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3rd Circuit Frolics, Compassionate Release Suffers – Update for April 7, 2020

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

3RD CIRCUIT GOES OFF THE RAILS ON ADMINISTRATIVE EXHAUSTION

Francis Raia, a small-time Hoboken politician who tried to buy a city council seat for $50 a vote, ended up with a conviction for fraud and a very short 90-day sentence (which the government has appealed). Even a few months seemed like a lifetime to Frank, and – given the coronavirus – it might just be. So he asked his district court for compassionate release.

corona200313The district court said it would grant the motion, except that the case had been appealed by the government so it had no jurisdiction. Raia’s lawyers, rather than appealing the District Court’s decision, instead refiled the § 3582 motion with the 3rd Circuit to grant compassionate release, a truly foolish approach. (Appeals courts are for appeals, but that is an issue for another day).

Last week, the 3rd refused to grant Frank’s motion for several reasons, any of which would have been good enough by itself. But just to show it could be as foolish as the lawyers appearing before it, the Circuit then laid down some dictum on an issue that had not been briefed. The three-judge panel essentially gutted well-established exceptions to the administrative exhaustion doctrine in the process.

Exhaustion means that an inmate has to complete the administrative review process before he or she goes to court. The compassionate-release statute, 18 USC § 3582(c)(1)(A), requires that an inmate first ask the warden to recommend compassionate release, and exhaust remedies if denied. If the warden does nothing, the inmate can file directly with the court after 30 days.

Exhaustion170327There are some well-established exceptions to exhaustion. If exhaustion would be futile, if there are exigent circumstances, if the agency has already made clear that it will deny the request: all of these have excused exhaustion requirements in cases. Frank apparently did not ask the BOP for its recommendation first, but the district court never addressed that lapse, and on appeal, neither party discussed the exhaustion requirement (or Frank’s failure to meet it) in the briefs.

But the 3rd weighed in nonetheless. After paying lip service to the risks of COVID-19 to federal prison inmates like Raia, the three-judge panel said

But the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP’s statutory role, and its extensive and professional efforts to curtail the virus’s spread. See generally Federal Bureau of Prisons, COVID19 Action Plan (Mar. 13, 2020, 3:09 PM). Given BOP’s shared desire for a safe and healthy prison environment, we conclude that strict compliance with § 3582(c)(1)(A)’s exhaustion requirement takes on added — and critical — importance. And given the Attorney General’s directive that BOP “prioritize the use of [its] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic,” we anticipate that the exhaustion requirement will be speedily dispatched in cases like this one.

BOP’s action plan? How’s that working out? The BOP sends COs back to work after being exposed to an inmate with COVID-19 who later died, The BOP fudges the numbers. The BOP denies any problems with halfway houses. Strong arguments exist that the BOP’s approach to COVID-19 has been ham-handed.

coronadog200323That is hardly the only problem with the slapdash decision. The Circuit held that before defendants file a motion in court for compassionate release under § 3582(c)(1)(A), they “must ask the Bureau of Prisons (BOP) to do so on their behalf, give BOP thirty days to respond, and exhaust any available administrative appeals. See § 3582(c)(1)(A).”

Yesterday, Raia’s attorneys filed a motion for clarification with the 3rd Circuit, asking that the court at least correct that holding to require defendants to exhaust remedies or wait 30 days, but not both. The government does not oppose the motion, which argues that

It is critically important that the Court’s opinion be clear on § 3582(c)(1)(A)’s requirements. As the Court recognized, COVID-19 poses serious risks within the federal prison system, particularly to high-risk inmates such as Mr. Raia. Now more than ever, individualized determinations of compassionate release must be made as expeditiously as the law permits. Any suggestion that defendants must both wait thirty days and exhaust administrative appeals will inevitably lead to confusion among the district courts and delays in adjudicating properly filed compassionate-release motions, potentially with life-or-death consequences.

Ohio State University law professor Doug Berman argued last Saturday in his Sentencing Law and Policy blog that the Circuit’s ruling “creates the problematic impression that “30-day lapsing/exhaustion” language in 18 U.S.C. § 3582(c)(1)(A) is tantamount to a jurisdictional bar to the granting of a sentence reduction motion. But the language and structure of this requirement makes it appear much more like what the Supreme Court calls ‘nonjurisdictional claim-processing rules’… With COVID-19 making every day matter, this is a critically important distinction because claim-processing rules can be forfeited if not raised by a party and might be subject to equitable exceptions. In other words, if and when the ‘30-day lapsing/exhaustion’ language is properly understood by courts as a claim-processing rules, then courts can… decide that the requirement need not be meet given the equities of a particular case.”

timewaits200325Berman rightly notes that “sentence reduction motions under § 3582(c)(1)(A) have become hugely important in the coronavirus world of federal sentencing. As SDNY Chief Judge Coleen McMahon astutely stated this week in US v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) ‘releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19’.”

