Tag Archives: compassionate release

Circuit Split Deepens on Using Sentence Law Changes in Compassionate Release Motions – Update for September 19, 2022

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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.

9TH CIRCUIT ALLOWS FIRST STEP CHANGE IN § 924(c) STACKING TO SUPPORT COMPASSIONATE RELEASE

In 2007, Howard Chen was busted with a distribution-sized amount of MDMA in his car. Later, the DEA found more MDMA, two guns and cash at his house.

mdma220919A jury convicted Howie of six drug-related counts and two 18 USC § 924(c) counts for possessing a gun during and in furtherance of a drug crime. He got 48 months for the drug counts, 60 more months for the first gun offense and 300 months for the second one: a total of 34 years for a fairly garden-variety non-violent drug case.

In late 2020, Howard filed a motion for sentence reduction, seeking compassionate release for – among other reasons – that the First Step Act changed 18 USC § 924(c) so that he would not have to get a minimum of 300 months for the second gun charge. Although the change was not retroactive, Howie contended that the unfairness of how the 2007 version of the statute mandated 300 months but the current statute did not was an extraordinary and compelling reason for granting him a sentence reduction.

The district court denied the compassionate release motion, holding that because Congress did not make the 18 USC § 924(c) change retroactive, it could not be an extraordinary and compelling reason for grant of compassionate release under 18 USC § 3582(c)(1)(A).

Last week, the 9th Circuit reversed, holding that a district court may consider the First Step Act’s non-retroactive changes to sentencing law – in combination with other factors particular to the individual – when finding extraordinary and compelling reasons for a sentence reduction.

circuitsplit220919Bloomberg said, “The opinion deepens a circuit split on the bipartisan 2018 reform law that has generated much litigation since then-President Donald Trump signed it.”

The 3rd, 7th, and 8th Circuits have ruled that district courts may not consider non-retroactive sentence changes made by First Step, whether offered alone or in combination with other factors, in deciding compassionate release motions. Those circuits reasoned that Congress explicitly made the sentencing changes non-retroactive and that § 3582(c)(1)(A) “should not provide a loophole to get around explicit non-retroactivity.”

For instance, the 3rd Circuit ruled, “We will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.” The 7th held that “the discretionary authority conferred by § 3582(c)(1)(A)… cannot be used to effect a sentencing reduction at odds with Congress’s express determination embodied in… the First Step Act that the amendment to § 924(c)’s sentencing structure appl[ies] only prospectively.” The 8th said, “The compassionate release statute is not a freewheeling opportunity for resentencing based on prospective changes in sentencing policy or philosophy.”

The 3rd and 7th Circuits still allow district courts hearing compassionate release motions to consider First Step’s changes to stacked § 924(c) sentencing when analyzing § 3553(a) sentencing factors.

dontthink220919The 1st, 4rth, and 10th Circuits, on the other hand, have all held that district courts may consider First Step’s non-retroactive changes to penalty provisions, in combination with other factors, when determining whether extraordinary and compelling reasons for compassionate release exist in a particular case. The Circuits have held that the statutes directly addressing “extraordinary and compelling reasons” don’t prohibit district courts from considering non-retroactive changes in sentencing law; and (2) a sentence reduction under § 3582(c)(1)(A)’s “extraordinary and compelling reasons” is “entirely different from automatic eligibility for resentencing as a result of a retroactive change in sentencing law.”

The 6th Circuit swings both ways. In United States v. Jarvis, the Circuit held that the “district court, moreover, correctly concluded that it lacked the authority to reduce Jarvis’s sentence based on a nonretroactive change in the law.” But in United States v. Owens, the panel said that the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied can be considered, along with other factors, to be an extraordinary and compelling reason for a reduction.

In Howard’s case, the 9th said,

Congress has only placed two limitations directly on extraordinary and compelling reasons: the requirement that district courts are bound by the Sentencing Commission’s policy statement, which does not apply here, and the requirement that ‘rehabilitation alone’ is not extraordinary and compelling. Neither of these rules prohibits district courts from considering rehabilitation in combination with other factors. Indeed, Congress has never acted to wholly exclude the consideration of any one factor, but instead affords district courts the discretion to consider a combination of “any” factors particular to the case at hand… To hold that district courts cannot consider nonretroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done.

