Tag Archives: compassionate release

COVID Deadlier in Prison (No Surprise There) – Update for September 11, 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.

COVID-19 THIS WEEK

corona200313The reopening of visitation, even with the restrictions the Federal Bureau of Prisons anticipates, suggests that the BOP is getting a handle on COVID-19. But the numbers hardly suggest that. As of last night, 1,834 inmates were sick, about the same as a week ago. Sick staff remained at 648, and only one additional inmate died during the week, bringing the total to 125. But COVID-19 remains stubbornly present in 113 institutions, 91% of Bureau of Prisons facilities, one more than a week ago.

A disturbing report from the Council for Criminal Justice issued last week found that the COVID-19 mortality rate within prisons is 61.8 deaths per 100,000 inmates, twice that of the general public mortality rate, even adjusted for the sex, age and race or ethnicity of those incarcerated. The rate of COVID-19 cases reported by state and federal prisons is nearly 7,000 cases per 100,000 people in prison, more than four times the rate of confirmed cases per 100,000 US residents. Geographically, prisons with the highest number of COVID-19 cases are those located in the southern region of the U.S., and in prisons with over 1,000 inmates. The highest COVID-19 mortality rates come from large prisons and those in the midwest. Overall, the BOP COVID mortality rate is twice that of the general population.

A Minnesota TV station reported last Friday that Ambjar Anderson, the chief steward of the BOP staff union at FCI, told reporters that a month ago “the prison received a couple of buses of inmates. One bus was mostly comprised of positive COVID-cases.”

distancing200911
“We’ve had the proper PPE in place and that’s what helped us mitigate things so far,” Anderson was quoted as saying, but “it’s really hard when the Bureau sends a busload of them. The numbers – it’s spreading – because it’s a prison and it’s hard to social distance.”

Anderson told the station that “we have staff who have families and communities that they are living in and going to and they care about and they don’t want to pass it around to everyone, yet now it’s spreading in our institution.”

A US Sentencing Commission study of the first year of the First Step Act, released last week, reported that 145 motions seeking compassionate release were granted through the end of September 2019, a five-fold increase from fiscal year 2018. Two thirds were filed by the defendant, one third by the BOP. The average length of the sentence reduction was 68 months in fiscal 2018; 84 months in 2019. The average months of time served at the time of release also increased from 70 months to 108 months.

judge160229No stats are yet available for the COVID-19 series of compassionate releases. However, last week a Colorado Politics review of 42 court opinions issued between March 1 and August 31 the District of Colorado found that only in five coronavirus-related instances did a judge agree to “compassionate release.” Two judges who oversaw half of the requests did not grant a single release. One of them contended that an inmate who contracted COVID-19 in prison should remain there so as not to infect others.

Council on Criminal Justice, COVID-19 in State and Federal Prisons (September 2, 2020)

KIMT-TV, Rochester, Minnesota, Outbreak Concerns at FCI Waseca (September 4, 2020)

US Sentencing Commission, The First Step Acct: One Year of Implementation (Aug 31)

Colorado Politics, Federal judges in Colorado granted 12% of pandemic-related early release requests (September 1, 2020)

– Thomas L. Root

Chance and Death at the BOP – Update for August 14, 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.

COMPASSIONATE CRAPSHOOT

dice161221A BuzzFeed News review of more than 50 cases seeking an 18 USC § 3582(c)(1)(A) “compassionate release” sentence reduction by federal inmates shows that with little legal precedent to guide courts in deciding the flood of release motions during a pandemic, decisions about who gets out of prison and who does not can appear arbitrary. That’s probably because they are.

Prisoner advocates and defense lawyers say these cases can come down to the luck of the draw, with some judges proving to be more sympathetic than others. Judges are making medical assessments about how much of a threat COVID-19 poses to an individual inmate and then deciding how to balance that against the public safety risk of sending that person back into the community. And judges are reaching different conclusions about how to measure an inmate’s risk of exposure in state and federal prisons, which have seen some of the worst clusters of COVID-19 cases nationwide.

In some denials, judges relied on the fact that there weren’t any COVID-19 cases at a particular prison, but sometimes that wasn’t a barrier. Some judges insisted inmates have served at least half of their sentence. Nearly all judges required proof of a specific medical condition.

compassion160208

Not only are the standards being applied by district courts grossly inconsistent across the 673 active federal district judges. The BOP has added to the chaos as well. Twenty-five inmates have died in its custody this year while their requests for sentence reduction were under consideration, including 18 since March 1, around the time the coronavirus began spreading in U.S. communities. In the 50 July cases examined by Buzzfeed, the BOP opposed or failed to respond to 38 compassionate release requests that the courts denied. The Bureau also opposed 10 releases that courts eventually granted. Only in two cases did the agency agree to a release before a court intervened.

More than one inmate has died of COVID-19 after being denied compassionate release by the BOP. Perhaps the latest was Saferia Johnson, coldly described as “inmate” – along with her crime of conviction – by the BOP media machine (more interested in making the agency look good in a bad situation than in compassionately reporting the death of a mother of two young boys). Saferia died of the virus after the BOP denied her compassionate release (not that the BOP press release would note that). She was serving 46 months for a fairly plain-vanilla white-collar embezzlement offense at Coleman.

“Now I have to bury my daughter and figure out how to raise these kids,” Ms. Johnson’s mother, Tressa Clements, told the Miami Herald. Clements said she and other family members told Johnson’s boys — Kyrei, 7, and Josiah, 4 — Monday that their mother isn’t coming home.

“We told them that God wanted her as an angel with him,” she said. “But she will always be in their lives and be their guardian angel.”

fault200814Incidentally, the BOP death count inched up to 117 yesterday (112 in BOP custody, five federal inmates in private prisons) with virtually all of the deceased “memorialized” by BOP press releases.

