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‘Compassionate Release’ is as Arbitrary as it Seems, Sentencing Commission Suggests – Update for March 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.

COMPASSIONATE RELEASE STATS ALL OVER THE MAP, SENTENCING COMMISSION REPORTS

shocked191024Everyone was shocked, shocked, I tell you, when the US Sentencing Commission reported last week that compassionate release since the passage of the First Step Act in December 2018 through the end of FY 2020 (September 30, 2020, has been largely a geographical crapshoot.

The 1st Circuit (Maine, New Hampshire, Rhode Island and Massachusetts) had the highest compassionate release grant rate at 47.5%, while the 5th Circuit (Texas, Mississippi and Louisiana) was lowest at 13.7%. Second place for compassion went to the 9th at 37.3% with honorable mention to the 7th at 36.6%. The bottom dwellers included the 11th at 19.5% and 8th at 21.3% (although in fairness, no other Circuit came close to the 5th Circuit’s dismal approval rate).

Within all of the circuits, the best places to win compassionate release were Rhode Island (25 compassionate release motions granted out of 32 filed, or 78.1%), Connecticut (49 of 68 granted, for 72.1%), and Oregon (39 of 55 granted, for 70.9%). At the other end of the scale, South Dakota (0 out of 16, for 0.0%), Western District of North Carolina (3 of 172, for 1.7%), and Southern District of West Virginia (1 out of 40, or 2.5%), were the worst places to be.

(I have excluded districts where fewer than 10 motions were filed from this: otherwise, Puerto Rico was the best place, with 8 out of 9 granted (88.9%)).

The national average for compassionate release grants during the 2-year period was 25.7%. Courts granted 1,805 requests in fiscal year 2020 and 145 requests in FY 2019.

Age, original sentence length, and the amount of time already served emerged as the central factors affecting likelihood of a compassionate release grant.

usscgraph220314By contrast, an offender’s race, criminal history category, and offense of conviction generally appeared to have little impact on the likelihood of a compassionate release grant. Still, it is interesting that the offenses most likely to get compassionate release were immigration (50% of compassionate release motions granted), administration of justice (42% granted) and bribery/corruption (37.8%). The offenses with the worst odds were stalking/harassing (12.5%), sexual abuse (13.2%) and kidnapping (13.8%). Someone with a murder conviction was more likely to win compassionate release (19%) than one with a child pornography count (17.6%).

On average, prisoners granted relief had served 80 months and at least half of their sentences. The success rate was 57%for prisoners who had been sentenced to a year or less, 20% for prisoners with sentences between 120 and 240 months, and 30% for those who had been sentenced to 20 years or more. The average compassionate release sentence reduction was 59 months (42.6% of the original sentence).

The pandemic led to a surge in motions from prisoners who worried that they might die from COVID-19 contracted in the crowded conditions of their confinement. Courts received more than 7,000 motions – 96% of which were filed by prisoners – and granted a quarter of them. Judges cited COVID-19 risks in granting compassionate release 72% of the time.

The study makes clear that how federal courts apply 18 USC 3582(c)(1)(A)(i) varies greatly, “underscoring the need to restore the U.S. Sentencing Commission,” Law360 said. “President Joe Biden, after a year in office, has yet to nominate new commissioners, keeping a potentially key player in justice reform on the sidelines.”

Individuals aged 75 or older, who make up a smaller portion of prison populations, were granted compassionate release at the highest rate — more than 60%. Courts granted compassionate release at the lowest rate — less than 20%— to people under the age of 45, according to the report. The most common reason for denying relief was failure to demonstrate an “extraordinary and compelling” reason (two-thirds of denials). Failure to exhaust administrative remedies, cited in a third of cases, was the next most common reason.

Notably, “danger to the public” was cited less than a quarter of the time, “which makes you wonder about the public safety rationale for keeping most of these prisoners behind bars,” Reason magazine said. ‘The ages of many federal prisoners cast further doubt on that rationale, since recidivism declines sharply with age.”

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The number of compassionate releases in 2020 was anomalously high because of the pandemic. “After the study period ended,” the USSC notes, “the number of offenders granted compassionate release substantially decreased.” Yet the 1,805 people who were granted compassionate release in 2020 represented just 1% of the federal prison population. Congress, which sets federal penalties, and President Joe Biden, who has the power to free any prisoner whose punishment he deems unjust and promised to “broadly use” that power but has not used it at all yet, might want to consider the possibility that there is room for a bit more compassion.

Law360, Compassionate Release Grants Vary Without Advisory Board (March 10, 2022)

Reason, Compassionate Releases of Federal Prisoners Surged During the Pandemic (March 11, 2022)

US Sentencing Commission, Compassionate Release – The Impact of the First Step Act and COVID-19 Pandemic (March 10, 2022)

Reuters, Conservative U.S. judicial regions less apt to grant inmates compassionate release -commission report (March 10, 2022)

– Thomas L. Root

Sample-ing a First Circuit Compassionate Release Win – Update for February 21, 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.

