Tag Archives: compassionate release

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

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

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

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

EQUAL Act Jumps Low Hurdle, High Hurdle is Next – Update for September 30, 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.

HOUSE PASSES EQUAL ACT

crackpowder160606Over 25 years ago, the United States Sentencing Commission – never a hotbed of progressive thought – concluded that the draconian drug policy of considering every gram of crack cocaine to be the equivalent to 100 grams of powder cocaine was irrational and resulted in disproportionately severe crack sentences being imposed mostly on black defendants.

But just as sex sells in the marketing ethos, outrageous punishment sells in the political world. At least until a few years ago, no member of Congress ever lost an election because he or she was too tough on crime.

Fourteen years ago, Presidential candidate Barack Obama decried the crack-to-powder disparity, and in April 2009, his Dept of Justice lobbied for the elimination of the 100:1 ratio. The House passed a 1:1 bill that year, but by the time the Senate took it up the following summer, 1:1 had become 18:1 in order to satisfy certain troglodytes in that chamber, chief among them the unlamented former senator Jefferson Beauregard Sessions III of Alabama.

Jefferson Beauregard Sessions III
Jefferson Beauregard Sessions III

The resulting Fair Sentencing Act mandated a new 18:1 crack/powder quantity disparity ratio, but without retroactivity, so that accidents of time hammered a defendant who was sentenced in July 2010, for example, with a 100:1 sentence, while one whose lawyer managed to delay sentencing until the dog days of August benefitted from a much shorter mandatory minimum. Under this formula, people caught with 28 grams of crack receive the same sentence as someone caught with 500 grams of powder cocaine, despite the American Medical Association’s findings that there is no chemical difference between the two substances.

The Fair Sentencing Act became retroactive to all defendants with crack mandatory minimums (but see United States v. Terry) by the passage of the First Step Act in December 2018.

Fast forward to last week. The EQUAL Act, pending in both houses of Congress, proposes the elimination of any disparity between crack and powder cocaine. But Sen Charles Grassley (R-Iowa) a conservative lawmaker from the heart of the corn belt but a champion of criminal justice reform, said candidly that he didn’t think he could find enough Republican votes to come up with the 60 needed to pass the EQUAL Act in the Senate.

This past Tuesday, the House decided to give Grassley the chance to try anyway, passing the EQUAL Act (H.R. 1693) by a lopsided vote of 361-66. (Grassley may have a point. All 66 nay votes in the House were from GOP lawmakers).

Surprisingly (at least to me), Representative Louie Gohmert (R-Texas), a former judge who has said some people – not without some justification, I might add – think he is the “dumbest guy in Congress,” was a sponsor of the EQUAL Act. The Congressman said the measure was “a great start toward getting the right thing done. He said during floor debate that as a judge, “Something I thought Texas did right was [to] have an up-to-12 months substance abuse felony punishment facility. Some thought it was strange that a strong conservative like myself used that as much as I did. But I saw this is so addictive, it needs a length of time to help people to change their lives for such a time that they’ve got a better chance of making it out, understanding just how addictive those substances are.”

In the Senate, at least 10 Republicans would have to join with all Democrats to advance it in the evenly divided chamber. A Senate version of the EQUAL Act, S.79, was introduced by Sen. Cory Booker (D-NJ) and currently has five cosponsors, including three Republicans: Sen. Rob Portman (Ohio), Rand Paul (Kentucky), and Thom Tillis (NC). It remains before the Committee on the Judiciary.

The House version of the EQUAL Act that just passed provides that in the case of a defendant already serving a sentence based in any part on cocaine base may return to court to receive a sentence reduction, in a procedure that appears to be similar to the Section 404 procedure for Fair Sentencing Act retroactive resentencings, but with one interesting twist: Section 404 proceedings do not require the district judge to consider whether a sentence reduction is consistent with the sentencing factors in 18 USC § 3553(a). The EQUAL Act procedure permits imposition of a sentence reduction only “after considering the factors set forth in section 3553(a) of title 18, United States Code.”

Is this a good thing? Probably anything that adds structure (however slight) to the process is beneficial. Without any standard, nothing prevents a district judge from making arbitrary decisions. Even with a § 3553(a) requirement, a Sentencing Commission study of the compassionate release process has found that a defendant’s likelihood of success ranged from about 70% in Oregon to a lousy 1.5% (Western District of North Carolina).

crack-coke200804Anything that can avoid swapping one disparity for another is probably a good thing.

