today, President Donald J. Trump pardoned 15 people and commuted the sentences of five more. The next day, he pardoned 26 more people and commuted three additional sentences. And sources say there are more to come…

That’s the good news for federal inmates. The bad news is this: virtually everyone receiving clemency was supported by political figures or friends of the President. Perhaps the least celebrity of the lot was Alice Johnson, who was released from a drug conspiracy sentence in 2018 after Kim Kardashian lobbied Trump.

Alice has apparently become a Trump favorite after speaking at the Republican Convention last August (after which the President raised her commutation of sentence to a full pardon). Alice is using her access to successfully recommend a number of people for clemency (and who can blame her… she’s looking out for people she did time with, something anyone who’s ever been locked up understands).

But Alice’s support of average inmates she knew while doing 20 years aside, Politico said “the raft of pre-Christmas pardons and commutations… favored the well-connected and those with A-list advocates, while appearing to shunt aside — at least for now — more than 14,000 people who have applied for clemency through a small Justice Department office that handles such requests.

who201229None of the clemency applications granted last week went through the Dept of Justice Office of Pardon Attorney. The New York Times reported that more than half of the cases granted did not meet the DOJ’s standards for consideration. “It looks as if the president is relying very heavily on recommendations from members of Congress and people he knows personally and not on the Justice Department pardon process that’s served presidents well for 150 years,” said Margaret Love, who served as pardon attorney under two presidents.

henhouse180307(Editor’s note: The DOJ pardon process has been a clattering disaster, despite what Ms. Love says, a classic illustration of the fox being placed in charge of deciding whether any chickens should be spared from being eaten. But replacing it with a process favoring only the friends [or friends of the friends] of the President is not an improvement.)

A tabulation by Harvard Law School professor Jack Goldsmith found that of Trump’s 45 pardons or commutations before last week, 88% went to people with personal ties to the president or to people who furthered his political aims. The pardons “continue Trump’s unprecedented pattern of issuing self-serving pardons and commutations that advance his personal interests, reward friends, seek retribution against enemies, or gratify political constituencies,” Goldsmith told The New York Times. “Like his past pardons, most if not all of them appear to be based on insider recommendations rather than normal Justice Department vetting process.”

The President “has largely overridden a highly bureaucratic process overseen by pardon lawyers for the Justice Department and handed considerable control to his closest White House aides, including Kushner,” Report Door said. “They, in turn, have outsourced much of the vetting process to political and personal allies, allowing private parties to play an outsize role in influencing the application of one of the most unchecked powers of the presidency.”

pardon160321Trump’s son-in-law and top adviser, Jared Kushner, has played a key role in managing the avalanche of clemency requests that have come into the White House as the administration nears its end next month, according to multiple sources, Yahoo News reported. “Everyone’s sending emails to Jared,” a source familiar with the process reportedly said. “If you want to make something happen, go to Jared.”

The source, who requested anonymity due to the sensitivity of the ongoing process, spoke with Yahoo News before Trump issued the spate of pardons and commutations. “It’s going to be a free-for-all,” the source said.

Kevin Ring, president of criminal justice reform group FAMM, told The New York Times he was optimistic that Mr. Trump would still consider average and unconnected inmates, the kind of people his group backs. He predicted that the clemencies to come over the remaining three weeks of Trump’s presidency will include “head-scratchers mixed in with the ones that look good.”

Yet despite the likelihood of clemencies to come, criminal justice activists are not encouraged by Trump’s spotty and sparse record to date. Goldsmith said the president “is stingy” with his pardon power, “even as he abuses it.”