United States v. Chen, Case No 20-50333 (9th Cir., September 14, 2022)

Bloomberg, Compassionate Release Gets Another Look Under First Step Act (September 14, 2022)

– Thomas L. Root

Sentence Reduction Decisions – Two Outta Three Ain’t Bad – Update for September 8, 2022

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

Three Circuits Hand Down Late August Sentence Reduction Decisions

endofsummer220908Traditionally, not much gets done in August, and that rule applies even more to the week before Labor Day. People are returning from vacation or grabbing some extra days to tack on the long weekend, while those stuck in the office are afflicted with end-of-summer ennui.

Last week, that rule didn’t apply to three courts of appeal, all of which handed down rulings on the limits of compassionate release under 18 USC § 3582(c)(1)(A) and First Step Act Section 404 sentence reductions. Two were good for prisoners; one was not.

First Circuit Punts: Al Trenkler was convicted of a car bombing 30 years ago. The jury found Al had harbored only an intent to destroy property, but the trial judge inferred from the evidence an intent to kill and imposed a life sentence. But the law required life sentences to be assigned by the jury. The error – which everyone acknowledges – has never been fixed because of procedural roadblocks too complex to be explained here.

Al filed for compassionate release 18 months ago, based on his health and COVID-19 pandemic as well as his claim that questions surrounded his guilt; the fundamental unfairness of his conviction; sentence disparity and the unlawfully-imposed life sentence.

While Al did not sufficiently persuade the district court that questions surrounding his guilt, fundamental unfairness, and co-defendant sentence disparity constituted “extraordinary and compelling” reasons for compassionate release, the court decided the sentencing error did. Noting that Al had no other avenue for relief from the sentencing error, the district court reduced his sentence from life to 41 years.

The government appealed. Last week, the 1st Circuit sent the case back to the district court.

While the appeal was pending, the 1st ruled in United States v. Ruvalcaba that while district courts may generally consider “any complex of circumstances” in deciding that a prisoner should be granted compassionate release, that doesn’t mean that “certain reasons, standing alone, may be insufficient as a matter of law when measured against the ‘extraordinary and compelling’ standard… After all, it is possible that the whole may be greater than the sum of its parts, and reasons that might not do the trick on their own may combine to constitute circumstances that warrant a finding that the reasons proposed are, in the aggregate, extraordinary and compelling.”

howdidhedothat220908In Al’s case, the Circuit said, “it is clear the district court found the sentencing error constituted an extraordinary and compelling reason warranting a sentence reduction. But its analytical path is susceptible to multiple interpretations when it comes to how it navigated the list of reasons Trenkler offered. On one hand, we can appreciate the possibility that the district court discarded Trenkler’s other proposed reasons one by one but… deemed the circumstances surrounding the sentencing error alone to meet the “extraordinary and compelling” criteria. But we can also see how discarding all proposed reasons except one could represent a singular reason-by-reason analysis, not a review of the individual circumstances overall. In the end, our careful review of the district court’s thorough (but pre-Ruvalcaba) decision leaves us uncertain as to whether it took a holistic approach when reviewing Trenkler’s proposed reasons and ultimately concluding that the sentencing error constituted a sufficiently extraordinary and compelling reason to grant relief.”

The 1st decided that “given the importance of the issues and the gravitas of abuse-of-discretion review, we conclude that the prudent approach is to remand to afford the district court the opportunity to reassess the motion with the benefit of Ruvalcaba’s any-complex-of-circumstances guidance.”
3rd Circuit Reverses Sec 404 Resentencing: Clifton Shields was eligible for a Fair Sentencing Act sentence reduction under Section 404 of the First Step Act. He argued that his rehabilitation and the fact that he couldn’t be found to be a career offender if he were sentenced today (because courts now looked at some predicate offenses differently than they did when he was sentenced) meant his sentence should be reduced from 360 months to time served.

The district court cut his sentence to 262 months, but refused to consider “whether under current law Shields would be considered a career offender” because it believed that “[t]he First Step Act does not permit the court to consider other statutory or sentencing guideline amendments enacted since the date the defendant committed his or her offense.” The district court held that the reduced sentence it was imposing, at the bottom of Cliff’s amended Guidelines range, reflected its consideration of those factors as well as the documents Cliff had submitted as evidence of rehabilitation.