So what would be the practical effect of such a change? When the Fair Sentencing Act passed, the U.S. Sentencing Commission responded by reducing sentencing ranges across the board for crack offenses, so that a five-year mandatory sentence for a defendant without a prior criminal history possessing 28 grams of crack equaled what the Guidelines said his sentence should be. If the ratio falls to 1:1, and if the Sentencing Commission makes the same adjustments, a hypothetical defendant with no prior record (and no sentencing enhancements) would see the following sentencing range adjustments:

chart210624

Of course, as they say in the commercials, “actual results may vary.” But if the courts are mandated to consider § 3553(a) first, maybe they will vary less.

But first, the EQUAL Act has to pass the Senate…

– Thomas L. Root

Going Back to the Well – Update for September 24, 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.

PROCEDURAL BOOTSTRAPPING

well210924Back to the Well Once Too Often: Federal prisoners who lose their 28 USC § 2255 motions sometimes resort to filing motions to set aside the § 2255 judgment under Federal Rule of Civil Procedure 60(b), as a clever means of getting around seeking permission for a second or successive § 2255 under 28 USC § 2244. It seldom works.

A few fun facts: First, although a post-conviction motion under 28 USC § 2255 challenges a criminal conviction or sentence, the § 2255 proceeding itself is considered to be a civil action. That is how a movant even has the option to employ Fed.R.Civ.P. 60(b), or any other Federal Rule of Civil Procedure, for that matter. Second, Rule 60(b) – which governs motions to set aside the judgment – is usable after a final judgment is rendered, although that some time constraints and designated bases for invoking the Rule that are beyond today’s discussion. Third, the Anti-Terrorism and Effective Death Penalty Act – known as the AEDPA – puts severe restrictions on prisoners bringing more than a single § 2255 motion without meeting some pretty high standards (a new retroactive rule of constitutional law or some killer new evidence) and getting advance approval from a United States Court of Appeals under 28 USC § 2244. These restrictions can run headlong into a Rule 60(b) motion.

Desmond Rouse and several co-defendants were convicted based on what they called “outdated, false, misleading, and inaccurate” forensic medical evidence, testimony that had since been recanted, and juror racism. Having failed to win their § 2255 motions, they filed a motion to set aside the § 2255 judgment under Rule 60(b), arguing that a “new rule” announced in Peña-Rodriguez v Colorado would now let them “investigate whether their convictions were based upon overt [juror] racism,” and the witness recantations showed they were actually innocent.

Last week, the 8th Circuit rejected the Rule 60(b) motion as a second-or-successive § 2255 motion.

aedpa210504The Circuit held that newly discovered evidence in support of a claim previously denied and a subsequent change in substantive law “fall squarely within the class of Rule 60(b) claims to which the Supreme Court applied § 2244(b) restrictions in Gonzalez v. Crosby back in 2005. The requirement in § 2244(b)(3) that courts of appeals first certify compliance with § 2244(b)(2) before a district court can accept a motion for second or successive relief applies to Rule 60(b)(6) motions that include second or successive claims. Our prior denial of authorization did not sanction Appellants’ repackaging of their claims in Rule 60(b)(6) motions to the district court. The motions are improper attempts to circumvent the procedural requirements of AEDPA.”

Back to the Well is Just Fine: In the 7th Circuit, however, a prisoner who filed reconsideration on denial of his First Step Act Section 404 motion chalked up a procedural win. Within the 14 days allowed for filing a notice of appeal after his district court denied him a sentence reduction, William Hible filed a motion asking the district judge to reconsider his denial. The judge denied the motion, and Bill filed his notice of appeal, again within 14 days of the denial. The government argued the notice was late, because a motion for reconsideration doesn’t stop the appeal deadline from running.