LET’S GO, BRANDON…

jrhigh220221I’m no fan of the current political meme “Let’s go, Brandon.” I think we can be critical of the incumbent President (or the former President, for that matter) without sounding like a lot of 7th-grade boys sitting in the back of the school bus.

But today, I mean it literally. Vermont-based Federal post-conviction attorney Brandon Sample (who has no connection with this blog other than the fact of his dedication to criminal defense and his skill in winning against sometimes-substantial opposition) swung for the fence on a First Circuit compassionate release appeal. Last week, he hit a walk-off homer.

Brandon’s client, Juan Ruvalcaba, was convicted of a sprawling drug-distribution conspiracy over 15 years ago and sentenced to life in prison. “Life” was the sentence that the 21 U.S.C. § 846 count required at that time because of Juan’s prior drug convictions.

In 2020, Juan asked his court for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) because of COVID and his medical condition. He also argued that the fact that the mandatory minimum sentence for his drug conviction had been changed by the First Step Act – being dropped from life to 25 years – was an additional extraordinary and compelling reason for a sentence reduction.

henhouse180307A § 3582(c)(1)(A)(i) motion, for those of you who just came in, requires that a moving party show that there is one or more “extraordinary and compelling reason[s]” for a sentence reduction, and that, after considering the sentencing factors of 18 U.S.C. § 3553(a), a reduction is warranted. Time was only the Bureau of Prisons could bring such motions on behalf of inmates – sort of like letting the fox decide which chickens in the henhouse would be released to go “free-range” – but First Step changed that to let inmates file for compassionate release on their own.

The Sentencing Commission has defined what facts may constitute “extraordinary and compelling” reasons in a Policy Statement (USSG §1B1.13). However, because the Commission has been out of business for lack of a quorum since First Step changed the compassionate release statute in December 2018, the Policy Statement is still written as though only the BOP director is doing all of the filing.

Juan’s district court disagreed that the First Step change to his mandatory minimum could be an extraordinary and compelling reason for compassionate release. What’s more, the court held that it was obligated to follow the Sentencing Commission Policy Statement, which did not identify sentence length or a subsequent non-retroactive change in the sentencing statute as elements justifying a sentence reduction.

Brandon took Juan’s appeal to the 1st Circuit, and last week, that court joined a majority of other federal courts of appeal in holding that § 1B1.13 does not apply to prisoner-filed compassionate release motions. What’s more, the 1st Circuit ruled that a district court was free to consider that the prisoner is serving an over-long sentence that would not be mandatory had it been imposed after the First Step Act.

“The text of the current policy statement makes pellucid that it is ‘applicable’ only to motions for compassionate release commenced by the BOP,” the Circuit ruled. “To find the existing policy statement “applicable” to prisoner-initiated motions, we would need to excise the language referring to motions brought by the BOP. That would be major surgery and undertaking it would be well outside our proper interpretive province…. We may not ‘blue pencil’ unambiguous text to divorce it from its context.”

bluepencil220221The appeals court admitted that someday, the Sentencing Commission will be back in business and probably make § 1B1.13 relevant in a First Step world. Then, “district courts addressing such motions not only will be bound by the statutory criteria but also will be required to ensure that their determinations of extraordinary and compelling reasons are consistent with that guidance.” But until then, compassionate release will be interpreted “through the lens of the statutory criteria, subject to review on appeal.”

The 1st Circuit also held that an excessive sentence could be a reason for a sentence reduction, at least where a subsequent but non-retroactive change in the law had lowered a mandatory minimum. “Our view that a district court may consider the FSA’s prospective amendments to sentencing law as part of the ‘extraordinary and compelling’ calculus fits seamlessly with the history and purpose of the compassionate-release statute. In abolishing federal parole, Congress recognized the need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable.”

Such a safety valve should “encompass an individualized review of a defendant’s circumstances and permit a sentence reduction — in the district court’s sound discretion — based on any combination of factors (including unanticipated post-sentencing developments in the law),” the Circuit ruled. Thus, a district court, reviewing a prisoner-initiated motion for compassionate release in the absence of an applicable policy statement, may consider any “complex of circumstances raised by a defendant as forming an extraordinary and compelling reason warranting relief.”

Juan still has to sell his district court on the wisdom of granting any sentence reduction on remand, but – judging from his appellate win – he probably has the lawyer who can do it, if anyone can. Go, Brandon!

United States v. Ruvalcaba, Case No. 21-1064, 2022 U.S.App. LEXIS 4235 (1st Cir., February 15, 2022)

– Thomas L. Root

7th Circuit Says ‘Follow Us, Not the Science’ in Compassionate Release Denial – Update for February 14, 2022

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7TH CIRCUIT RAISES THE BAR (AGAIN) ON COVID COMPASSIONATE RELEASES

Junk Science210707The 7th Circuit has already handed down the scientifically dubious holdings that a prisoner who has gotten the vaccine should not be allowed to take advantage of 18 USC § 3582(c)(1)(A)(i) compassionate release based on COVID dangers because “published data do not establish or imply an incremental risk for prisoners — either a risk of contracting the disease after vaccination or a risk of a severe outcome – if a vaccinated person does contract the disease” and that prisoners who have access to a vaccine cannot use the risk of COVID for compassionate release “unless they can demonstrate that they are medically unable to receive or benefit from the available vaccines.”