Forget that de mortuis nil nisi bonum nonsense. The BOP is much more into speaking ill of the deceased, who after all was an inmate more than a person, and interring any good with his or her bones. The BOP press release obituary (written formulaically by some BOP press office minion), is intended to let the world know that (1) it really wasn’t the BOP’s fault, because the agency did everything it could to save the victim, (2) it really wasn’t the BOP’s fault, because the victim had all of these unidentified “long-term, pre-existing medical conditions,” and, of course, (3) the dead inmate was a scumbag who was serving a sentence for doing truly horrible things, so – in the scheme of things – the death is not that lamentable, except for the fact it may make the BOP look bad unfairly.

compassionaterelease190517It’s worthwhile that we are reminded, once in awhile, that the “inmate” described as “a 36-year-old female who was sentenced in the Middle District of Georgia to a 46-month sentence for Conspiracy to Steal and Embezzle Public Money and Aggravated Identity Theft” was a mom leaving behind a second-grader and a preschooler.

The None of us is as good as our finest moment, nor as bad as our worst. And few of us have a heart as cold as a BOP obituary.

Buzzfeed News, “I Had Hit The Lottery”: Inmates Desperate To Get Out Of Prisons Hit Hard By The Coronavirus Are Racing To Court (August 8, 2020)

Washington Post, Frail inmates could be sent home to prevent the spread of covid-19. Instead, some are dying in federal prisons. (August 3, 2020)

Miami Herald, Woman asked for compassionate release. The prison refused. She just died of COVID-19 (August 6, 2020)

– Thomas L. Root

Congress Leaves Stimulus – and Federal Prisoners – Up In The Air – Update for August 10, 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.

DON’T START TO FEEL TOO STIMULATED JUST YET

Congress left Washington, D.C. last Friday for its August recess without passing a supplemental stimulus bill. The Democrats are pushing the HEROES Act, passed by the House last May, which proposes $3.5 trillion in spending and includes a lot of beneficial provisions for federal prisoners. The Republican-controlled Senate favors the HEALS Act, which includes about $1 trillion in spending but nothing of the sentencing relief measures favored by the House.

senatestimulus200810The HEROES Act provides that the Bureau of Prisons shall send to home confinement anyone who is 50 or over, is within 12 months of release, or has a list of COVID-19 risk conditions. Those conditions, which were just expanded for a second time by the Centers for Disease Control and Prevention on July 30, include pregnancy, heart disease, asthma, diabetes, HIV, cancer, sickle-cell anemia, respiratory problems, obesity, hypertension, or immune system weaknesses. The only exception are people who pose a specific and substantial risk of bodily injury to or to use violent force against another person.

What’s more, courts would be required to reduce sentences for people unless the government can show by clear and convincing evidence that the defendant poses a risk of “serious, imminent injury” to an identifiable person. The Act also incorporates a reduction of the elderly offender home detention program sentence requirement (the subject of a separate bill that has already passed the House, H.R. 4018) to two-thirds of the sentence reduced by good time, instead of the current two-thirds of the whole sentence.

The Health, Economic Assistance, Liability Protection and Schools (HEALS) Act being pushed by the Senate is a mashup of eight other bills, none of which favors prisoners. What’s worse, HEALS’ stimulus package of an additional $1,200 per person is now withheld from people who were prisoners for every day of the 2020 calendar year.

Senate Democrats are trying to get the HEALS Act to require that phone calls from federal prisons remain free during the pandemic, which is a fig leaf (but not much of one) for prisoners.

No one knows whether a final bill, if there even is one, will include any of the House provisions.

housestimulus200810Several groups led by ACLU wrote to Senate and House leaders last week, urging that any stimulus package require the BOP to transfer vulnerable federal inmates to home confinement, clarify the authority of courts to order compassionate release based on COVID-19, and reduce the amount of time courts must wait before considering compassionate release motions during the pandemic. The letter also called on Congress to expand the elderly offender home detention program.

Finally, the House last week added an amendment to the 2021 Commerce, Justice, Science, and Related Agencies Appropriations bill which prohibits the BOP from collecting its 25% fee from halfway house or home confinement inmates. “For returning citizens lucky enough to find jobs, especially in the midst of a national pandemic and economic crisis,” Congresswoman Eleanor Holmes Norton (D-District of Columbia) said, “charging up to 25% of their income in unnecessary fees is not only unfair, it is counterproductive. Returning citizens could far better use this money to save for future rent, child support and fines and fees associated with their conviction, such as restitution.”

H.R. 6800, HEROES Act

S.4318 – American Workers, Families, and Employers Assistance Act

The Hill, Senate Democrats push to include free phone calls for incarcerated people in next relief package (August 6, 2020)

ACLU Leadership Conference, Open Letter to Senate and House Leaders (August 4, 2020)

Press Release, Norton Amendment Prohibiting Bureau of Prisons from Collecting Subsistence Fees from Returning Citizens Passes House (August 3, 2020)

– Thomas L. Root

When It Comes to Compassionate Release, § 3553 Matters – Update for July 27, 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.

3RD CIRCUIT SAYS § 3553 MATTERS IN COMPASSIONATE RELEASE

compassionlimit200727Before The First Step Act passed in December 2018, only the Federal Bureau of Prisons could file a motion on behalf of an inmate seeking a “compassionate release” sentence reduction under 18 USC § 3582(c)(1)(A). Disgusted with the BOP’s chariness on seeking releases for sick or dying inmates, Congress included a provision in First Step authorizing prisoners to seek compassionate release directly, after asking the BOP to do so and then waiting 30 days while the BOP either refused or dithered.