Last week, the 3rd Circuit reversed the district court, holding that district courts are authorized to take into account, at the time of resentencing, any changed circumstances, including post-sentencing developments. Noting that the Supreme Court’s Concepcion decision last June acknowledged “the broad discretion that judges have historically exercised when imposing and modifying sentences, and acknowledged that district courts deciding Sec 404(b) motions regularly consider evidence of… unrelated, nonretroactive Guidelines amendments when raised by the parties,” the Circuit said that while a district court is not required to accept arguments about intervening changes in the law, it should “start with the benchmark Guidelines range recalculated only to the extent it adjusts for the Fair Sentencing Act and should consider Shield’s arguments that he no longer qualifies as a career offender and his renewed objections to the firearm enhancement and the drug weight… used to calculate his Guidelines range.”

2nd Circuit Outlier: Victor Orena filed for compassionate release, arguing in part that he had new evidence that called into question the validity of his conviction. The district court denied the § 3582(c)(1)(A)(i) motion, refusing to consider the new evidence.

outlier220908In a June decision that the 2nd Circuit affirmed again last week, the appellate court upheld the denial. The Circuit ruled that when considering a motion for a § 3582(C)(1)(A)(i) sentence reduction, “a district court does not have discretion to consider new evidence proffered for the purpose of attacking the validity of the underlying conviction in its balancing of the 18 USC § 3553(a) factors. Facts and arguments that purport to undermine the validity of a federal conviction must be brought on direct appeal or pursuant to 28 USC § 2255 or 2241.”

The problem with this approach is that a district court must consider the sentencing factors of 18 USC § 3553(a), including whether the sentence reduction will still represent fair and just punishment for the offense. What the defendant ought to have been sentenced to (or what he or she would be sentenced to if sentenced today) seems like the logical starting point for determining whether the reduction being sought remains consistent with the sentencing factors.

When the Circuit is confronted with whether a district court must assume that a sentence that could not lawfully be imposed today is the starting point for measuring consistency with the sentencing factors, we might get a decision that is more like Trenkler and Shields.

United States v. Trenkler, No. 21-1441, 2022 U.S. App. LEXIS 24290 (1st Cir. Aug. 29, 2022)

United States v. Shields, No. 19-2717, 2022 U.S. App. LEXIS 24719 (3d Cir. Sep. 1, 2022)

United States v. Amato, 37 F.4th 58 (2d Cir. 2022)

– Thomas L. Root

“Supreme Court – Meh,” 7th Circuit Says – Update for July 19, 2022

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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.

‘CONCEPCION’? WHAT ‘CONCEPCION?’ 7TH CIRCUIT ASKS

When the Supreme Court handed down the Concepcion v. United States decision a few weeks ago, I thought that the holding – that district courts’ discretion to consider any relevant information in resentencing is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence – would resolve a circuit split surrounding what factors can serve as the basis for compassionate release.

Sentencestack170404I was especially focused on cases in which courts were asked to rely on non-retroactive changes in sentencing law – such as the First Step Act’s ban on § 924(c) “stacking” – as a basis for compassionate release. After all, nothing in the text of 18 USC § 3582(c)(1)(a) supports the notion that non-retroactive changes are excluded from being “extraordinary and compelling.”

Who could possibly disagree?

The 7th Circuit, maybe. Last week, that Circuit rejected reliance on non-retroactive changes in statute as a basis for compassionate release. Christopher King was serving a mandatory minimum sentence for drug distribution that had been lowered by the First Step Act. He argued the statutory change – while not retroactive – was an extraordinary and compelling reason for a sentence reduction.

extraordinary220719The 7th disagreed, holding that when deciding whether “extraordinary and compelling reasons” justify a prisoner’s compassionate release, judges must not rely on non-retroactive statutory changes or new judicial decisions.” The Circuit ruled that “there’s nothing ‘extraordinary’ about new statutes or caselaw, or a contention that the sentencing judge erred in applying the Guidelines; these are the ordinary business of the legal system, and their consequences should be addressed by direct appeal or collateral review under 28 U.S.C. § 2255.”