Last week, the Circuit went even further. Christopher Barbee appealed the denial of his compassionate release motion based on COVID risk factors and made a showing he remained at risk even after being vaxxed. Given the current number of breakthrough COVID cases in vaccinated people, it’s an argument that’s got some weight behind it.

But the 7th shot him down, holding that “although Barbee contends that he remains at risk as the COVID-19 situation continues to evolve, he has not presented any evidence establishing that he is more at risk for an adverse outcome in prison than he would be if released.”

So now prisoners in the 7th not only have to show prison is a dangerous place for COVID – and the stats say the COVID rate is four times the rate in prison than it is on the street, with one out of three BOP inmates having tested positive for COVID – but they have to show that home is much safer.

noplacelikehome200518Home is not any safer than prison. That is, if you live at home with 150 other people in one big room and you have workers coming in from the community three times a day. But for anyone else, home being safer than prison is an argument that’s self-evident.

It doesn’t matter in the 7th Circuit. Call it ‘Circuit 1, Science 0,’

United States v. Barbee, Case No 21-1356 (7th Cir., Feb. 11, 2022)

Fort Worth Star-Telegram, Man is 16th to die from COVID-19 at Fort Worth prison; cases spike at women’s facility (Dec. 30, 2021)

– Thomas L. Root

Disparity Makes ‘Extraordinary and Compelling” Finding Unnecessary – Update for December 31, 2021

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LEAVING SO SOON?

release161117Jayvon Keitt was charged with a drug conspiracy involving 280 grams of crack, but took a deal letting him plead to 28 grams instead. As a result his mandatory minimum fell to five years, although his Guidelines sentencing range remained 70-87 months. At sentencing, the judge varied downward to give Jayvon 60 months.

Naturally, Jayvon didn’t appeal, because the sentence couldn’t go any lower than it did. Instead, less than four months after the sentence was imposed, Jayvon filed a compassionate release motion under 18 USC § 3582(c)(1)(A)(1). Jayvon said his asthma raised his risks if he caught COVID, and thus was an extraordinary and compelling reason for sentence reduction. He argued that the “BOP’s restrictions to curb the spread of the coronavirus have led to harsh lockdowns, restrictions on movement between jails, and have all but eliminated educational and other program[m]ing opportunities,” making his ability to participate in drug treatment programs uncertain. For those reasons, Jayvon said, letting him out four months into a 60-month sentence would not offend the sentencing factors set out in 18 USC § 3553(a).

The district court denied Jayvon’s motion after considering those sentencing factors. The court held that Jayvon had sold a lot of drugs and had already gotten a real sentence break. First, the government agreed to cut the amount of drug involved in the case from 280 grams to 28 grams, dropping the mandatory minimum sentence in half (to five years). Then, the court sentenced him below his minimum Guideline range of 70 months. The district court concluded that letting him go after only four months would lead to a real sentencing disparity. The district court made no finding as to whether Brian’s health risks constituted “extraordinary and compelling circumstances.

releaseme211231Last week, the 2nd Circuit agreed that the district court had not abused its discretion in weighing the sentencing factors. As for Jayvon’s claim that the district court was obligated to make a finding on whether extraordinary and compelling circumstances justified his release, the Circuit said that “when a district court denies a defendant’s motion under § 3582(c)(1)(A) in sole reliance on the applicable § 3553(a) sentencing factors, it need not determine whether the defendant has shown extraordinary and compelling reasons that might (in other circumstances) justify a sentence reduction.”

United States v. Keitt, Case No 21-13-cr, 2021 U.S. App LEXIS 37888 (2d Cir., December 22, 2021)

– Thomas L. Root

Jayvon, We Hardly Knew Ye… – Update for December 28, 2021

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LEAVING SO SOON?

justgothere211228Jayvon Keitt was charged with a drug conspiracy involving 280 grams of crack, but he took a deal letting him plead to 28 grams instead. As a result, his mandatory minimum fell from 10 to five years, although his Guidelines sentencing range remained 70-87 months. At sentencing, the judge varied downward to give Jayvon 60 months.

So far, a pretty good deal…

Naturally, Jayvon didn’t appeal, because the sentence couldn’t go any lower than it did, given the mandatory minimum.  However, less than four months into his sentence, Jayvon filed a compassionate release motion under 18 USC § 3582(c)(1)(A)(1), seeking immediate release. Jayvon said his asthma raised the risks he faced if he caught COVID in prison, and thus was an extraordinary and compelling reason for sentence reduction. He argued that the “BOP’s restrictions to curb the spread of the coronavirus have led to harsh lockdowns, restrictions on movement between jails, and have all but eliminated educational and other program[m]ing opportunities,” making his ability to participate in drug treatment programs uncertain.