Even after First Step passed, compassionate release was not widely used, with something like only about 150 decisions between First Step’s passage and the COVID-19 pandemic. But since the virus, compassionate release has been a fast-growing area of the law. LEXIS records over 2,750 decisions involving COVID-19 and compassionate release. And as of last week, the BOP says that 916 compassionate release sentence reductions have been granted.

Because compassionate release filed by movants other than the government is fairly new, there is very little appellate court interpretation of the statute. The 3rd Circuit, which gave us a terrible decision on exhaustion of remedies under 18 USC § 3582(c)(1)(A) 16 weeks ago in United States v. Raia, last week handed down a more reasoned decision on application of 18 USC § 3553(a) sentencing factors in compassionate release cases.

To earn a compassionate release sentence reduction, a defendant has to make three showings: First, that the reasons for the reduction are “extraordinary and compelling;” second, that the defendant is not a danger to the community; and third, that grant of a sentence reduction is consistent with the sentencing factors in 18 USC § 3553(a). That statute, of course, addresses the considerations a district court should include in making sentencing decisions.

corruption200727Edwin Pawlowski had been mayor of Allentown, Pennsylvania, before the feds convicted him for bribery and other political crimes resulting from his shaking down city contractors (a Pennsylvania political sport, if reports from Philadelphia over the past half a century are any guide). He got 180 months, and has served 19 months so far.

Ed filed a motion with his sentencing court for compassionate release, arguing that he suffers from hypertension, heart disease, COPD, dyspnea, and sleep apnea. All of this is exacerbated by his only having one lung. Ed argued these conditions place him at a higher risk of serious illness from COVID-19 if he catches it, and noted that he is locked up in an FCI that has been badly affected by COVID-19.

The court agreed that all that was true, and that these reasons were extraordinary and compelling bases for compassionate release. However, the district court ruled that the § 3553(a) sentencing factors did not weigh in favor of release, as Ed had served just 10% or so of his 15-year sentence.

In late June, the 3rd Circuit upheld the district court in a non-precedential opinion. Last week, it amended that opinion and made it binding precedent.

The Circuit held that the district court “reasonably concluded that several of the § 3553(a) factors – including the need to reflect the seriousness of the offense, promote respect for the law, and afford adequate deterrence – counsel against compassionate release, as that relief would effectively reduce Pawlowski’s sentence from 15 years to less than two years’ imprisonment. We have not previously considered whether a district court abuses its discretion by denying a motion for compassionate release based on the amount of time remaining to be served in the inmate’s sentence. But numerous district courts have taken this into account in considering whether to grant compassionate release… And at least one of our sister circuits has approved that consideration…”

allentown200727The Circuit reasoned that “because a defendant’s sentence reflects the sentencing judge’s view of the § 3553(a) factors at the time of sentencing, the time remaining in that sentence may — along with the circumstances underlying the motion for compassionate release and the need to avoid unwarranted disparities among similarly situated inmates — inform whether immediate release would be consistent with those factors. Hence we cannot conclude that the district court acted unreasonably in determining that the substantial sentencing reduction required for granting compassionate release here… would be inconsistent with the § 3553(a) factors.”

Here, Ed’s original sentence was within the Guidelines. The district court found that Ed’s crimes “were extraordinarily serious, involving abuse of a position of public trust,” and that these crimes required “a significant period of incarceration.” The district court also found that cutting Ed’s “sentence to time served would result in his serving less time than… his former campaign manager and coconspirator, who pleaded guilty and was sentenced to 60 months.”

Sentencing Law and Policy, Back by popular demand, another VERY long list of federal sentence reductions using § 3582(c)(1)(A) (July 19, 2020)

United States v. Pawlowski, 2020 U.S. App. LEXIS 23431 (3rd Cir., July 24, 2020)

– Thomas L. Root

Congress Lurching Toward Easing Compassionate, Elderly Offender Release? – Update for June 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.

COVID-19 SPURS LAWMAKERS, CDC

corona200313Last week’s upsurge in COVID-19 cases nationally has begun to translate to an increase in Federal Bureau of Prisons inmates with coronavirus. A number that had dwindled last week to 1,256 by last Thursday shot back up to 1,429 as of last night. The inmate death count is 93, with COVID-19 present on 71 prison compounds throughout the BOP system (57% of all facilities).

As of yesterday, the BOP had tested 21,400 inmates, up about 12% from last week. The Bureau is still showing about 30% of inmates tested as positive for COVID-19, and it has only tested about now out of six inmates.

The noteworthy developments in COVID-19 last week, however, were not viral, but rather legislative and medical.

Legislative: Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), principal authors of the First Step Act, last week jointly introduced S.4034, bipartisan legislation to reform the Elderly Offender Home Detention (EOHD) Program and compassionate release.

Sen. Charles Grassley (R-Iowa)
                  Sen. Charles Grassley (R-Iowa)

EOHD, authorized by First Step as part of 34 USC § 60541(g), permits the BOP to place prisoners who are 60 years old or older, convicted of non-violent offenses, and with good conduct in home detention for the remainder of their sentences. Compassionate release, expanded by First Step, permits a court to reduce a prisoner’s sentence for extraordinary and compelling reasons, pursuant to 18 USC § 3582(c)(1).

