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For The Want of a Nail… – Update for December 15, 2020

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COMPASSIONATE RELEASE AIN’T JUST ANOTHER 2255

career160509Stephen Fine pled guilty in 2014 to a methamphetamine distribution conspiracy (21 USC § 846) and money laundering (18 USC § 1956). At sentencing, the district court found Steve was a Guidelines career offender (USSG § 4B1.1) based on two prior state drug convictions.

As regular readers know, being christened a “career offender” exposes a defendant to dramatically higher Guidelines sentencing ranges.

After conviction, Steve attacked his conviction in a 28 USC § 2255 habeas corpus action, alleging his lawyer had been ineffective. The motion failed. Then in July 2019, Steve filed an 18 USC § 3582(c)(1)(A)(i) sentence reduction motion, asking the court for what is generally known as “compassionate release.”

kleenix201215A momentary frolic into grammar and language: The statute calls the action of a court modifying a sentence in response to a proper motion under § 3582(c) as a “sentence reduction.” Originally, the § 3582(c)(1)(A) motion could only be brought on a prisoner’s behalf by the Bureau of Prisons, something that happened seldom enough to make a Blue Moon seem commonplace by comparison. Nevertheless, the BOP started referring to the motion it alone was authorized to bring as “compassionate release,” and the term – like a brandnomer – stuck. Think “tissue” (sentence reduction) versus “Kleenex” (compassionate release).

A § 3582(c)(1)(A)(i) compassionate release motion must show “extraordinary and compelling reasons” for a sentence reduction. Steve’s extraordinary and compelling reasons were (1) his “post-sentencing rehabilitation” and (2) that he was actually innocent of his sentence, because court decisions since his sentencing had held that the state convictions his judge relied on in declaring him a career offender should not have been counted in that calculus.

His district court turned down the compassionate release motion. Last week, the 8th Circuit agreed.

rehabilitation201215Citing Guideline § 1B1.13 (which, by the way, the 2nd, 4th, 6th and 7th have held does not apply to an inmate-filed compassionate release motion), the 8th Circuit held that rehabilitation alone was not a proper basis for a sentence reduction motion. As for Steve’s claim that he was not properly a career offender – his other extraordinary and compelling reason – the Court noted that his “challenge to the career offender determination was still a challenge to his sentence. A federal inmate generally must challenge a sentence through a § 2255 motion, and a post-judgment motion that fits the description of a motion to vacate, set aside, or correct a sentence should be treated as a § 2255 motion… Even an intervening change in the law does not take a motion outside the realm of § 2255 when it seeks to set aside a sentence… The district court was therefore correct that his challenge to the career offender determination and resulting sentence was an unauthorized successive motion to vacate, set aside, or correct a sentence.”

In a compassionate release motion, a defendant who has established an extraordinary and compelling reason must also show that grant of the motion would be reasonably consistent with the sentencing factors set out in 18 USC § 3553(a). That was where Steve’s sentence argument would have fit. Had he suggested that a sentence reduction would have been consistent with § 3553(a) factors, because the correct punishment – and thus, the punishment society suggests would be adequate but not too great – was really a lot less than what he got.

nail201215Of course, Steve still would have lost, because he was missing an “extraordinary and compelling reason.” Without one of those, none of the rest of § 3582(c)(1)(A)(i) matters at all. For the want of a nail…

United States v. Fine, Case No 19-3485, 2020 U.S. App. LEXIS 38786 (8th Cir Dec 11, 2020)

– Thomas L. Root

Higher and Higher… – Update for December 8, 2020

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BOP COVID CASES BREAKS 5,000 AS LEGISLATORS GRILL CARVAJAL

rocket-312767BOP inmate COVID-19 cases passed a grim milestone last Friday, rocketing past the 5,000 mark. That number jumped another 10% over the weekend. As of last night, the BOP had ended with

•     5,634 ill inmates (up 15% from the week before);

•    1,613 sick staff (up 12% from last week);

•    COVID in 128 BOP facilities; and

•    163 dead inmates.

The BOP has tested 57% of all inmates at least once, with the positivity rate climbing from 25% – where it has hovered for months – to over 32%.

To put this in perspective, one out of every five federal inmates who has ever had the virus has it right now.