The district court denied Jayvon’s motion after considering the 18 USC § 3553(a) sentencing factors, holding that he had sold a lot of drugs and had already gotten a real sentence break. The judge ruled that a sentence reduction would lead to a sentencing disparity (given the mandatory minimum Jayvon would be dodging). The district court made no finding as to whether Jayvon’s health risks constituted “extraordinary and compelling circumstances.”

break211228

Last week, the 2nd Circuit agreed that the district court had not abused its discretion in weighing the sentencing factors. As for Jayvon’s claim that the district court was obligated to make a finding on whether extraordinary and compelling circumstances justified his release, the Circuit said that “when a district court denies a defendant’s motion under § 3582(c)(1)(A) in sole reliance on the applicable § 3553(a) sentencing factors, it need not determine whether the defendant has shown extraordinary and compelling reasons that might (in other circumstances) justify a sentence reduction.”

United States v. Keitt, Case No 21-13-cr, 2021 U.S. App. LEXIS 37888 (2d Cir., December 22, 2021)

– Thomas L. Root

A Silver Lining In The Omicron Ugliness? – Update for December 21, 2021

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IT WAS THE BEST OF TIMES…

best210111So omicron is unlikely to respect that you’ve had COVID before or been vaccinated, and there’s no reason to believe that it’s milder than its predecessors (see below). What could possibly be good about that?

What’s good is that this may represent the last best chance for inmates to win COVID-based compassionate release motions under 18 USC § 3582(c)(1)(A)(i). In the last 6 months, courts have often cited the questionable fact that if you’ve had COVID, you’re less likely to have it again or have it more seriously. What’s more, the judges are holding that being vaccinated reduces the risk to a level where compassionate release is unnecessary.

There’s a good argument to be made now that omicron has kicked the legs out from under both those arguments.

And this might be the last best chance to get a COVID compassionate release. Drugmakers Pfizer and Merck have both sought authorization for a COVID pill, and early tests show Pfizer’s pill cuts hospitalization and death from COVID by 90% and works against omicron.

Act-Now-300pxOnce those pills are approved and generally available – estimated to be about 90 days – it’s quite likely that the COVID compassionate release will be a thing of the past.

Macbeth might advise prisoners, “If it were done when ’tis done, then ’twere well it were done quickly.”

Reuters, Pfizer says COVID-19 pill near 90% protective against hospitalization, death (December 14, 2021)

– Thomas L. Root

COVID – We Ain’t Seen Nuthin’ Yet? – Update for December 15, 2021

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

LADIES LEAD THE WAY IN COVID NUMBERS JUMP

Bureau of Prisons inmate COVID numbers have jumped 65% in the last two weeks to 243, fueled by a spike at FCI Waseca, where 125 female inmates were sick last Friday. That number has dropped by half as of yesterday, due in no small part to the BOP’s habit of declaring any inmate to be recovered after t days, no matter her condition as long as she has no fever.

COVIDheart200720The BOP’s technique, a bastardization of what the Centers for Disease Control and Prevention recommends, no doubt accounts for the fact that 56% of all inmate COVID deaths in the last nine months have been of prisoners who had been declared “recovered” at some point in the past 20 months by the agency. Some inmates have reported that they were declared “recovered” ten days after COVID was diagnosed after nothing more than a quick temperature check. Others have reported that temps weren’t even taken: after ten days (provided you were not dead), you were considered to be “recovered” and sent on your way.

Case in point: an inmate whose death was reported today had COVID last February. “On Tuesday, February 16, 2021, in accordance with Centers for Disease Control and Prevention (CDC) guidelines, [he] was converted to a status of recovered, following the completion of medical isolation and presenting with no symptoms,” the BOP recounted in what has become its Newspeak for such situations.

Staff cases are stubbornly holding, at 229, within a rounding error of two weeks ago (232). The number of BOP facilities affected by COVID stands at 102, about the same as two weeks ago.

plague200406The BOP has logged four more inmate COVID deaths in the past two weeks. One of them was a Terminal Island inmate whose death last May 10 was only now attributed to COVID. Like more than 60% of inmates dying since March 2021, the inmate had recovered from COVID once before contracting it again and dying of it the second time around.

Nearly 93% of the federal workforce has now received at least one COVID-19 vaccine dose. Avernment Executive magazine, more than 97% is in compliance with President Biden’s mandate by either getting a shot or requesting an exemption. But BOP compliance is lagging significantly: As of last Friday, only 68% of BOP employees and 72.3% of inmates have been vaccinated. With the Biden Administration admitting no one will be fired for not getting the jab, new employee vaccinations have slowed to a crawl.