S.4034, dubbed the COVID-19 Safer Detention Act, would reform the EOHD and compassionate release by:

• Clarifying that the percentage of time an inmate needs to qualify for EOHD should calculated based on an inmate’s net sentence, including reductions for good time. Currently, the BOP charily calculates it as two-thirds of the total sentence, not two-thirds of the 85% of the sentence the inmate actually serves. This change has already passed the House by voice vote in HR 4018, which las been languishing in the Senate since last Christmas;

• Cutting the percentage of time an inmate must serve to qualify for  EOHD from two-thirds of the sentence to one-half;

• Making “old law” federal prisoners (those convicted prior to 1988) eligible for compassionate release;

• Making DC offenders housed in BOP facilities eligible for EOHD;

• Making denial of EOHD release subject to court review; and

• Providing that during the pandemic, COVID-19 vulnerability is deemed a basis for compassionate release, a statutory change that would prevent the government from trying to convince courts (and some have been convinced) that the pandemic is hardly extraordinary; and

• Shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days. Currently, there is no judicial review of a BOP denial of EOHD, and inmates must ask the BOP to file for compassionate release on their behalf, and wait 30 days for an answer before filing themselves.

Sen. Richard Durbin (D-Illinois)
Sen. Richard Durbin (D-Illinois)

It is unclear whether the bill will pass, but sponsorship by a Democrat and Republican increases its odds. Hamodia reported that the bill “will likely be attached it to another bill, such as a stimulus bill or the police-reform bill currently being crafted by Sen. Tim Scott (R-S.C.)”

Medical: The other COVID-19 major development last week was medical. Last Thursday, the Centers for Disease Control and Prevention in Atlanta released updated COVID-19 guidelines to adjust the ages and expand the health problems that could make people more likely to have severe complications. The move comes amid the rising number of younger patients and new studies that show the effects of certain conditions.

The new CDC guidelines are crucial for prisoners, because courts determine whether movants for compassionate release qualify according to whether the inmates have one or more of the CDC risk factors.

First, the CDC walked back the “65 and over” risk factor, which many judges have interpreted as being a hard number, denying any health-concern consideration for a 64-year old but treating a 66-year old prisoner as knocking on death’s door.

death200330Instead, CDC highlights that all ages could catch the coronavirus but effects of the infection may get worse as people get older. “There’s not an exact cutoff of age at which people should or should not be concerned,” Jay Butler, the CDC’s deputy director of infectious diseases, said in a news briefing.

Of more relevance to prisoners, the CDC has found that risks associated with obesity start at a much lower level. The CDC had held that only the morbidly obese (body mass index of 42+) were at risk. Now, the CDC says anyone with a BMI of 30 or more is at risk.

Under the old standard, a 50-year old 6-foot tall man would have to weigh 310 lbs. to be at risk. Now, the same guy only has to tip the scales at 225 lbs. to exceed a 30 BMI.

Other conditions CDC identified as elevating COVID-19 risk included chronic kidney disease, COPD, weaker immune system due to organ transplant, heart conditions, sickle cell disease, type 1 and 2 diabetes, asthma, dementia, cerebrovascular diseases, cystic fibrosis, high blood pressure, liver disease, pulmonary fibrosis, and an inherited blood disorder known as thalassemia. The CDC also added pregnancy to the list.

A number of inmates have been denied compassionate release because judges decided their risk factors – such as hypertension and dementia – did not match the risk factors on the prior CDC list. There is no statutory limitation to the number of times an inmate may file for compassionate release (other than the judge’s ire, perhaps), meaning that the changing COVID-19 risk landscape offers prisoners a new shot at release.

COVID-19 Tracker: The Marshall Project is running a state-by-state COVID-19 prison tracker website, which includes “Federal” as a category. The site charts total cases, inmates and staff currently sick, deaths, and new cases by date.

S.4034, COVID-19 Safer Detention Act (introduced June 22, 2020)

Hamodia, New Senate Legislation Expands Early Release (June 23)

CDC, People of Any Age with Underlying Medical Conditions (June 25, 2020)

Medical Daily, CDC Updates Guidelines On Coronavirus Risk Factors (June 26)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (June 25)

– Thomas L. Root

Compassionate Release Exhaustion Requirement Nonwaivable, Court Says – Update for June 12, 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.

6TH CIRCUIT HOLDS THERE’S NO EXCUSING EXHAUSTION UNDER COMPASSIONATE RELEASE

notime160915The 6th Circuit ruled last week that 18 USC § 3582(c)(1)(A)’s requirement that an inmate first ask the warden to recommend compassionate release, and then either exhaust remedies or wait 30 day before going to court is a “mandatory claims-processing rule” that cannot be waived because of emergency.

Ever since the start of the COVID-19 pandemic in March, the volume of motions filed with federal courts seeking compassionate release has skyrocketed. The statute requires that a prisoner may file the motion with his or her sentencing court only “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…” A large number of filers skipped that requirement, arguing to their courts that they should be allowed to skip the administrative exhaustion requirement, because the COVID-19 dangers make every second count.

timewaits200325To be sure, the exhaustion requirement makes no sense. First, the notion that anyone can navigate the BOP’s three-level administrative remedy process in under six months is fantasy. The agency not only has 20 to 40 days to respond at each level, but the rules entitle the BOP to automatic extensions of time. An inmate has fair winds and following seas if he or she can push an administrative remedy to conclusion in six months.

Second, the old compassionate release statute permitted only the BOP to file motions for compassionate release on behalf of inmates. Congress became so irked at the BOP’s chary use of its power that in the First Step Act, it granted inmates the right to file themselves. But in order to let the BOP salvage a shred of honor from its stripping the BOP of its sole authority to make such motions, Congress offered the BOP a fig leaf of what is essentially a right of first refusal.

But the odds that the BOP is any more likely to bring such motions now than at any time in the past are really long. That makes the requirement that an inmate make a request to the warden and then wait 30 days little more than a pointless ritual.