The 7th observed that

Concepcion… held that, when substantive changes made by the First Step Act (principally reductions in the authorized ranges for crack-cocaine crimes) entitle a prisoner to be resentenced, the judge may consider everything that would have been pertinent at an original sentencing. We may assume that the same would be true if a district judge were to vacate a sentence on application for compassionate release and hold a full resentencing proceeding. But… the threshold question [is] whether the prisoner is entitled to a reduction under § 3582(c)(1)(A)… The First Step Act did not create or modify the “extraordinary and compelling reasons” threshold for eligibility; it just added prisoners to the list of persons who may file motions. We take the Supreme Court at its word that Concepcion is about the matters that district judges may consider when they resentence defendants. So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an “extraordinary and compelling” reason for release.

7thConcepcion220719Writing in his Sentencing Law and Policy blog, Ohio State law professor Doug Berman quite rightly complained, “[T]his new King decision reiterates the misguided notion that district judges are categorically excluded from ever considering ‘non-retroactive statutory changes or new judicial decisions’ even though Concepcion stressed that the ‘only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution.”

Concepcion v. United States, Case No 20-1650 (Supreme Court, June 27, 2022)

United States v. King, Case No 21-3196, 2022 U.S.App. LEXIS 18987 (7th Cir., July 11, 2022) 

Sentencing Law and Policy, Seventh Circuit panel refuses to reconsider its extra-textual limit on compassionate release in light of Supreme Court’s Concepcion decision (July 11, 2022)

– Thomas L. Root

BOP: Not a ‘Common Jailor’ But A Pretty Indifferent One – Update for June 3, 2022

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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.

WHERE HAVE WE HEARD THIS ONE BEFORE?

Complaints about the BOP healthcare system are as common as kvetching about the food it serves. There may be a reason for that.

chickie220603Vincent “Chickie” DeMartino, serving the final 30 months of a 300-month sentence for an attempted mob hit, sought compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) because of his deteriorating health – in particular, complications with his right eye – and because of the BOP’s “cavalier attitude” in addressing his worsening medical problems.

Vince argued that his poor health and the BOP’s refusal to do anything about it constituted the “extraordinary and compelling” reasons required by the statute for a reduction of his sentence to time served.

Last week, the United States District Court for the Eastern District of New York agreed. As the Daily News colorfully put it

A Brooklyn judge sprang a violent mobster from prison because he said the federal Bureau of Prisons did a lousy job taking care of the wiseguy’s medical problems.

Federal Court Judge Raymond Dearie issued a scathing ruling Thursday, saying the feds weren’t competently treating made man Vincent “Chickie” DeMartino’s maladies. The goodfella had more than two years left of his 25-year sentence for an attempted hit on a fellow Colombo family member.

The Court found that Vince suffered from high blood pressure which puts him at severe risk of stroke and numerous ophthalmologic issues. Vince said he was essentially blind in his right eye and had 20/400 vision overall, which made him legally blind.

healthcare220224What made his condition “all the more extraordinary and compelling,” the Court held, was “the BOP’s lack of responsiveness and candor with respect to his medical conditions.” Despite the BOP being aware of the condition, the District Court said, “the record reflects a consistent pattern on the part of the BOP of downplaying Mr. DeMartino’s conditions and delaying treatment. Despite the severity of his ocular conditions, it has been a herculean task for Mr. DeMartino to see an ophthalmologist.”

A month ago, the Court told the parties that Vince required “immediate appropriate care.” The government promised the Court that Vince would see an outside specialist right away. That of course did not happen. Vince’s prior visits to the eye doc had been canceled, according to the BOP, because the facility Health Administrator asserted that the “retina specialist does not need to see the defendant again unless he is having further complications.”

This statement, charitably put, lacked the kind of candor that the government would have demanded from Vince, were the tables turned.. The Court found the statement to be “misleading, as the Health Administrator’s note omitted reference to the ophthalmologist’s recommendation that Mr. DeMartino undergo pars plana vitrectomy surgery.”

When the Court ordered the Government and BOP to provide clarification about Vince’s need for surgery from the same ophthalmologist who had recommended surgery, the Government pulled the old “bait-and-switch.” It provided a memorandum from an optometrist – not an ophthalmologist and definitely not the one who had recommended the surgery – to support the appalling lack of care. The BOP optometrist said Vince’s surgery was unnecessary, but then qualified his opinion by admitting that he could not “directly determine the need, or lack thereof, for surgery” and would need to “defer questioning related to a need for surgery and/or the urgency of surgery to an ophthalmologic surgeon.”