The real COVID news in the last few weeks is not the delta variant, which is still responsible for current inmate cases. Instead, delta may be a tortoise next to the COVID-19 omicron variant. That variant – identified in South Africa for the first time on November 24, 2021 – has been found in 25 U.S. states in just 16 days. Officials of the UK and other European countries have predicted that omicron will become the dominant strain of COVID in their countries “within days, not weeks.” Cases in Europe are doubling “every two to three days.”

omicron211215Vaccines appear not to provide heightened resistance to omicron. An Oxford University study has found that two doses of Oxford-AstraZeneca or Pfizer-BioNTech Covid-19 vaccines are substantially less effective at warding off omicron than previous coronavirus variants. The study tested blood samples of people 28 days after their second dose of either vaccine. When omicron was introduced to those samples, scientists reported “a substantial fall” in the neutralizing antibodies that fight off COVID compared to the immune responses seen against earlier variants. The research paper noted that some vaccine recipients “failed to neutralize [the virus] at all.”

The same is true for the J&J single-dose vax. Johnson & Johnson’s vaccine produced virtually no antibody protection against the omicron coronavirus variant in a laboratory experiment, underlining the new strain’s ability to get around one pillar of the body’s defenses.

While there has been some speculation that omicron may not generally cause symptoms as severe as those caused by alpha and delta variants, no studies have yet confirmed that. In fact, Dr. Paul Burton, chief medical officer for Moderna, predicted yesterday there is a very real risk of getting a “dual infection” from both omicron and delta. He said: “In the near future these two viruses are going to coexist.”

deadcovid210914The UK logged its first omicron death on December 13, only two weeks after the nation recorded its first omicron case. Boris Johnson, the UK Prime Minister, warned that “the idea that this is somehow a milder version of the virus, I think that’s something we need to set on one side and just recognize the sheer pace at which it accelerates through the population.”

The silver lining to the coming 4th wave is this: with a COVID pill about 100 days away, this may be the last chance for prisoners to convince a court to grant a compassionate release based on COVID.

Mankato Free Press, Waseca prison has biggest COVID-19 outbreak in country (December 9, 2021)

BOP, Inmate Death at FCI Terminal Island (December 6, 2021)

BOP, Inmate Death at FCI Butner II (Medium) (December 14, 2021)

Government Executive, An inside look at the White House’s approach to implementing Biden’s mandate (December 10, 2021)

New York Times, South Africa detects a new variant, prompting new international travel restrictions (November 25, 2021)

CNBC, Omicron detected in Florida and Texas as it takes root in 25 U.S. states (December 10, 2021)

Washington Post, Omicron could soon become dominant in some European countries, officials predict (December 10, 2021)

Oxford University, Reduced neutralisation of SARS-COV-2 Omicron-B.1.1.529 variant by post-immunisation serum (December 13, 2021)

– Thomas L. Root

6th and 7th Circuits Pound Compassionate Release – Update for November 8, 2021

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

ROUGH WEEK FOR COMPASSIONATE RELEASE

A trio of cases last week suggest that at least two other federal circuits are joining the 11th in taking a dismissive view of compassionate release for COVID reasons.

ratchet211108Rachel Effect: About 22 years ago, John Bass – who ran a substantial drug-trafficking organization in Michigan for about a decade – began serving two concurrent life-without-parole sentences for murdering a hitman whom John had hired to kill his half-brother.

Yes, there is a certain amount of irony in murdering a hitman, even one you hired to hit someone else, but we’ll save that for another time.

In 2020, John filed a motion for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i) – commonly called a motion for compassionate release – due to his frail medical condition and susceptibility to COVID. The district court granted his motion in January 2021, but John only enjoyed a few weeks of freedom before the government convinced the 6th Circuit to stay John’s release, sending John back to prison.

Last week, the Circuit held the district court abused its discretion is letting John out, and reversed the release permanently.

In its 2-1 decision, the 6th Circuit focused almost exclusively on the seriousness of John’s crime, disagreeing with the district court that 22 years in prison was “sufficient, but not greater than necessary to fulfill the purposes of his punishment.” The Circuit held that the crimes “were so severe that the Government sought the death penalty, and Bass’s own defense counsel assured the jury that Bass would never leave prison in an effort to avoid imposition of the death penalty.”

violent160620The district court justified its decision to release John by repeatedly emphasizing his rehabilitation and education. But, the 6th wrote, the district court “failed to square this lengthy rehabilitation analysis with the fact that Bass’s original sentence was life imprisonment without the possibility of release… In deciding Bass’s original sentence, the jury and the district court had already considered and rejected the possibility that he could be rehabilitated, or that his capacity for rehabilitation warranted the potential for an early release. This is not to say that compassionate release is never available for a defendant sentenced to life imprisonment without the possibility of release. We assume that there are circumstances that would warrant compassionate release for a defendant so sentenced. But the nature of Bass’s life sentence calls into question the district court’s decision to afford substantial weight to his efforts at rehabilitation after only 22 years in prison.”