No matter. Congress wrote it the way it wrote it, and anyone who recalls those hectic days in December 2018 pushing First Step to fruition should not be surprised that the 149-page bill is somewhat less pellucid that the Declaration of Independence.

time161229Last week, the 6th Circuit held that the exhaustion requirement of the statute means what it says, and that court-made “equitable carveouts” to its terms – including the excuse that the request is an emergency – make no sense. “Remember that Congress made compassionate release available only to elderly prisoners and those with “extraordinary and compelling” reasons for release. For such prisoners, time usually will be of the essence. That would make nearly every prisoner eligible to invoke ‘irreparable harm’ and eligible to jump the line of applications — making the process less fair, not more fair.”

United States v. Alam, 2020 U.S. App. LEXIS 17321 (6th Cir, June 2, 2020)

– Thomas L. Root

6th Circuit FCI Elkton Holding a Mixed Bag – Update for June 11, 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.

THREE WINS AND A LOSS AT THE 6TH CIRCUIT

winloss200611On the third try, the Federal Bureau of Prisons finally succeeded in getting a higher court to issue a stay in the FCI Elkton (Ohio) habeas corpus/8th Amendment case, stopping for the moment the U.S. District Court for the Northern District of Ohio’s injunction demanding that the BOP identify and either transfer or release medically vulnerable inmates.

On Tuesday, the U.S. Court of Appeals for the Sixth Circuit ruled that the preliminary injunction – which can only issue if a moving party can show irreparable harm and likelihood that it will succeed on the merits of the case – should be set aside. This does not mean that the inmate plaintiffs in the class action cannot win, but I suspect the BOP is betting that time (and attrition of the medically vulnerable inmates, as one after another comes down with COVID-19), will render the whole lawsuit moot before it’s done.

Technically, the lawsuit is a petition for writ of habeas corpus, addressed to unconstitutional conditions of confinement. The remedy in a habeas action is release of the prisoner or abatement of the unconstitutional condition. Here, the prisoners claimed that the BOP was violating the 8th Amendment, exacting “cruel and unusual punishment” by the Elkton administration’s “deliberate indifference” to a deadly medical condition, COVID-19.

plague200406In a 2-1 decision, the 6th Circuit panel struck down the district court’s order to thin the ranks of the 2,000 inmates at Elkton (located in Lisbon, Ohio, about 65 miles southeast of Cleveland), where more than a quarter have tested positive for the coronavirus and 19 inmates have died. U.S. District Judge James Gwin ruled in April that the administration was not doing enough to protect inmates, and ordered that the BOP transfer or release elderly or medically compromised prisoners.

“Deliberate indifference” has two components, one objective and one subjective. The Circuit ruled that while the plaintiffs had shown that objectively, COVID-19 was a genuine medical danger at the facility, they were unlikely to prove that the steps the BOP had taken as of April 22 — such as screening for symptoms, limiting visitation, increasing cleaning and providing masks — were insufficient to raise the administration’s response above the “deliberate indifference” standard. The majority on the panel agreed that the BOP’s “actions show it has responded reasonably to the risk posed by Covid-19 and that the conditions at Elkton cannot be found to violate the Eighth Amendment.”

Chief Judge R. Guy Cole Jr. dissented, writing that he was “left with the inescapable conclusion that the BOP’s failure to make use of its home confinement authority at Elkton, even as it stared down the escalating spread of the virus and a shortage of testing capacity, constitutes sufficient evidence for the district court to have found that petitioners were likely to succeed on their Eighth Amendment claim.”

habeasB191211Inmate advocates were disappointed with the ruling, but I think there were three wins in the decision for inmates. First, the BOP has argued in this case as well as in other pending cases elsewhere that inmates could not proceed on habeas corpus, but instead had to use a cumbersome procedure that would not have permitted as a remedy the release of inmates. The Court roundly dismissed this argument, holding that the claim being made can proceed on a 28 USC § 2241 habeas corpus petition.

Second, the Court swept aside BOP arguments that the inmates had to “exhaust” administrative remedies under the Prison Litigation Reform Act. This would have required each inmate plaintiff to file administrative remedies to the warden, then the regional BOP office, and final with the BOP in Washington, a cumbersome and largely futile procedure that would have consumed six months before a suit could even be brought.

Finally, the Court held that

“petitioners have provided evidence that they are ‘incarcerated under conditions posing a substantial risk of serious harm.’ The COVID-19 virus creates a substantial risk of serious harm leading to pneumonia, respiratory failure, or death. The BOP acknowledges that ‘[t]he health risks posed by COVID-19 are significant.’ The infection and fatality rates at Elkton have borne out the serious risk of COVID-19, despite the BOP’s efforts. The transmissibility of the COVID-19 virus in conjunction with Elkton’s dormitory-style housing—which places inmates within feet of each other—and the medically-vulnerable subclass’s health risks, presents a substantial risk that petitioners at Elkton will be infected with COVID-19 and have serious health effects as a result, including, and up to, death. Petitioners have put forth sufficient evidence that they are ‘incarcerated under conditions posing a substantial risk of serious harm’.”

tryhard200611This is a powerful foil to the government’s oft-repeated claim in opposing compassionate release motions that the BOP is adequately meeting inmate medical needs despite COVID-19, and that there is thus no need to protect vulnerable inmates by compassionate release under 18 USC § 3582(c)(1). In other words, the 6th said that the BOP was trying, but that it was not succeeding.

That may save the BOP from 8th Amendment claims – at least at the preliminary stage of litigation such as the Elkton case – but it refutes any government claim that no one needs to go home, because the BOP is keeping everyone safe.

Wilson v. Williams, Case No. 20-3447, 2020 U.S. App. LEXIS 18087 (6th Cir. June 9, 2020)

– Thomas L. Root

Are Some CARES Act Inmates More Equal That Others? – Update for May 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.