That’s sort of like saying “it’s definitely not going to rain tomorrow, but I have not seen a weather forecast and even if I had, I’m not a meteorologist and I really have no idea whether what I just said is right or not.”

healthbareminimum220603“All told,” the court ruled, “this record leaves the Court with the impression that the BOP has undertaken the bare minimum of care for Mr. DeMartino, limiting its efforts to ensuring that he does not require emergency surgery, but minimizing the fact that his vision is failing and refusing to implement any meaningful plan to monitor or treat the conditions in the longer term… The BOP is not a common jailor. Theirs is a far more challenging and vital responsibility. Human beings are entrusted to their care for decades on end. There is no excuse for inaction or dissembling and, in this Court’s view, no alternative to immediate release.”

Order (ECF 276), United States v. DeMartino, Case No 1:03cr265 (EDNY, May 26, 2022)

– Thomas L. Root

Cleaning Up Before The Long Weekend – Update for May 27, 2022

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IT’S ACADEMIC

Study Finds Judges Inconsistent in Granting Compassionate Release: lawyerjoke180807Only a lawyer (or brilliant law student in this case) could require 44 pages and 194 footnotes to conclude the obvious: district courts are all over the map on granting or denying compassionate release due to the inmate’s vaccination status.

A Columbia Law Review Note published last week finds “disparate outcomes resulting from the vast judicial discretion within the compassionate release space” on the treatment of compassionate release movants on the basis of their vaccination status. The Note “argues that the current system results in inequitable geographical-based outcomes” and “calls on the United States Sentencing Commission to offer guidance to federal courts on how to approach compassionate release requests in the context of the First Step Act and the ongoing COVID-19 pandemic.”

Columbia Law Review, Unequal Treatment: (In)compassionate Release from Federal Prison in the Context of the COVID-19 Pandemic and Vaccine (May 13, 2022)

Have You Kissed Your Public Defender Today? An Urban Institute study released last week found that defendants represented by Criminal Justice Act panel attorneys (those appointed by the court) and private counsel have 18-25% greater odds of being sent to prison once convicted than those represented by a federal public defender. What’s more, “individuals represented by private and CJA panel attorneys received 4-8% longer sentences than those who used a public defender.”

lovelawyer220527

The study concludes that because federal public defenders have “specific expertise in federal criminal cases and more familiarity with the judges and prosecutors,” they may be “more likely to encourage their clients to take plea deals but may also secure their clients favorable sentencing outcomes.”

Urban Institute, Counsel Type in Federal Criminal Court Cases, 2015-18 (May 18, 2022)

– Thomas L. Root

A Couple of Short Takes – Update for May 19, 2022

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TIME ENOUGH FOR A QUICKIE…

Quickie #1 – FAMM Lobbies for Compassionate Release for Dublin Victims: In a letter sent last week to Deputy Attorney General Lisa Monaco, FAMM President Kevin Ring asked the Dept of Justice to recommend compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) to female Bureau of Prisons inmates who suffered sexual assault at hands of FCI Dublin corrections officials and officials.

compassion210903The letter notes that the BOP has statutory authority under U.S.S.G. §1B1.13 to identify “’other reasons,’ that alone or in combination with recognized criteria merit compassionate release. Sexual assault by BOP personnel of incarcerated women is an exceptional abuse of trust. The trauma resulting from such victimization is without doubt an extraordinary and compelling reason justifying consideration for compassionate release.”

FAMM, Letter to Lisa Monaco (May 9, 2022)


supervisedrevoked181106Quickie # 2 – Supervised Release Violations as Double Punishment: In a first comprehensive analysis of “criminal violations” and supervised release – cases where people violate their supervision by committing new crimes – Penn State law professor Jacob Schuman argues that revocation for criminal conduct inflicts unfair double punishment and erodes constitutional rights. When defendants on supervised release commit new crimes, he writes, prosecution without revocation is a better and fairer way to punish them.

Virginia Law Review, Criminal Violations (Feb 15, 2022)

– Thomas L. Root

Compassionate Release Numbers Show Gross Disparities – Update for May 17, 2022

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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 RELEASE AIN’T WHAT IT USED TO BE

funwithnumbers170511A Sentencing Commission report issued last week chronicled a slow but consistent slide in the rate of compassionate release motions being granted by district courts, even while highlighting how inconsistencies among federal courts are resulting in gross sentence disparities.