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Two BOP facilities have more than 300 sick inmates, Loretto and Texarkana, three more with over 200 ill, andand another 16 with over 100 COVID cases. USP Tucson has 75 sick staffers, with Pollock in second place with 60 and Oklahoma FTC with 50.

Last Wednesday, BOP Director Michael Carvajal testified before the House Subcommittee on Crime, Terrorism, and Homeland Security. It wasn’t pretty. After he delivered his prepared statement – a BOP puff piece about how in response to COVID-19, the BOP had “implemented a decisive and comprehensive action plan to protect the health of the inmates in our custody, the staff, and the public, to the greatest extent possible, consistent with sound medical and corrections principles” and how the BOP’s “procedures have proven effective as this is evidenced by the steep decline in our inmate hospitalizations, inmates on ventilators and deaths” – the knives came out.

fired161227Subcommittee Chair Karen Bass (D-California) quoted a Dept of Justice Inspector General report that found up to six days elapsed before FCI Oakdale inmates who had been exposed or tested positive for COVID-19 were isolated, and wondered how that squared with the BOP’s representations. Carvajal insisted that the situation in Oakdale was not representative of BOP policies, and blamed the then-warden. “In a nutshell, we had some leadership issues there,” he said. “Our regional director had some concerns about the procedures not being enforced or followed. In essence, without getting into details, I removed the leadership.”

Carvajal pushed back at Subcommittee demands the BOP institute a blanket staff testing plan (arguably a good idea considering that 43% of all staff who have had COVID since March are sick right now). He argued that the BOP could not compel employee COVID tests. But a written statement filed with the Subcommittee by Shane Fausey, national president of the BOP employees’ unions, disputed that, complaining that despite unions’ urging, the BOP “has repeatedly refused” to offer voluntary coronavirus testing to staff members at the prison facility where they work. Instead, Fausey said, “employees who believe they were exposed or might be infected with the coronavirus must get tested on their own time and in their own communities.” For good measure, Fausey also blasted BOP and Marshals Service for transferring inmates without adequate quarantining, which he said has put “the health and safety of tens of thousands of federal correctional workers, their families, and their communities at risk.”

covidtest200420In a separate exchange with Representative Sheila Jackson Lee (D-Texas), the director said he could not force his employees to get tested for Covid-19, although the BOP waives insurance copays for those tests.

“I understand civil liberties, civil rights the Constitution, but you’re talking about individuals coming into contact with incarcerated persons who can’t walk away, who can’t get out,” Jackson Lee said. “And that means they are endangering themselves, their families at home.”

Rep. Hakeem Jeffries (D-New York) braced Carvajal about underutilization of compassionate releases. Before filing for a compassionate release, an inmate must first ask the BOP to bring the motion for him or her, a vestige of the procedure before the First Step Act broadened the law to let inmates bring their own motions. Jeffries noted that while about 2,000 such motions had been granted by courts, the BOP had approved only 11 requests when inmates first asked to the agency to do so. Jeffries asked Carvajal, “10,929 requests out of 10,940 requests were rejected, does that sound right?”

Carvajal said the BOP has been intentionally careful. Given public safety considerations, Carvajal said, the BOP’s approval rate of 0.1% makes sense: it is “not a process that should be rushed.” This suggests that the courts, with compassionate release approval rates that are 182 times higher than the agency, are profligate.

The day before the hearing, Government Executive magazine published a sobering piece in which BOP employees said that staffing shortages and COVID-19 are creating a crisis. “If not for COVID, we would still have augmentation but it wouldn’t be as crazy,” Joe Rojas, a union official. “It’s already a dangerous workplace with COVID and it’s made worse by understaffing.”

quit201208Several employees said they expect that attrition to accelerate in the coming months. Rojas said he and many others have stuck around in part due to a retention bonus the BOP offered to veteran workers in recent years. That incentive is disappearing next year, he said. A BOP spokesman said the Bureau is providing incentives “where appropriate” and taking other steps to boost recruiting. He noted the agency has hired 3,400 employees in 2020, a sharp uptick over recent years.

Already some of the prisons in the Southeast, Rojas said, are operating at 70% or less of their expected workforce level. “You can’t run a prison like that. The seams are going to burst,” he said. “I’m afraid.”