The decision includes an interesting discussion of sentence disparity. The district court had ruled John’s sentence was too long compared to a co-conspirator who was sentenced in a state court for his crimes. The Circuit disagreed, holding that although “district courts may consider disparities among codefendants, the only disparities relevant are those among federal defendants on a national scale… By considering state court sentences, a district court actually is re-injecting the locality disparity that the Sentencing Reform Act of 1984 was designed to guard against.”

[Editor’s note]: The whole “disparity” argument comes down to (1) fairness to the defendant, and (2) perception of the public. A defendant figures 10 years is 10 years, or life is life, whether it’s served in a federal prison or a state joint. Likewise for the public, there’s no difference in where the sentence is served: if one guy gets five years in state while another gets 20 in a federal prison, the public sees a disparity that tends to cause disrespect and lack of confidence in the judicial system. But implicit in the 6th Circuit holding is that the public understands and appreciates the nuances in the system, the “separate sovereigns” and all that claptrap.]

double211108I don’t usually mention dissents, but Judge Helene White wrote a notable one in this 2-1 case. She quite rightly suggested the majority was applying a different standard because it was the government appealing a compassionate release decision favorable to the defendant, instead of the usual disappointed prisoner appealing the district court’s siding with the government. Judge White admits that if she had been the district judge, she would not have granted John’s motion. “However,” she said, “the district court adequately explained its decision and did not abuse its discretion in concluding otherwise. We must apply the same rules on review without regard to whether the government or the inmate is aggrieved by the district court’s decision… We require district courts to provide only the most minimal explanation, and we must defer to their judgment in weighing the § 3553(a) factors and not substitute our own…”

It looks like a ratchet: if the district court denies a compassionate release motion, it has almost untrammeled discretion. If, however, it grants one, the circuit court will examine its decision with a magnifying glass and gimlet eye.

COVID Isn’t the Only Thing the Vaccine Prevents: In two other cases last week, the 6th and 7th Circuits held that a vaccinated inmate is disqualified from receiving a COVID-19 compassionate release. The 6th flatly held that “a defendant’s incarceration during the COVID-19 pandemic – when the defendant has access to the COVID-19 vaccine – does not present an extraordinary and compelling reason warranting a sentence reduction… The COVID-19 vaccine is available to inmates at Traylor’s facility, and Traylor has received both doses of the Pfizer vaccine.”

Vaccinesticker211005The 7th Circuit also slammed the door on COVID-19 compassionate release, holding that “unless a prisoner can show they [sic] are unable to receive or benefit from a vaccine… the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release… Because the prisoner is vaccinated, he is ineligible for relief on remand.”

The fly in the ointment – as the death of General Colin Powell illustrates and the data all support – is that vaccine efficacy fades over time. No one knows for how long that time is, but the CDC has already recommended boosters, which could be. At the same time, vaccine effectiveness varies according to a person’s condition, with studies showing that it is less effective in obese people. With a new COVID delta subvariant just identified in the UK, not to mention the increasing occurrence of “breakthrough” infections among the vaccinated, the appellate courts may discover that the effects of the coronavirus is quite resistant to the “one-size-fits-all” vaccine approach.

United States v. Bass, Case No. 21-1094, 2021 U.S. App. LEXIS 32738 (6th Cir., Nov 3, 2021)

United States v. Traylor, Case No. 21-1565, 2021 U.S. App. LEXIS 32493 (6th Cir., Nov 1, 2021)

United States v. Kurzynowski, Case No. 20-3491, 2021 U.S. App. LEXIS 32966 (7th Cir., Nov 5, 2021)

National Geographic, An Offshoot of the Delta Variant is Rising in the UK (November 2, 2021)

The Wall Street Journal, Rising Covid-19 Breakthrough Cases Hinder Efforts to Control Virus (November 6, 2021)

– Thomas L. Root

Three Appellate Decisions Make Compassionate Release Even Mushier – Update for October 12, 2021

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

A SERIOUS COLLISION AT THE “INTERSECTION OF LAW AND SCIENCE”

In yesterday’s Dilbert, the Pointy-Headed Boss complaining, “If I thought data would influence my decision, I wouldn’t let you gather it.”  The Boss should lobby for a seat on the 6th, 8th, or 10th Circuit. He’d feel right at home.

dilbert211012

Compassionate release decisions under 18 U.S.C. § 3582(c)(1)(A)(i) last week from those three courts were overly deferential to district court decisions that are at odds with the facts (the data, as it were).

In the 10th Circuit, Adam Hemmelgarn said his mild asthma, a cyst on his lungs, and an array of physical effects from his prior COVID illness put him at risk if he contracted it again. His district court denied him relief, holding that the fact Adam had contracted COVID once and recovered suggested his medical condition did not place him at high risk of severe illness.