The First Step Act granted the right to prisoners to file their own motions for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). For the 30 years prior to that, only the Bureau of Prisons was permitted to file on behalf of the prisoner, and – unsurprisingly – the BOP was greatly disinclined to ask any court to let any of its wards go home early.

In the year following First Step’s passage, around 450 compassionate release motions were filed. But in April 2020, with onset of the COVID-19 pandemic, the numbers skyrocketed. Nearly as many compassionate release motions were filed in April 2020 (436) as in all of the 15 prior months. By July 2020, over 1,500 a month were being submitted.

Everyone was scared. But as COVID became more common, the monthly numbers declined. In September 2020, 1,363 were filed, with 19% granted. A year later (September 2021), 456 motions were filed with 11% granted.

The report highlights striking variations in grant rates among the 94 federal districts. Oregon repudiates its nickname of The Land of Hard Cases, remaining the best place, statistically, to file. Of 144 motions, 63% have been granted. The back of the pack includes Western North Carolina (only 3.4% of 534 granted), Eastern Texas (2.0% of 349 granted) and Southern Georgia (2.0% of 248 granted). The average grant rate since the First Step Act permitted the filing of compassionate release motions by inmates themselves is 17.2% out of 3,867 motions.

oregon220517Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog that “the District of Maryland — with a total of 211 sentencing reduction motions granted (though “only” a grant rate of 32.7% with 646 motions) — granted more of these motions than all the courts of the Fifth Circuit!” The 5th Circuit has the lower grant rate (9.3% of the 2,197 total brought) of all the circuits.

Not surprisingly, the longer one has been in prison, the better the chances for compassionate release. People with sentences over 20 years had a 26.2% grant rate, compared to a 3.8% grant rate for people with a sentence of 24 months or fewer. But here’s a strange inversion: people with lowest criminal history had a 30.0% grant rate, while those with a moderate history only had a 12% grant rate. But inmates with the worst history had a grant rate of 29.2%, almost as good as those with no prior convictions.

But the most beneficial information in the Report is the list of reasons that compassionate release motions were denied. Courts found that 18 USC § 3553(a) sentencing factors and the need to protect the public required denial in 33.1% of all compassionate release motions. Behind that were the movants’ failure to show they were at risk from COVID factors or a serious medical condition (26.4%), followed by failure to exhaust administrative remedies (17.9%). These amounted to nine out of ten reasons for denial (the courts failed to list reasons in 10% of the cases).

dice161221If it provides no other benefit, the Report suggests that compassionate release – far from being the relief First Step Act intended – has become an enormous geographical crapshoot, and a driver of sentence disparity.

US Sentencing Commission, Compassionate Release Data Report – Fiscal Years 2020 to 2021 (May 8, 2022)

Sentencing Law and Policy, US Sentencing Commission releases latest detailed “Compassionate Release Data Report” (May 9, 2022)

– Thomas L. Root

Courts Questioning BOP Medical Care As COVID Surge Loom – LISA Newsletter for May 9, 2022

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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 SURGE FORECAST AS BOP’S RESPONSE QUESTIONED

The Biden administration is warning the nation could see 100 million COVID infections and a potentially significant wave of deaths this fall and winter, driven by new omicron subvariants that have shown a troubling ability to overcome vaccines and natural immunity.

The projection is part of an Administration push to persuade lawmakers to appropriate billions more to purchase a new tranche of vaccines, tests and therapeutics, released last Friday as the nation is poised to reach a milestone of 1 million COVID deaths sometime this week.

omicron211230Omicron variants BA.4 and BA.5 are causing a spike in cases in South Africa, where it’s winter, continuing a pattern of semi-annual COVID-19 surges there. The genetic makeup of these variants — which allows them to evade immunity from previous infection — and the timing of their emergence in the Southern Hemisphere point to a surge in the United States in the coming months, says UCLA Health clinical microbiologist Dr. Shangxin Yang.

The US also should expect a summer coronavirus surge at least across the South. Last week, former White House COVID response task force coordinator Deborah Birx said, “We should be preparing right now for a potential surge in the summer across the southern United States because we saw it in 2020 and we saw it in 2021.” With more infections come more opportunities for the virus to mutate, according to WHO’s Maria Van Kerkhove.