DOJ, Statement of Michael D. Carvajal, Director Federal Bureau Of Prisons (December 2, 2020)

Courthouse News Service, Officials Spar Over Covid Spread Through Prison System (December 2, 2020)

Statement of Shane Fausey, National President, Council of Prison Locals (December 2, 2020)

Government Executive, Federal Prison Employees Fear Staff Shortages and Mass Reassignments as COVID-19 Cases Spike (Dec 1)

– Thomas L. Root

4th Circuit Endorses Compassionate Release for Stacked 924(c) Sentences – Update for December 7, 2020

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THE REAL MCCOY


mccoy201207The compassionate release statute, 18 USC § 3582(c)(1)(A)(i), requires that any sentence reduction be “consistent with applicable policy statements issued by the Sentencing Commission.” The policy statement implicated by the statute is set out in USSG § 1B1.13, a Guideline which lists three very specific reasons for granting compassionate release, and a fourth “catch-all” provision permitting grant of a compassionate release motion if “as determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the [other three] reasons.”

USSG § 1B1.13 was written before the First Step Act authorized inmates to file their own sentence reduction motions. The Guideline has never been changed, because the Sentencing Commission has lacked a quorum, and thus has been able to conduct no business, since 2018. But that has not stopped the government from arguing that compassionate release motions could not be granted because the Director of the BOP has not decided that possessing COVID-19 risk factor is an extraordinary and compelling reason for a sentence reduction.

Many judges decided that because § 1B1.13 was written back in the day when only the BOP could file the motion, it was a relic that could be ignored. But not all. The result has been a terrible disparity between district courts in granting compassionate release motions: the same set of facts that justify a sentence reduction in front of one judge would be rejected by another.

Last September, the 2nd Circuit laid down the law on compassionate release in United States v. Brooker (some are calling the case United States v. Zullo), ruling that district courts have broad discretion to consider “any extraordinary and compelling reason for release that a defendant might raise” to justify a sentence reduction under § 3582(c)(1)(A), and that Guideline § 1B1.13 only applies to compassionate release motions brought by the BOP (which would be virtually none of them). Then, two weeks ago, the 6th Circuit followed Brooker/Zullo in United States v. Jones, and the 7th agreed in United States v. Gunn.

Sentencestack170404It may be hard to remember that compassionate release motions get filed for reasons other than COVID-19. One reason advanced by some defendants has been that they received horrific sentences because of stacked § 924(c) convictions. Recall that before First Step, if you robbed a bank with a gun, you got maybe 87 months for the robbery and a mandatory 60 months more for the gun. But rob three banks on successive days, and you would get 87 months for the robbery, 60 more months for the gun used in the first robbery, 300 months more for the gun used the next day, and 300 more months for the gun used the third day. This was because § 924(c) specified that each subsequent § 924(c) conviction carried 300 months. First Step changed that, making clear that the 300-month sentence only applied if you committed a § 924(c) offense after being convicted of the first offense.

First Step did not make the § 924(c) changes retroactive. Nevertheless, after it passed some guys with stacked § 924(c) violations filed compassionate release motions, arguing that it was extraordinary and compelling to make them serve much longer sentences when the law had changed, and people being sentenced now did not face the same penalty.

One guy in Virginia, Thomas McCoy, and three others from Maryland filed such cases. Their respective district courts agreed with the motions, cutting their sentences to time served. But the government appealed, arguing that the sentence reduction did not fit § 1B1.13, and even if they did, the fact that the defendants had stacked § 924(c) sentences was not extraordinary and compelling because in First Step, Congress decided against retroactivity of the First Step changes to § 924(c). Last week, the 4th Circuit sided with the defendants, in the process pushing the bounds of compassionate release to new horizons.

The 4th Circuit agreed with Brooker, Gunn and Jones that § 1B1.13 – because it refers only to compassionate release motions filed by the BOP – is not an “applicable policy statement” within the meaning of the statute, and thus may be ignored.

draco201207Beyond that, the 4th rejected the Government’s argument that there was nothing wrong with holding the defendants to their draconian sentences, ruling instead that “the district courts in these cases appropriately exercised the discretion conferred by Congress… We see no error in their reliance on the length of the defendants’ sentences, and the dramatic degree to which they exceed what Congress now deems appropriate, in finding “extraordinary and compelling reasons” for potential sentence reductions…”

The appellate holding is huge, suggesting that sentence unfairness and rehabilitation gives sentencing judges the right to make sentence reductions under § 3582(c)(1)(A)(i).