On appeal, Adam pointed to CDC guidance that one could catch a more severe case of COVID even after recovering from a prior infection. But the 10th Circuit, with remarkable circular reasoning, ruled that “the district court’s statement that Hemmelgarn recovered from COVID-19 despite his medical conditions is simply consistent with the view that those conditions do not place him at high risk of severe illness from COVID-19. Thus, this finding of fact is not clearly erroneous.”

sick211012jpgThe holding overlooks Adam’s point. It ignored the CDC warning Adam cited in his brief that “you can contract COVID-19 more than once, with more severity each time.” And of course, the decision ignores the inconvenient fact that in 64% of the 33 cases of BOP inmates whose deaths have been announced since March 1, 2021, the inmates who died of COVID had had previous coronavirus cases and recovered without serious effects (or at least, without effects as serious as dying, which is what happened the second time around).

In the 8th Circuit, Andrew Marcussen’s district court found he suffered from “COPD, hypertension, hyperlipidemia, prediabetes, BPH, GERD, seborrheic dermatitis and obesity.” Despite Andy’s infirmities sounding like a medical school final exam, the district court concluded his “underlying medical conditions, in combination with the COVID-19 pandemic, are not ‘extraordinary and compelling reasons’ for a sentence reduction.” This, the district judge wrote, was because of the “well-controlled nature of Defendant’s COPD and hypertension.”

On appeal, the government conceded that based on CDC guidance, Andy’s COPD and obesity qualified as extraordinary and compelling reasons for a sentence reduction. But the appeals court didn’t care about the DOJ’s admission. Compassionate release “requires a judicial determination of ‘extraordinary and compelling reasons’ based on an inmate’s unique circumstances,” the court said. “That determination is not governed by the Executive Branch, either the CDC’s general pronouncements relating to COVID-19 risks, or a United States Attorney’s ‘concession’. Those are of course relevant opinions, but they do not control the district court’s exercise of discretion.”

The Pointy-Headed Boss couldn’t have said it any better. You wonder where Scott Adams gets his material? One might be forgiven for wondering… if the record does not cabin the court’s discretion, then what does?

Before the district court, the government vigorously argued that Adam’s COPD and high BMI were not extraordinary and compelling reasons. It only changed its mind on appeal. Shouldn’t the district court get a second whack at the issue knowing the government agreed with the defendant? Any lawyer with a bar license on which the ink has dried knows that the government’s position on a matter before the court – especially in a criminal case – has an outsized influence on the court’s perception of an issue. The 8th’s implication that the government’s position had no influence on the district court’s decision is laughable.

More to the point, the issue is not whether Adam’s medical conditions are well-controlled absent Adam catching COVID. Instead, the question is whether obesity and COPD (not to mention everything else) will make matters worse if he does catch COVID. It’s like saying that a heart weakened by multiple heart attacks is well-controlled with meds and a pacemaker, so there’s nothing wrong with the patient running the Boston Marathon.

Finally, the 6th Circuit ruled that the fact that Michael Lemon is vaccinated ought to be ‘game, set, and match’ in denying his compassionate release motion:

“Following full vaccination, it is now well understood, both the likelihood of contracting COVID-19 and the associated risks should one contract the virus are significantly reduced,” the Circuit ruled, citing the CDC. Thus, Mike’s “access to the COVID-19 vaccine substantially undermines his request for a sentence reduction. To that end, we agree with the Seventh Circuit that a defendant’s incarceration during the COVID-19 pandemic — when the defendant has access to the COVID-19 vaccine — does not present an “extraordinary and compelling reason” warranting a sentence reduction… After all, with access to the vaccine, an inmate largely faces the same risk from COVID-19 as those who are not incarcerated. To be sure, inmates in some respects face social distancing challenges distinct from those of the general public (although perhaps not entirely unlike students in dorm rooms, individuals in medical and assisted care facilities, and even residents of densely occupied apartment complexes). But to the extent prisons do offer some unique challenges, the vaccine now significantly reduces the risks associated with COVID-19.”

collision211012The 6th calls this the “intersection of law and science.” But a lot of collisions happen at intersections. This decision comes only a week or so after a CDC report admitted that 70% of vaccinated inmates in a study group last August at an unidentified Texas BOP facility (it was FCI Texarkana) tested positive for COVID-19, not to new mention studies that vaccine life is a lot shorter than first thought.

In short, the evolving science provides scant support for a lot of faith in vaccines. They’re way better than nothing, but not nearly the pandemic antidote the courts say they are.

United States v. Hemmelgarn, Case No. 20-4109, 2021 U.S. App. LEXIS 30221 (10th Cir., October 8, 2021)

United States v. Marcussen, Case No. 20-2507, 2021 U.S. App. LEXIS 30109 (8th Cir., October 7, 2021)

United States v. Lemons, Case No 21-5313, 2021 U.S. App. LEXIS 30267 (6th Cir., October 8, 2021)

Centers for Disease Control and Prevention, Outbreak of SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a Federal Prison — Texas, July–August 2021 (September 24, 2021) 

– Thomas L. Root

COVID’s Ugly… and Puzzling – Update for October 5, 2021

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

COVID IN PRISON: WHO TO BELIEVE?