As it is, an anticipated summer surge of COVID in the south may have begun. The seven-day national average of new infections more than doubled in five weeks from 29,000 on March 30 to nearly 71,000 last Friday. White House officials have said they’re concerned that much of the nation’s supply of antivirals and tests will be exhausted as a result of the anticipated increase in cases in the South. Without those tools, they say the country would be unprepared for a fall and winter surge, and deaths and hospitalizations could dramatically increase.

healthcare220224Predictions of future COVID waves come as the Bureau of Prisons’ COVID medical care is subjected to fresh criticism. Healthcare news outlet Stat reported last week that since November 2020, the BOP “used just a fraction of the antiviral drugs they were allocated to keep incarcerated people from getting seriously ill or dying of Covid-19.” Stat said internal BOP records show the Bureau used less than 20% of the stock “of the most effective antiviral drugs for treating COVID.”

In the case of Pfizer’s effective antiviral pill, Paxlovid, BOP prescription records over the two years ago “include just three prescriptions for Paxlovid, despite the fact that the drug is easy to administer and has been proven to significantly reduce hospitalization and death from Covid-19.”

Two compassionate release grants last week under 18 USC § 3582(c)(1)(A)(i) on opposite sides of the nation suggest that district courts may be tiring of the BOP’s blandishments that its medical care is adequate. In Oregon, a granted early release to James Wood, a 53-year-old man who had served 68% of his sentence for two bank robberies. The court held Jim had served significant periods during the pandemic without access to his psychiatric medication or received medication that made his symptoms worse.

The judge called Jim’s time at FCI Sheridan during the pandemic “an excruciating experience.” In addition to frequent lockdowns, which applied to all inmates, Jim suffered an injury that prison medical services failed to treat. The injury festered, but Jim was finally able to knock back the infection by pouring hot water on the wound.

The government argued that medical records did not substantiate that Jim had been denied treatment. He replied that that was unsurprising inasmuch as the medical staff refused to do anything, a refusal that would not have generated a record.

toe220509Meanwhile, a Connecticut federal court released Tim Charlemagne, who was doing time for a drug offense, after finding “the record… demonstrates that Mr. Charlemagne has received inadequate care for his serious medical conditions since the day he began his period of incarceration.”

Those conditions included morbid obesity, high blood pressure, and diabetes. Tim didn’t receive the foot care in prison that his podiatrist recommended when he was sentenced, and all the toes on his right foot had been amputated as a result, according to the Federal Public Defender. The government argued that Tim was being transferred to a medical center from FCI Schuykill (where he presumably would get better care), but it admitted no date set was set for the transfer.

Tim had served 14 months of his 41-month sentence. He will do another nine months on home confinement before beginning his supervised-release term.

Both of these decisions are noteworthy because they combine a general acknowledgment of miserable prison conditions during the pandemic with specific findings that BOP healthcare had failed the inmates seeking compassionate release. The cases suggest that successful compassionate release motions as COVID surges again will focus on an inmate’s individual allegations of inadequate medical care.

Washington Post, Coronavirus wave this fall could infect 100 million, administration warns (May 6, 2022)

US News, New Omicron Subvariant Spreading in US as Coronavirus Cases Increase (May 2, 2022)

UCLA Health, New omicron variants and case surge in South Africa portend summer rise in COVID-19 cases here (May 6, 2022)

Stat, Prisons didn’t prescribe much Paxlovid or other Covid-19 treatments, even when they got the drugs (May 5, 2022)

Portland Oregonian, Judge grants compassionate release to convicted bank robber, calls his time at Oregon’s federal prison ‘excruciating experience’ (May 6, 2022)

United States v. Wood, Case No 3:18-cr-00599 (D.Ore, compassionate release granted May 6, 2022)

Windsor Journal-Inquirer, Judge orders release of Windsor man in Enfield OD death case (May 6, 2022)

United States v. Charlemagne, Case No 3:18-cr-00181, 2022 U.S. Dist. LEXIS 82270 (D.Conn, May 6, 2022)

– Thomas L. Root

Acquitted Conduct No Panacea for Current Prisoners – Update for April 14, 2022

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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.