This is an awful decision, and what’s worse, an unnecessary one. The Court has already denied the appeal when it adds its “oh, by the way,” that the defendant had not exhausted administrative remedies (and does so in a misstatement of the statute that would earn a first-year law student a failing grade).

My belief that the Raia decision is an intellectual “drive-by shooting” of established administrative exhaustion waiver law is shared by others. In the New Jersey Law Journal, Christopher Adams, chairman of the criminal defense and regulatory practice group at Greenbaum, Rowe, Smith & Davis in Woodbridge, New Jersey, observed that prisoners may be able to sidestep § 3582(c)(1)’s 30-day requirement based on vulnerability to the coronavirus, because Raia fails to address a 1992 U.S. Supreme Court case, McCarthy v. Madigan, allowing prisoners to bypass administrative procedure based on equitable considerations. The 1992 case found exceptions to the 30-day requirement where such a waiting period would prejudice the subsequent court action, where the administrative process lacks authority to grant adequate relief, and where pursuing the administrative remedy would expose the petitioner to undue prejudice.

“I will continue to make these applications to district court. I would encourage people to try,” the NJLJ quoted Adams as saying. “Raia doesn’t close the door to compassionate relief applications, even when the administrative remedy is not observed. I admit, the circuit, in Raia, makes it much harder, but it doesn’t close the door completely.”

screwpooch200407I am glad Raia’s counsel – who screwed this pooch to begin with – at least sought clarification of the ruling. It would be far better to seek a rehearing pointing out to the court that it should withdraw the exhaustion portion of the opinion altogether.

United States v. Raia, 2020 U.S. App. LEXIS 10582 (3rd Cir. Apr 2, 2020)

Unopposed Motion to Amend Opinion, United States v. Raia (filed Apr 6, 2020)

Sentencing Law and Policy, Misguided dicta from Third Circuit panel on procedural aspects of sentence reduction motions under § 3582(c)(1)(A) (Apr 4)

New Jersey Law Journal, After 3rd Circuit Setback, Defense Lawyers Look for New Path for COVID-19 Compassionate Release (Apr. 6)

– Thomas L. Root

Barr Doubles Down on Quick Home Confinement for At-Risk Inmates – Update for April 6, 2020

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

CAN YOU HEAR ME NOW?

plague200406A week ago, America had 136,000 COVID-19 cases with 2,052 deaths. As of 6 am EDT today, the nation had over 336,830 cases and 9,618 deaths. A week ago, the Bureau of Prisons reported 14 inmates and 13 staff down with the virus. As of 3 pm yesterday, the BOP had 138 inmates and 59 staff down with the virus at Atlanta, Brooklyn, Bennettsville, the Butner complex; Canaan; Carswell; Chicago; Danbury; Elkton; Forrest City; Ft. Dix; Leavenworth, Lompoc, Milan, New York, Oakdale, Otisville, Ray Brook, Talladega, Tucson, the Yazoo City complex, and several RRC offices and facilities.

Also a week ago, Attorney General William Barr urged the BOP to use its statutory authority to release low-risk inmates at heightened risk because of COVID-19. Since then, response has been spotty: at some places, staff has quickly and efficiently carried out the directive, at others, staff is reviewing only people over 65, and at one institution I heard about, the warden told inmates that despite the Barr memo “no one was going anywhere.”

Meanwhile, inmates have begun dying, five at Oakdale and three at Elkton. Danbury has 21 female inmates down with COVID-19, and Lompoc has 17 sick male inmates.

Last Friday, maybe out of desperation as the virus spread, maybe out of irritation with the BOP’s snail pace, Barr issued another memo to BOP Director Michael Carvajal, “directing you to immediately review all inmates who have COVID-19 risk factors, as established by the CDC, starting with the inmates incarcerated at FCI Oakdale, FCI Danbury, FCI Elkton, and similarly situated facilities where you determine that COVID-19 is materially affecting operations. You should begin implementing this directive immediately at the facilities I have specifically identified and any other facilities facing similarly serious problems.”

The memo ordered that the BOP’s review should “include all at-risk inmates—not only those who were previously eligible for transfer.” The eligible inmates should immediately be processed for transfer to home confinement and put in 14-day quarantine.

hearme200406Noting that the US Probation Office is unable to monitor large numbers of inmates in the community, Barr “authorize[d] BOP to transfer inmates to home confinement even if electronic monitoring is not available, so long as BOP determines in every such instance that doing so is appropriate and consistent with our obligation to protect public safety.”