MEDIA, ADVOCACY GROUPS CALL OUT BOP ‘CRUEL INDIFFERENCE”

Word that the BOP was sending Michael Cohen, President Trump’s former lawyer, from FCI Otisville to home confinement under the CARES Act has sparked widespread criticism of the BOP’s management of the home detention program.

ignore170816Cohen, serving a 36-month sentence, has not yet served half of his term. However, while the BOP has been closed-mouth about the release, it appears that as of May 22, he had served 25% and was within 18 months of his good-time release. Cohen was originally slated to go home last month, but he was pulled from the list because he had not met the BOP’s newly-ginned up minimum sentence requirements.

The Washington Post complained last Friday that the “disorganization” at the Bureau of Prisons has not been limited to Cohen. “Inmates in several institutions have complained that the agency has issued shifting, sometimes contradictory directives about who should be released, and applied the rules inconsistently… The bureau’s decisions on who gets out, though, have sparked considerable controversy. That was especially true for [one-time Trump campaign chairman Paul] Manafort, who had been imprisoned since 2018 and was serving a term of more than seven years.”

home190109Last week in Newsweek, a public defender and prison advocate wrote that “[w]e aren’t angry that Manafort will serve the remainder of his sentence from the comfort of his three-bedroom home in Northern Virginia with his family. Far from it: We are outraged that the exact same reasonable argument and urgent call for release made by the millions of other people caged in jails and prisons across the country—with the support of their families, public defenders, advocates, organizers and medical professionals—have been met with cruel indifference or derision by those with the power to do something.”

In a Massachusetts case heard last week, according to Law360, FMC Devens’ warden was testifying that an inmate seeking compassionate release had served less than half his sentence, and thus was not considered for CARES Act release.

“As the warden was testifying,” the judge said later, “the Bureau of Prisons evidently ordered an exception to this requirement for President Trump’s former campaign manager Paul Manafort even though he had only served 23 months of a 77-month sentence. Every person and case is unique, and Mr. Manafort may have health problems that place him at a particularly high risk. However, making an exception to the policy for him and refusing to consider… and other elderly inmates on the merits will raise reasonable questions about whether justice is indeed blind.”

Since the CARES Act passed at the end of March, the number of people in home confinement increased by only 2,578, about 1.5 percent of the nearly 171,000 people in federal prisons and halfway houses when the Act passed.

The latest rumored high-profile release was the past weekend’s rumbling that former Detroit Mayor Kwame Kilpatrick, with 21 years left on a 27-year sentence, would be sent by the BOP to home detention for his remaining term. The widely-reported but unconfirmed release would send Kilpatrick to home confinement after about 25% of his sentence served. However, the BOP dashed the hopes of Kwame’s supporters Tuesday, when it announced that he would not be getting CARES Act home confinement:

On Tuesday, May 26, 2020, the federal Bureau of Prisons reviewed and denied inmate Kwame Kilpatrick for home confinement. Mr. Kilpatrick remains incarcerated at the federal correctional institution in Oakdale, Louisiana.

Kwame’s supporter might reasonably ask why Manafort could go to home confinement after serving 25% of his sentence, but Kilpatrick could not, especially where Manafort left a prison where there had been no COVID-19 while Kilpatrick languished in a veritable coronavirus petri dish.

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Many prisoners are excluded from the home detention program by the BOP’s restrictive view of what constitutes a prior crime of violence and PATTERN risk assessment scores that aren’t “minimum.” Some of those prisoners are turning to compassionate release motions under 18 USC § 3582(c)(1)(A). Since Trump signed the First Step Act in December 2018, only 144 people had been granted such release through April 1st. Since then, 268 prisoners nationwide received compassionate release.

The Dept of Justice has been reflexively fighting compassionate release motions. In a case decided last week, government lawyers called compassionate release a “Get Out of Jail Free Card” and referred to the pandemic as “a red herring.” DOJ contends that compassionate release is just judges micromanaging prisons, that the BOP knows best whom to release, and that the BOP’s COVID-19 Action Plan has controlled the pandemic and makes prison a safer place to be than at home.

The Marshall Project, Michael Cohen and Paul Manafort Got to Leave Federal Prison Due to COVID-19. They’re The Exception (May 21)

The Washington Post, Michael Cohen released from federal prison over coronavirus concerns (May 21)

Newsweek, We’re Not Angry Paul Manafort Was Released. We’re Angry Millions of Others Weren’t (May 18)

Law360.com, Manafort’s Release Helps Spring Ex-NFL Lineman From Prison (May 15)

Detroit Free Press, COVID-19 outbreak that killed his fellow inmates will help set Kwame Kilpatrick free (May 22)

Detroit Free Press, Kwame Kilpatrick denied early release from federal prison (May 27)

– Thomas L. Root

No Pants, Sneaky Releases and Weird Numbers – Update for May 19, 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.

JUDGE DEPANTS BOP CARES ACT EFFORTS, WHILE TRUMP BUDDY JUMPS HOME CONFINEMENT LINE

Last week’s top three developments in the BOP’s response to the coronavirus pandemic were a federal court’s grant of a preliminary injunction against FCI Danbury, the CARES Act release to home confinement of President Donald Trump’s former campaign chairman Paul Manafort, and the BOP’s unusual COVID-19 inmate numbers.

depants200519In Connecticut, a federal judge granted a preliminary injunction ordering the FCI Danbury warden to promptly identify inmates with COVID-19 risk conditions and to begin aggressively evaluating requests by prisoners for transfer to home confinement or compassionate release. The judge ruled that the FCI Danbury administration had failed to carry out Attorney General William Barr’s April 3 memo ordering the BOP to “maximize” emergency authority granted by the March 28 CARES Act to release inmates to home confinement.

