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THE DEFINITION OF FUTILITY
People 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.
In 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.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
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).
A 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.”
Not 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.
This 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.
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
The 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.”
“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.
No 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.
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
A 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.
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.”
Incidentally, 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.
It’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.
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.
The 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.
Several 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.”
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
Before 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.
Edwin 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…”
The 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.”
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
Last 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)
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)
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.
Instead, 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.
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
The 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.
To 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.
Last 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.”
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THREE WINS AND A LOSS AT THE 6TH CIRCUIT
On 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.
In 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.”
Inmate 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 § 2241habeas 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’.”
This 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)
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 Acthas sparked widespread criticism of the BOP’s management of the home detention program.
Cohen, 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.”
Last 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 Actrelease.
“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 itannouncedthat 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.
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.
People 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.
In 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).