United States v. McCoy, Case No 20-6821, 2020 U.S. App. LEXIS 37661 (4th Cir., Dec. 2, 2020)

– Thomas L. Root

Two More Circuits Ease Compassionate Release Requirements – Update for November 23, 2020

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6TH AND 7TH CIRCUITS FOLLOW BROOKER; CLARIFY COMPASSIONATE RELEASE

If there has been any silver lining to the COVID-19 pandemic at all – and reasonable people can easily argue that there has not been – it might be the explosion in compassionate release motions brought by federal prisoners.

compassionate200928
As I have said before, 18 USC § 3582(c)(1)(A)(i) – which permits federal judges to reduce otherwise-final sentences when “extraordinary and compelling” reasons for doing so exist – has been a “sleeper” for three decades. Until 2018, the “catch” in this sentence reduction subsection that made it such a snoozer was the requirement that only the director of the Bureau of Prisons could bring a motion under the subsection. The Director, of course, is a bureaucrat who would not have petitioned to have his or her own mother released from federal stir.

By the way, nowhere in the statute is the motion called a “compassionate release” motion. Nevertheless, the sentence release motion has been dubbed as such by the BOP, to the point that the terms “compassionate release” and “sentence reduction” are freely interchangeable.

Prior to 2018, the number of occasions on which the BOP asked a court to release an inmate early made blue moons seem like a nightly event by comparison. Congress, tired of the BOP’s nonfeasance in using the sentence-reduction subsection, modified § 3582(c)(1)(A)(i) in the First Step Act, so that now – after paying lip service to the BOP’s former role by asking the Director to bring a sentence reduction motion no one seriously believes the BOP will bring – an inmate may file the motion directly.

Sentence reduction business picked up after First Step’s passage 23 months ago, but it took the pandemic to start the land rush. Somewhere around 4,000 sentence reduction motions claiming that COVID-19’s risk to medically-vulnerable inmates have been filed in the last eight months.

But with no history of sentence reduction adjudication, there has been blessed little judicial guidance as to how a court is to analyze such a motion, the application of the Sentencing Guidelines to sentence reduction motions, and how much detail is demanded in a decision denying such a motion. These are matters of more than academic interest.

According to 18 USC § 3582(c)(1)(A)(i), a sentence reduction motion must show the existence of extraordinary and compelling reasons for the reduction and that the reduction “is consistent with applicable policy statements issued by the Sentencing Commission.” In deciding the motion, the statute directs, the court must “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.”

details170803As is usually the case, the devil’s in the details. Lack of definitive appeals court decisions on what the subsection requires a district court to do has led to dreadfully inconsistent results, with conditions that were extraordinary and compelling to one judge are ho-hum to another. Some judges hold that the outdated Sentencing Commission guidance (it has not been changed to account for the First Step Act, because the Sentencing Commission has lacked a quorum since December 2018) must be followed, regardless of the nonsensical result such guidance dictates. And while many judges provide detail in opinions denying sentence reduction motion, others reject them with one-sentence orders that rob appeal courts of the ability to figure out the basis for the denial.

Finally, we are beginning to get appellate guidance on how district courts should decide 18 USC § 3582(c)(1)(A) petitions. In late September, the 2nd Circuit handed down United States v. Brooker, holding that the limitations of Sentencing Guideline 1B1.13 simply do not apply to sentence reduction motions brought by prisoners rather than the BOP. Last Friday, the 6th and 7th Circuits added materially to the body of law guiding decision-making on sentence reduction motions.

The 7th Circuit decision was a simple one. Tequila Gunn moved for compassionate release, arguing that because her medical condition made her more susceptible to the coronavirus, her sentence should be reduced to time served. The district court denied the motion, because the BOP Director had not determined her condition to be an “extraordinary and compelling” reason for sentence reduction, as required by USSG § 1B1.13.

This was the conundrum: 18 USC § 3582(c)(1)(A) only permits sentence reductions “consistent with applicable policy statements issued by the Sentencing Commission,” and that statement requires that the “extraordinary and compelling” reasons have to be determined by the BOP and no one else. That requirement is still in the Guidelines, the Circuit said, “because the Sentencing Commission has not updated its policy statements to implement the First Step Act. (It can’t, because it lacks a quorum.)”

negativezero201123The 2nd Circuit solved that problem two months ago in Brooker, ruling that § 1B1.13 simply does not and cannot apply to a sentence reduction motion filed by someone other than the BOP Director. The statute says a sentence reduction must be “consistent with” all “applicable” policy statements. The 7th notes that any decision is “‘consistent with’ a nonexistent policy statement. ‘Consistent with’ differs from ‘authorized by’.” Therefore, judges are free to define for themselves what constitutes an “extraordinary and compelling” reason for reduction.