Last week, the 7th Circuit agreed with Bill. The 7th observed that while the Federal Rules of Criminal Procedure lack any parallel to the Federal Rules of Civil Procedure 59, the Supreme Court “has held repeatedly that motions to reconsider in criminal cases extend the time for appeal. But under the Sentencing Reform Act of 1984, only Criminal Rules 35 and 36 offer any prospect of modification by the district judge. Rule 36 is limited to the correction of clerical errors. Under Federal Rule of Appellate Procedure 4(b)(5), a motion under Rule 35 does not affect the time for appeal.

 timewaits210924The government argued these rules govern sentence reduction proceedings, but the 7th disagreed. The Circuit said the First Step Act authorizes reduction of a sentence long after the time allowed by Rule 35. Thus, “the First Step Act’s authorization to reduce a prisoner’s sentence is external to Rule 35,” so the provision in Rule 4(b)(5) about the effect of Rule 35 motions does not apply here. A reconsideration motion in a 404 proceeding thus stops the running of the time to appeal, and Hible’s notice of appeal was timely.

Rouse v. United States, Case No. 20-2007, 2021 U.S. App. LEXIS 27795 (8th Cir., September 16, 2021)

United States v. Hible, Case No. 20-1824, 2021 U.S. App. LEXIS 27548 (7th Cir., September 14, 2021)

– Thomas L. Root

Nothing Extraordinary about a 312-Year Robbery Sentence, 3rd Circuit Says – Update for September 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.

A LARGELY UGLY COMPASSIONATE RELEASE DECISION FROM THE THIRD CIRCUIT

guns200304The 3rd Circuit last week joined eight other federal circuits in holding that an inmate-filed compassionate release motion is not limited by the Sentencing Guidelines § 1B1.13 policy statement. That was the good news, the only good news.

Eric Andrews is serving a 312-year sentence for a string of armed robberies, with almost all of that time due to stacked 18 USC § 924(c) convictions. If he had been sentenced after passage of the First Step Act, his § 924(c) sentences would have amounted to 91 years, still impressive but possibly a survivable sentence. But because the First Step changes were not retroactive, Rick’s only course was to file a compassionate release motion under 18 USC § 3582(c)(1)(A)(i) arguing that his excessive sentence length and the First Step Act changes were the “extraordinary and compelling reasons” supporting grant of the motion.

The district court denied Rick, and last week, the 3rd Circuit agreed.

The appeals court held that “the duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance… Considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties.”

41475-Forever-Is-A-Long-TimeLikewise, the 3rd ruled, a nonretroactive change to mandatory minimums “cannot be a basis for compassionate release. In passing the First Step Act, Congress specifically decided that the changes to the 924(c) mandatory minimums would not apply to people who had already been sentenced.” Applying rules of statutory construction to the First Step Act, the Circuit said, “we will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release. Such an interpretation would sow conflict within the statute… We join the 6th and 7th Circuits in reaching this conclusion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, makes a telling point:

The very first sentence of the Andrews ruling has a Kafka-esque “only in America” quality to it: “Eric Andrews is serving a 312-year sentence for committing a series of armed robberies when he was nineteen.” That a person at age 19 can get a 312-year sentence for a series of robberies strikes me as quite extraordinary and quite compelling, but the district court did not see matters that way. Specifically, as described by the panel opinion, the district court decided that “the duration of Andrews’s sentence and the nonretroactive changes to mandatory minimums could not be extraordinary and compelling as a matter of law.” Of course, there is no statutory text enacted by Congress that sets forth this “as a matter of law.” But the Third Circuit panel here blesses the extra-textual notion that courts can and should invent some new categorical exclusions “as a matter of law” regarding what might qualify as extraordinary and compelling.

noquorum191016The Second, Fourth, Fifth, Ninth and Tenth Circuits have held the contrary to this opinion, which perhaps puts some wind in Thomas Bryant’s pending petition to the Supreme Court for review of the 11th Circuit’s denial of his compassionate release motion. That petition is ripe for decision at the end of this month at the Supreme Court’s “long conference.” Of course, a reconstituted Sentencing Commission could solve this circuit split by rewriting USSG § 1B1.13, but that would require that the Sentencing Commission first be repopulated with new members. President Biden has thus far shown no more interest than did his predecessor in appointing new members. By December, the Commission will have been without a quorum for three years.

United States v. Andrews, Case No 20-2768, 2021 US App LEXIS 26089 (3d Cir. August 30, 2021)

Sentencing Law and Policy, Third Circuit invents some extra-textual limits on what might permit a sentence reduction under 3582(c)(1)(A) (August 30, 2021)

– Thomas L. Root