This is not my usual complaint about the BOP’s voodoo accounting for inmate COVID patients (although if cooking the books is a sin, a lot of BOP bean counters had better be pretty busy on Sunday morning). This is a more general head-scratch about how everything we knew about COVID seems, day by day, to be proven wrong.

Vaccinesticker211005How about the one that the vaccine (or a prior bout of COVID) will provide enduring protection? The government loves to trot out the argument that compassionate release due to the dangers of COVID is passe, because the prisoner is either (1) fully vaxxed; or (2) recovered from a prior bout of COVID, and thus naturally immune. It now appears that this chestnut is running headlong into the real world.

Diamonds Are Forever… But Not Vaccines: There is mounting evidence that vaccines are shorter-lived than the government says they are, and having COVID once does not immunize you from getting it again. Reuters reported last Friday that six months after receiving the second dose of the two-shot vaccine from Pfizer, many recipients no longer have vaccine-induced antibodies that can immediately neutralize worrisome variants of the coronavirus. In other words, that Pfizer poke you got in April likely isn’t doing anything for you now.

COVID Ain’t One-and-Done:  As for immunity due to having had COVID once, a review of all of the BOP’s press releases in inmate deaths – available at BOP.gov – since March 1, 2021, 19 of 28 reported deaths (68%) were of inmates who had previously recovered from COVID.

plague200406Let that sink in. More than half of the federal prisoners who died of COVID in the last seven months had already had COVID-19 once, and the prior bout from which they had recovered was not nearly as serious as the second one.

Now back to vaccines: the Centers for Disease Control and Prevention descended on FCI Texarkana last August when an early breakout of COVID-19 Delta erupted. The CDC study found that while 93% of the Texarkana inmates (39 of 42) infected with COVID-19 Delta were unvaccinated, 70% (129 of 185) infected had received both doses of vaccine. Infections were found in 89% of those vaccinated more than four months previously and 61% in those vaccinated in the last two months.

The data are showing CDC scientists (and the rest of us) that immunity from a prior COVID infection or vaccine is far from substantial protection.

BOP Numbers:  The BOP’s COVID numbers fell from 631 inmates and 547 staff on Sept 24 to 480 and 497 last Friday. But COVID is still present in 112 of 122 facilities. Four more inmates died last week. Inmate vaccinations jumped four points to 65.6%. Staff vaccinations still lag, up less than a half point to 54.8%.

antivax211005Staff Shots: A Presidential Executive Order to enforce vaccinations of BOP staff (not inmates) will begin this coming Friday. If staff are not fully vaccinated by Nov 22, they will face employment termination. BOP staff from USP Lewisburg, USP Allenwood, USP Canaan, FCI Schuylkill, and LSCI Loretto picketed last week against the mandate. Forbes reported last week that an Inspector General’s survey of BOP employees show substantial staff hesitancy or resistance to getting the vaccine, and “almost a third of those respondents reported that they have considered leaving the agency.”

COVID Infection is Arbitrary, and So is Compassionate Release: The gross disparities in grant of compassionate release are getting more notice. A CNN report last week noted that “17.5% of compassionate release motions were granted in 2020 and the first six months of 2021, newly released sentencing commission statistics show. But that rate ranged from a low of 1.7% in the Southern District of Georgia, where all but four of 230 motions were denied, to a high of 77.3% in the District of Puerto Rico, where 17 of 22 motions were granted. Judge Charles Breyer, the only current member of the sentencing commission, said in an interview that he thought the lack of updated compassionate release guidelines was exacerbating the wide disparities between districts.” Breyer argued that “You need a national standard,” adding that without one, “it creates a vacuum and it creates uncertainty, and most importantly it creates disparity.”

Just over 40% of motions decided in March 2020 were approved, CNN reported, but that fell to less than 17% in December and about 11% in June 2021. The decline this year came as the number of new coronavirus cases behind bars receded and vaccines became widely available in the prison system.

limp211005At Last, A Reason for Guys to Get Vaxxed: Still wondering about taking the vaccine? A report last week spotlighted mounting evidence that COVID-19 may sabotage men’s sexual health. Men may be six times more likely to develop brief or long-term erectile dysfunction after contracting the virus, according to research published in March. So guys, your reasons for rejecting vaccination are starting to seem… kind of limp.

CDC, Outbreak of SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a Federal Prison — Texas, July–August 2021 (September 24, 2021)

Am Council on Science & Health, Prison Breakout … of the Delta Variant (September 26, 2021)

NCPA.com, Bureau of Prisons’ staff face vaccinate mandate; union picket ensues (September 29, 2021)

Reuters, Science News Roundup: Delta increases COVID-19 risks for pregnant women; Pfizer/BioNTech vaccine antibodies gone by 7 months for many (October 1, 2021)

CNN, Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic (September 30, 2021)

Natl Geographic, COVID-19 may impair men’s sexual performance (September 22, 2021)

– Thomas L. Root