Meanwhile, the 6th Circuit issued a decision last Friday that is comprehensive in its instruction. Not only does the decision follow Brooker – holding that “the passage of the First Step Act rendered 1B1.13 ‘inapplicable’ to cases where an imprisoned person files a motion for compassionate release” – it provides a template for deciding such cases and outlines the detail expected of judges in sentence reduction decisions.

The 6th held that “compassionate release hearings are sentence-modification proceedings that must follow a Dillon-style test. At step one, a court must find whether “extraordinary and compelling reasons warrant” a sentence reduction… At step two, a court must find whether “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission… At step three, § 3582(c)[(1)(A) instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by steps one and two is warranted in whole or in part under the particular circumstances of the case.”

denied190109Finally, the 6th made clear that judges ruling on sentence reduction motions must “write more extensively in § 3582(c)(1)(A) decisions where the record bears little indication that the district judge considered all the defendant’s evidence and arguments before granting or denying compassionate release,” the Circuit said. “Absent thorough record evidence of the judge’s factual decisions, district courts should not issue single-sentence or otherwise exceedingly slim compassionate release decisions or cite § 1B1.13 or the § 3553(a) factors without any analysis of their requirements,” the appellate court said. “But as long as the record as a whole demonstrates that the pertinent factors were taken into account by the district court… a district judge need not specifically articulate” its analysis of every single 3553(a) factor. Again, we look at what the judge stated about the 3553(a) factors in both the initial sentencing and the sentencing-modification proceedings when determining whether the judge satisfied her obligation to explain.”

The 7th Circuit Gunn decision is welcome for its concurrence with Brooker. The 6th Circuit Jones decision is even better, the most comprehensive opinion on application of the sentence reduction statute to date,

United States v. Jones, Case No 20-3701, 2020 US App. LEXIS 36620 (6th Cir. November 20, 2020)

United States v. Gunn, Case No 20-1959, 2020 US App. LEXIS 36612 (7th Cir. November 20, 2020)

– Thomas L. Root

‘You May Be Sick, But You’re Still a Bad Guy’ – Update for November 5, 2020

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A COUPLE OF NOTES ABOUT COMPASSIONATE RELEASE…

Two decisions last week delivered some handy reminders to people seeking “compassionate release” sentence reductions under 18 USC § 3582(c)(1)(A)(i) that (1) a defendant’s being sick or prone to get sick is not the only concern of the judge; and (2) there are procedural pitfalls for the unwary.

death200330By now, everyone knows that you have to show “extraordinary and compelling” reasons warranting a sentence reduction. These days, such reasons are usually (but not always) that you have medical conditions that puts you at risk for catching COVID (although a variety of reasons from medical to questions of fairness have supported compassionate release in the two years since defendants first got the right to bring the motions themselves in the First Step Act).

But “extraordinary and compelling” is just part of the showing you have to make. The statute also requires that the court consider the “sentencing factors” of 18 USC § 3553(a). And whether the factors favor grant of your motion is almost solely the judge’s call.

The factors are framed in such terms as consideration of “the nature and circumstances of the offense and the history and characteristics of the defendant” and “the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to provide adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with education, training, medical care, or other treatment.” But what it all comes down to whether the judge thinks the defendant has been locked up long enough.

Keith Ruffin filed a motion with his sentencing court for compassionate release, arguing that his heart problems, high blood pressure, high cholesterol, and blood clots, put him more at risk for COVID. These are all pretty good reasons, according to the Centers for Disease Control and Prevention. But his sentencing judge disagreed that his health concerns were “extraordinary and compelling reasons” for relief, and held that even if they were,  the § 3553(a) sentencing factors argued against a sentence reduction.

lockedup201105Last week, the 6th Circuit upheld denial of Keith’s compassionate release motion. It ignored Keith’s solid argument that the district court had erred in holding that because Keith could currently manage his health conditions, his risk factors were not extraordinary and compelling reasons for compassionate release. Instead, the court said, the district court is pretty much all there is in deciding that cutting Keith loose was inconsistent with the 3553(a) factors.