ACQUITTED CONDUCT AND THE HOPEMONGERS

The House of Representatives’ passage of the Prohibiting Punishment of Acquitted Conduct Act of 2021 (H.R. 1621) ten days ago appears to be chum on the water for some hope-mongering sharks who prey on inmates.

shark170607I already have heard from one person who is busy hiring an outside “research” service to evaluate his case to tell him whether he’ll benefit from the Prohibiting Punishment of Acquitted Conduct Act. For everyone’s benefit, here are two things to keep in mind.

First, the Act has not passed the Senate. It may. It may not. It may pass, but with different text, and then a conference committee will have to work out compromise text.

Second, the Act will apply to very few cases. It does not necessarily apply to relevant conduct. It does not apply to conduct not mentioned to a jury. If you did not have a jury trial, it does not apply (unless you were acquitted of the same conduct in a prior federal or state trial).

Finally, it is very unlikely that the Act will be retroactively applied to people already sentenced. The bill does not specify that it applies retroactively. Such bills are usually presumed not to be retroactive. Read 1 USC § 109 and Dorsey v. United States before you decide the courts will open their doors to post-conviction motions seeking resentencing because Prohibiting Punishment of Acquitted Conduct Act passes.

No reputable legal services company will take any money now to tell you whether you can get any sentencing benefit from the Prohibiting Punishment of Acquitted Conduct Act. It’s just too premature.

Prohibiting Punishment of Acquitted Conduct Act of 2021 (HR 1621)

Dorsey v. United States, 567 US 260 (Supreme Ct., 2012)

SPEAKING OF PREMATURE…

George Fower was sentenced to 24 months, but before he self-surrendered to the Bureau of Prisons, he sought compassionate release under 18 USC § 3582(c)(1)(A)(i) on the grounds he was very susceptible to COVID. Because he was not yet in prison, George found the statute’s administrative exhaustion requirement challenging, but he wrote to the warden of the prison to which he was to surrender in a month’s time, and later to the BOP’s Designation and Sentence Computation Center, the Regional Director and the Bureau of Prisons General Counsel.

Thirty days later (while still not in custody), George filed his compassionate release motion. The district court denied it, holding in part that “compassionate relief is not available to a defendant not in custody.”

Last week, the 9th Circuit agreed. It noted that the First Step Act amended the compassionate release statute only to allow the prisoner, rather than requiring BOP, to file the motion. At no time in the history of the “matrix of statutory and other enactments,” the Circuit said, were the BOP’s powers ever extended to grant it jurisdiction over those who had yet to commence their incarceration.

compassion160208It makes sense that the BOP has no place to play in compassionate release prior to a prisoner’s incarceration, the 9th noted. “The statute states that the defendant’s request must be addressed to ‘the warden of defendant’s facility,’ which cannot be known until there has been a designation by the BOP. This is further evidence that the statute contemplates that the defendant must be in a BOP facility before qualifying for compassionate relief.”

The 9th suggests that before a defendant self-surrenders, he or she may ask the district court to delay sentencing or to extend the surrender date.

United States v. Fower, Case No 21-50007, 2022 U.S. App. LEXIS 8919 (9th Cir., April 4, 2022)

– Thomas L. Root

COVID Isn’t Over, And Neither Should Be Compassionate Release – Update for March 22, 2022

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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 GIVE UP ON COMPASSIONATE RELEASE

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

deadcovid210914Really? Is COVID over? Well, that quote would suggest it, except that Biden said that about nine months ago. A month after the Prez did his victory dance, COVID Delta blasted through FCI Texarkana, followed by the rest of the BOP. And that was only a prelude to Omicron, that at one point had 9,500 inmates sick at the same time.

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

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

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

quit201208Prisoner numbers are the only thing going up. About 6,200 BOP employees left the agency in the last two years, which works out to almost nine people a day. 8.7 employees departing every day during that time period. The BOP refuses to give precise current numbers, but Insider magazine reported that from July 2021 to March 2022, it hired fewer than 2,000 replacements.

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

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

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

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

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

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

compassionlimit220322The Circuit, following its February decision in United States v. Crandell, held that “that a non-retroactive change in law, whether offered alone or in combination with other factors, cannot contribute to a finding of ‘extraordinary and compelling reasons’ for a reduction in sentence under § 3582(c)(1)(A).”

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

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

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

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

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

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

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

– Thomas L. Root