The Danbury inmates — men and woman confined at three facilities within the complex — complained in the lawsuit that the institution was intentionally dragging its feet on compliance with Barr’s memo. The inmates argued — and the court agreed — that prisoner releases or transfers are necessary to decrease congestion and permit adequate social distancing within the institution.

The order gives the Danbury warden less than two weeks to provide him with a list of inmates eligible for transfer to home confinement. In the case of the ineligible inmates, the judge ordered the prison to provide explanations. While the judge did not grant a preliminary injunction on inmate requests for mass transfer of inmates to other institutions or home confinement, and for appointment of a special master to enforce virus mitigation measures in the prison, but he ordered an expedited hearing schedule to take up the questions.

The 74-page order blasts Danbury’s chary use of CARES Act authority and compassionate release. In the suit, the BOP admitted that since March 19, FCI Danbury staff received 241 requests for compassionate release. Of these, 136 had been denied, 18 were returned to the inmate for further information, and 87 were still awaiting review. The court observed that

the figures make clear that the FCI Danbury staff has, to date, not granted a single request for compassionate release—a batting average that is dramatically less favorable to inmates than the frequency with which courts in this District are granting Section 3582 motions… This suggests that the Warden is setting an impossible high bar for these requests. Alternatively, it suggest that the Warden has not set a new standard for compassionate release in light of the pandemic, but is applying an obsolete one that takes no account of the risk of illness or death to medically vulnerable inmates from COVID-19.

Danbury’s use of CARES Act authority fared no better. “In spite of the explicit statutory authorization in the CARES Act to make widespread use of home confinement in response to the threat posed by COVID-19, and the exhortations of the head of the government department in which the Bureau of Prison sits,” the Court wrote, “the implementation of this directive at FCI Danbury has been slow and inflexible.” Noting the Warden’s admission that only 159 inmates have been reviewed and a mere 21 inmates actually been placed on CARES Act home confinement, the Court said, “the criteria apparently being used by the Respondents to evaluate inmates for home confinement evidence a disregard for the seriousness of the health risk faced by vulnerable inmates…. In fact, the inmate bulletins make clear that those who have not served a specified percentage of their sentences are categorically disqualified: any inmate who has not served at least 50% of his or her sentence is deemed ineligible for home confinement, irrespective of vulnerability to COVID-19.”

Someone in the BOP must have read the Danbury order, because the very next morning, an inmate was sent to CARES Act home confinement who had only completed 25% of his sentence, and was not housed in a prison that had any COVID-19. Unfortunately for the BOP, the prisoner was named Paul Manafort.

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Manafort, Trump’s former campaign chairman, pled guilty in one federal case and was convicted after a trial in a second, and is about as high-profile as a federal prisoner can be. His release to home confinement in the predawn hours of last Wednesday spurred immediate denunciations of the unequal treatment of prisoners in a criminal justice system in which the wealthy and well-connected jump the line while millions of others are forced to face the spreading coronavirus pandemic with little or no hope of release.

The BOP explained that the agency “ha[s] wide discretion over who is granted home confinement,” the Des Moines Register reported. While there have been no reported cases of coronavirus at FCI Loretto, Manafort’s lawyers had previously argued that the “growing number of cases in Pennsylvania” meant it was “only a matter of time before the infection spreads to staff and inmates.” The attorneys said last month that high-risk inmates, such as their client, had to be removed from the prison before the virus arrived.

The Manafort home confinement is already being thrown in the face of U.S. Attorneys arguing against compassionate release on the grounds that the defendant has not served enough time, or that there is no coronavirus at the facility.

The BOP’s COVID-19 numbers took a puzzling dip last week. Following a tour of FCI Terminal Island Tuesday, Congresswoman Nanette Barragán, D-California, said the conditions inside the prison fall short of the federal government’s responsibility to protect inmates during the COVID-19 pandemic.

Apparently Barragán’s complaints did not fall upon deaf ears. As of Monday night, FCI Terminal Island was reporting 693 inmates sick with coronavirus. As soon as Barragán completed her visit, Terminal Island’s sick inmate count fell to 150 inmates, a 79% decrease.

Huffpost reported that “a proactive testing and segregation strategy that Bureau of Prisons officials and the Los Angeles Department of Public Health implemented late last month has seemingly produced a rapid reduction in the cases. Faced with the health crisis, officials took dramatic steps ― a lockdown of the facility, mandated testing of all prisoners, and separating inmates by their COVID-19 status.”

The BOP told Huffpost that an “aggressive testing and quarantine mitigation strategy” has led to the recovery of more than 567 inmates have recovered, while 130 remain infected. Eight Terminal Island inmates died in the pandemic.

crazynumbers200519A week ago, the BOP reported 3,385 inmate COVID-19 cases, with 48 dead. As of last night, there are 2,402 inmate cases. Eight more federal inmates died in the last week, bringing the death toll to 57. More ominously, the number of institutions with reported COVID-19 has climbed from 51 to 54 as of Sunday (but fell to 49 last night), and staff coronavirus cases climbed from 250 a week ago to 284 as of Sunday, before taking a dive to 196 last night.

The numbers seem to move of their own volition. As Reuters pointed out yesterday, “federal prisons, which typically limit testing to inmates with obvious symptoms, reported confirmed infections in fewer than 4,200 of their total inmate population of about 150,000, with 52 deaths.” As this blog has noted before, if you don’t test, you can’t count.

Rather crazy, but hardly reliable.