“These ubiquitous factors,” the Circuit said, “consider such things as the characteristics of the defendant, the nature of the offense, and various penological goals, such as the need to promote respect for law and to protect the public. This last requirement confirms an overarching point: The district court has substantial discretion. The statute says that the district court “may” reduce a sentence if it finds the first two requirements met; it does not say that the district court must do so. Even if those conditions are met, therefore, a district court may still deny relief if it finds that the “applicable” 3553(a) factors do not justify it. And in a reduction-of-sentence proceeding, as at sentencing, the district court is best situated to balance the § 3553(a) factors.”

A district court might abuse its discretion, the 6th said, if its denial was based on a purely legal mistake (such as a misreading the extraordinary-and-compelling-reasons requirement) or if it engaged in a substantively unreasonable balancing of the § 3553(a) factors. Here, the district court considered the amount of time served, his somewhat uneven prison record as evidence of the extent of rehabilitation, and the fact Keith had committed his crimes while suffering from the same health concerns he now relied on to justify compassionate release.

In another case, Art Payton’s compassionate release motion was denied by his sentencing court last July 24th. He filed a notice of appeal on August 10th, 17 days later. Last week, the 6th Circuit dismissed his appeal.

timewaits200325The deadline for an appeal in a civil case is at least 30 days after the final order is issued (and can be more in some cases). But a motion under 18 USC § 3582(c)(1)(A)(i) is a continuation of a criminal case, and thus is subject to the 14-day deadline set out in Fed.R.App.P. 4(b)(1).

Rule 4(b)(4) authorizes the district court to extend the time in which a party may appeal for up to 30 days from the end of the fourteen-day appeal period provided in F.R.App.P 4(b)(1)(A). However, the court must find “good cause” or “excusable neglect” for the failure to timely file a notice of appeal.

The Court sent the case back to the district court to determine whether Art’s excuse – that the prison has been “on an institution-wide lockdown and getting copies in this environment is problematic” – should allow him to file a belated appeal.

United States v. Ruffin, Case No. 20-5748, 2020 U.S. App. LEXIS 33689 (6th Cir Oct 26, 2020)

United States v. Payton, Case No 20-1811, 2020 U.S. App. LEXIS 33965 (6th Cir Oct 28, 2020)

– Thomas L. Root

BOP Compassionate Release Approval – Vegas Without Comp’d Drinks – Update for October 13, 2020

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THE DEFINITION OF FUTILITY

futile201012People seeking compassionate release know that 18 USC § 3582(c)(1)(A) requires that they exhaust administrative remedies first, that is, ask the warden of their facility to recommend that the BOP bring the motion on their behalf and then wait 30 days before filing.

Many prisoners have asked courts to waive the exhaustion requirement as being futile. Courts have uniformly refused, ruling – like the 6th Circuit did last June in United States v. Alam, that the exhaustion requirement “ensures that the prison administrators can prioritize the most urgent claims. And it ensures that they can investigate the gravity of the conditions supporting compassionate release and the likelihood that the conditions will persist. These are not interests we should lightly dismiss or re-prioritize.”

The courts’ confidence in the Bureau of Prisons would be laughable if the stakes were not so high. And a report last week from NBC and The Marshall Project underscores what attorneys, inmates, advocates and experts have long suspected: since March 1, wardens have denied or ignored over 98% of all compassionate release requests.

Of the 10,940 federal prisoners who applied for compassionate release in just the first two months of the pandemic, from March through May, wardens approved 1.4%, or 156. Some wardens, including those at Seagoville and Oakdale, did not respond to any request during those two months, while others deny every request presented to them. Of the 156 approved by wardens, only 11 were approved by the Central Office. Overall approval rate? One-tenth of one percent.

Here’s the breakdown: 84.8% of the requests were denied by wardens. Another 13.7% were not even answered.

Lose200615In other words, you have literally a one-in-a-thousand chance that the BOP will approve a compassionate release request. This is about the same as an inmate’s chance of dying from COVID-19 (0.09%). On the other hand, 16,000 people have received compassionate release (slightly more than 1% of the BOP population).