The White House, Statement from the Press Secretary Regarding Executive Grants of Clemency (December 22, 2020)

The White House, Statement from the Press Secretary Regarding Executive Grants of Clemency (December 23, 2020)

Politico, Trump’s latest batch of pardons favors the well-connected (December 22, 2020)

The New York Times, Trump Pardons Two Russia Inquiry Figures and Blackwater Guards (December 22, 2020)

Report Door, Behind Trump Clemency, a Case Study in Special Access (December 26, 2020)

Yahoo News, Jared Kushner played a key role in White House pardon ‘free-for-all’ (December 24, 2020)

The New York Times, Outside Trump’s Inner Circle, Odds Are Long for Getting Clemency (December 28, 2020)

– Thomas L. Root

Money and Education… Just No Sentence Relief – Update for December 28, 2020

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

‘WHAT THE PELL?’ – NO SENTENCE REFORM IN STIMULUS, BUT THERE’S COLLEGE MONEY AND CASH FOR INMATES

Remember all of the sentence reform bennies in last May’s HEROES Act, passed by the House? Forget about them.

HR133-201228The 5,593-page stimulus package passed by Congress and signed last night by President Trump had none of the changes to compassionate release, CARES Act home confinement or elderly offender home confinement included in HEROES. However, the bill does resume federal college financial aid to prison inmates – Pell grants – that was banned in the 1994 crime bill championed by then-Senator Joseph R. Biden Jr.

The measure was part of a bipartisan deal struck by House and Senate education leaders to address affordability and equity in higher education. Two years ago, leaders in both houses, as well as the education secretary, Betsy DeVos, agreed that the 1994 ban should be revisited. In 2015, President Barack Obama’s Education Department piloted an experimental program called “Second Chance Pell” that allowed 12,000 incarcerated students to be eligible for the financial aid for distance learning and other programs that required tuition. Secretary DeVos expanded the program and urged Congress to make it permanent.

takethemoney191015The other curious feature – omission, perhaps – in the new stimulus package is this: after the uproar over inmates being eligible to receive the $1,200 stimulus payment in the CARES Act, there was no doubt that inmates would be cut out of any stimulus payment in the bill signed last night. But the legislation contains not a whisper that incarcerated people are exempt. Rather, it merely adopts the CARES Act eligibility requirement without change, meaning that inmates remain eligible for the stimulus payment, just like they were last spring.

The New York Times, Financial Aid Is Restored for Prisoners as Part of the Stimulus Bill (December 23, 2020)

Rules Committee Print, Consolidated Appropriations Act, 2021 (Senate Amendment to HR 133) (December 21, 2020)

– Thomas L. Root

What You Don’t Know Can Hurt You – Update for December 24, 2020

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

AND WHAT MIGHT THIS BE?

A drug is a drug is a drug.

puzzled201223It has been the law for at least 30 years that a defendant doesn’t have to know what illegal drugs he might be involved with, as long as he knows that whatever he possesses is illegal. This may make some sense, until you stop to think that carrying around a kilo of crack will get you a dramatically higher sentence than, say, a kilo of pot (the difference between six months and 10 years).

Trontez Mahaffey was busted at Cincinnati Airport with 40 lbs. of vacuum-sealed marijuana. But hidden in one of Tron’s bales was a packet containing 4 lbs. of meth. Tron claimed he knew about the pot, but not about the meth. He argued that under Rehaif v. United States – which required that a felon in possession of a gun really know he was a felon – the government has to show that Tron was aware of what drugs he possessed, not just that he knew he had some kind of illegal substances.

Tron said a drug is not a drug is not a drug.

Last week, the 6th Circuit disagreed. Instead, it joined the 1st and 5th in holding that while there is a “longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding each of the statutory elements that criminalize otherwise innocent conduct,” the ordinary meaning of 21 USC § 841(a)(1) only “requires a defendant to know only that the substance he is dealing with is some unspecified substance listed on the federal drug schedules.”

gotcha170207Under the statute’s plain language, the Circuit ruled, the government need only show “the defendant knew he possessed a substance listed on the schedules, even if he did not know which substance it was.” Not know what he was carrying cost Tron a 10-year mandatory minimum sentence. Forty lbs. of pot, by contrast, carries no mandatory minimum sentence and a Guidelines range of about six months.

I guess a drug is not a drug is not a drug. But to a defendant, it is…

United States v. Mahaffey, Case 19-6061, 2020 U.S. App. LEXIS 39797 (6th Cir. Dec 18, 2020)

– Thomas L. Root