Long Beach, California, Post, Terminal Island is failing to protect inmates from COVID-19, congresswoman says after tour (May 13)

Hartford Courant, U.S. Judge backs prison inmates in Danbury on COVID-19 suit, orders warden to move fast on requests for release (May 12)

Martinez-Brooks v. Easter, 2020 U.S. Dist. LEXIS 83300 (D.Conn. May 12, 2020)

Common Dreams, ‘Manafort Released. But [Insert Name] Still Locked Up’: Special Treatment for Trump Crony Denounced (May 13)

Des Moines Register, Ex-Trump campaign chairman Paul Manafort released from prison amid coronavirus pandemic (May 13)

Daily Beast, Paul Manafort’s Prison Had No Coronavirus Cases. He Was Released Anyway. (May 13)

Huffpost, Lockdown At Terminal Island Federal Prison Curbs Deadly Coronavirus Outbreak (May 15)

– Thomas L. Root

Hoping the Caboose Stays Attached to the Train – Update for May 18, 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.

HOUSE OF REPRESENTATIVES TUCKS INMATE COVID-19 RELIEF INTO HEROES ACT

caboose200518The House passed the HEROES Act of 2020, a $3 trillion coronavirus-relief package, last Friday by a narrow 208-199 vote. The measure marks the Democrats’ starting point for talks with Republicans and the White House on the next round of stimulus. Fourteen House Democrats, many of whom were elected in 2018 from swing districts, voted against it. One Republican, Peter King (New York), voted for the bill.

Republicans are saying the bill, H.R. 6800, has no prospect of passing the GOP-led Senate. “It’s a parade of absurdities that can hardly be taken seriously,” Senate Majority Leader Mitch McConnell (R-Kentucky) was quoted in the Wall Street Journal as having said Thursday night. McConnell said he had spoken recently with President Trump, and that they agree another bill is probably necessary but that “it’s not going to be a $3 trillion left-wing wish list like the speaker is apparently going to try to jam down the throats of her majority.”

Why do I care (except that my bride and I could use another $2,400 check)? I care because tucked into the bill starting at page 1683 (§ 191101), is the so-called Pandemic Justice Response Act. That section makes clear that the House of Representatives is not terribly impressed with the Bureau of Prisons’ efforts so far to reduce its inmate population because of COVID-19.

The House is not alone. Last week, the U.S. District Court for the District of Connecticut minced no words about the BOP’s exercise (nonfeasance would be a better term) of its CARES Act authority to send FCI Danbury inmates to home confinement:

In spite of the explicit statutory authorization in the CARES Act to make widespread use of home confinement in response to the threat posed by COVID-19, and the exhortations of the head of the government department in which the Bureau of Prison sits, the implementation of this directive at FCI Danbury has been slow and inflexible. The Warden indicates that only 159 inmates have been reviewed since March 26, and a mere 21 inmates have actually been placed on home confinement, out of a population of roughly 1,000. Moreover, the criteria apparently being used by the Respondents to evaluate inmates for home confinement evidence a disregard for the seriousness of the health risk faced by vulnerable inmates. Indeed, the most recent inmate bulletin regarding home confinement criteria does not even expressly mention health risks or how they will be evaluated… In fact, the inmate bulletins make clear that those who have not served a specified percentage of their sentences are categorically disqualified: any inmate who has not served at least 50% of his or her sentence is deemed ineligible for home confinement, irrespective of vulnerability to COVID-19. Other criteria in the inmate bulletins are similarly unrelated to medical vulnerability and, at best, only tangentially related to public safety. For example, any inmate with an incident report in the past 12 months—no matter the seriousness—is deemed ineligible for home confinement, regardless of any health condition he or she might have. At oral argument, the Government suggested that such an inmate could seek compassionate release as an alternative. But that is a dead end at FCI Danbury: Of the 241 requests for compassionate release filed since the COVID-19 crisis began, the Warden has signed off on exactly 0.

drno200518The HEROES Act seeks to solve the BOP’s unfortunate predisposition to read any grant of statutory discretion to be the right to say “no, no and hell, no!” by providing that the Bureau shall (not may but shall) send to home confinement anyone who is 50 or over, is within 12 months of release, or has a list of COVID-19 risk conditions. Those include pregnancy, heart disease, asthma, diabetes, HIV, cancer, sickle-cell anemia, respiratory problems or immune system weaknesses. The only exception are people determined by clear and convincing evidence to pose a specific and substantial risk of bodily injury to or to use violent force against another person.

What’s more, courts would be required to reduce sentences for people unless the government can show by clear and convincing evidence that the defendant poses a risk of “serious, imminent injury” to an identifiable person.

The Act also incorporates a reduction of the elderly offender home detention program sentence requirement (the subject of a separate bill that has already passed the House, H.R. 4018) to two-thirds of the sentence reduced by good time, instead of the current two-thirds of the whole sentence. This would make an elderly offender doing a 120-month sentence eligible for home confinement at 68 months rather than 80 months.

noplacelikehome200518Under CARES Act home confinement, all the BOP is doing is designating an inmate’s home as the place of imprisonment. Nothing prevents the BOP from redesignating an inmate on home confinement back to prison at the agency’s whim. The HEROES Act would prohibit reincarceration of people sent to home confinement for no better reason than the pandemic might be over.

The HEROES Act is an 1800-page train, leaving the Pandemic Justice Response Act to pretty much be the caboose. While everyone considers it likely some of the HEROES Act will be approved by the Senate, no one can be sure whether the caboose will still be attached to the train when the Act finally pulls into the station.

Wall Street Journal, House Narrowly Passes $3 Trillion Aid Package (May 16)

H.R. 6800, HEROES Act of 2020

– Thomas L. Root