Notable pullouts from the data: At Elkton, an early COVID hot spot (with more than 900 cases and nine deaths), the warden denied 866 out of 867 requests for compassionate release. At FCI Terminal Island, 694 prisoners had tested positive by the end of May, the warden approved five of the 256 compassionate release requests filed between March and May.

A BOP spokesman told The Marshall Project that “we can share that the BOP has continued to process compassionate release requests as directed by the First Step Act and agency policy.”

United States v. Alam, 960 F.3d 831 (6th Cir. 2020)

NBC News/The Marshall Project, Thousands of Sick Federal Prisoners Sought Compassionate Release. 98 Percent Were Denied. (October 7, 2020)

Rochester, Minnesota, Post-Bulletin, Cases Continue in Federal Prison, Compassionate Release Hard to Get (Oct 9)

– Thomas L. Root

2nd Circuit Declares “Open Season” for Inmates Seeking Compassionate Release – Update for September 28, 2020

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2ND CIRCUIT REINVENTS COMPASSIONATE RELEASE TO UNLEASH JUDGES’ DISCRETION

The government has been fighting 18 U.S.C. § 3582(c)(1)(A) compassionate release motions hammer and tong ever since inmates won the right to file such motions themselves in the First Step Act. (Before that, only the BOP could file such a compassionate release motion, and – unsurprisingly – the BOP had little interest in doing so, but that’s another story).

compassionaterelease190517A great example of government hard-heartedness: Reason magazine reported last week that the U.S. Attorney in Miami “unsuccessfully tried to argue that an 80-year-old inmate serving a life sentence for marijuana offenses shouldn’t be released because COVID-19 is just ‘one more way to perish in prison’.”

U.S. District Judge Donald Graham disagreed, granting compassionate release to an inmate – who was 27 years into his life sentence – and was wheelchair-bound by arthritis and heart disease. Reason cited the Miami case as an illustration of its point that while the Attorney General has urged the BOP to use compassionate release, home confinement, and other measures to get elderly and at-risk inmates out of federal prison, “the rollout of Barr’s directive has been maddeningly inconsistent…”

Reason quoted FAMM president Kevin Ring as saying, “Title 9 of the U.S. Attorney’s Manual governs criminal proceedings, and there is no provision there that requires you to be an asshole.”

compassionate200928Not that that has stopped the government. One recurring government argument against compassionate release is that U.S.S.G. § 1B1.13 only lists four reasons for compassionate release. If you don’t fit into reasons (1) through (3) – and hardly anyone does – you have to rely on the fourth, which says, “As determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described” in the other three reasons.” The government has argued that for any reason other than an inmate’s terminal illness (such as having a COVID risk factor), a court cannot grant compassionate release unless the BOP has itself made the motion. “A sizable minority” of courts have agreed.

Last week, the 2nd Circuit drove a stake through the heart of that argument. Jeremy Zullo sought compassionate release. The court denied him, ruling that his reasons – sentence unfairness, rehabilitation and government violation of his plea agreement – had not been found to be “extraordinary and compelling” under 18 U.S.C. § 3582 by the director of the BOP, and thus could not support a sentence reduction.

The Circuit reversed, holding that § 1B1.13 does not apply to post-First Step sentence reduction motions:

Application Note 4 says that ‘[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). And we conclude that after the First Step Act, this language must be read not as a description of the former statute’s requirements, but as defining the motions to which the policy statement applies. A sentence reduction brought about not ‘upon motion by the Director of the Bureau of Prisons”’ is not a reduction ‘under this policy statement.’ In other words, if a compassionate release motion is not brought by the BOP Director, Guideline 1B1.13 does not, by its own terms, apply to it. Because Guideline 1B1.13 is not “applicable” to compassionate release motions brought by defendants, Application Note 1(D) cannot constrain district courts’ discretion to consider whether any reasons are extraordinary and compelling.

compassion160124This holding is nothing short of astounding, sweeping away much of the compassionate release jurisprudence that has been written in the last 20 months. It will likely open compassionate release motions to people who have compelling arguments, but not claims that can be pigeonholed into the four categories in U.S.S.G. § 1B1.13.

Reason.com, Federal Prosecutors Argue COVID-19 Is Just ‘One More Way to Perish in Prison’ (Sept 25)

United States v. Brooker, Case No. 19-3218-CR, 2020 U.S. App. LEXIS 30605 (2d Cir. Sept 25, 2020)

– Thomas L. Root

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.”

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“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.

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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