It almost seems that Barr is asking the BOP, “Can you hear me now?”

The directive that the BOP use its CARES Act § 12003(b)(2) authority will clearly cause some disparities in treatment. By focusing on institutions where the COVID-19 is present, nearly 100 facilities may see few if any releases for now. Furthermore, the release may skew strongly in favor of minimum-security inmates.

Kyle O’Dowd, associate executive director of policy for the National Association of Criminal Defense Lawyers, expressed his concern to Law360 a week ago that the release directive “won’t be implemented as robustly as it needs to be. There is a history of BOP being pretty conservative in their application of authorities they already have.” He was especially concerned that PATTERN scores would be used as a basis for home confinement decisions. “”If it is relied on too heavily, I think we will see just a trickle of releases rather than the more expansive application of that authority that we need under the current circumstances,” he said.

corona200313The BOP, of course, is in the middle of a 14-day lockdown, intended to arrest the spread of COVID-19. The action, started April 2, is subject to extension. One criminal justice advocate expressed disappointment in the lockdown, saying it is likely to aggravate problems related to the virus, not ameliorate them.

“How incredibly short-sighted, contrary to the advice of any experts, and inhumane,” Chris Geidner of the Justice Collaborative wrote on Twitter. The Week complained that the lockdown may be “too little, too late. Inmates will remain packed in close quarters, eating and bathing communally, disproportionately likely to have comorbidities which exacerbate the risk posed by COVID-19, and too often stuck with insufficient medical care or hygiene supplies.”

At the same time, there is ample concern that the BOP is not an especially trustworthy arbiter of home confinement decisions, based on its COVID-19 record to date. A week ago, the Washington Post noted that the BOP “updates confirmed coronavirus cases most afternoons on its website, but there has been a lag between cases reported by the officers’ union and prison officials.” It observed that BOP staff at Oakdale had “asked prison officials — weeks before the first coronavirus case — to shut down a prison labor program within the facility, where more than 100 prisoners make inmate clothing.” According to correctional officers union official Corey Trammel, the UNICOR line was not shut down until after the first inmate tested positive.

And although the BOP has admitted to COVID-19 outbreaks at BOP-contracted halfway houses in five locations, it told a reporter for The Appeal that it had “no factual evidence to support… allegations” that the facilities were at high risk for coronavirus outbreak.

plagueB200406Most damning, however, might be last Friday’s Marshall Project report that Dr. Sylvie Cohen, the BOP’s chief of occupational and employee health, ordered several Oakdale staff members back to work the day after they took inmate Patrick Jones (who later became the BOP’s first COVID-19 death) to the hospital. The correctional officers were issued no protective equipment other than latex gloves. Dr. Cohen, according to the story, directed that “officers should work unless they showed symptoms. This contradicts the recommendations the Centers for Disease Control was giving for first responders and other frontline workers and the specialized guidance it issued a day later for prisons and jails, calling for people who have had close contact with a confirmed case of COVID-19 to isolate themselves at home for 14 days.”

Like the Post, The Marshall Project suggested that the BOP’s official count of inmates and staff with COVID-19 was low. “Union officials say the toll is much higher,” the story noted. “On Wednesday,” the story reported, “prison brass met with a few dozen people held at the camp to discuss the virus, according to two of their family members. ‘Look, we probably all have it,’ officials told the prisoners, according to the wife of one man who attended. ‘It’s too late for us.’ They apologized, and said they were scared too, said the woman…”

Dept. of Justice, Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3)

Law 360, Federal Prisons Can Send More Inmates Home. Will They? (Mar. 26)

Washington Post, An explosion of coronavirus cases cripples a federal prison in Louisiana (Mar. 29)

Politico, Federal prisons start 14-day lockdown to fight virus (Apr 1)

The Week, When a prisoner dies of coronavirus, is the virus really to blame? (Apr. 2)

The Appeal, Halfway House Residents Describe ‘A Scary Situation’ As Coronavirus Sweeps the U.S. (Mar. 31)

The Marshall Project, Federal Prisons Agency “Put Staff in Harm’s Way” of Coronavirus (Apr. 3)

– Thomas L. Root

BOP Records First COVID-19 Death As Congress OKs Expanded Home Confinement – Update for March 30, 2020

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

BARR AND THE CARES ACT

death200330A week ago, America had 35,000 COVID-19 cases with 40 deaths. As of this morning, the nation has over 143,000 cases and 2,052 deaths. The Federal Bureau of Prisons’ very questionable numbers, as of yesterday, showed 14 inmates and 13 staff down with the virus. The actual inmate number is undoubtedly much higher than what the BOP is willing to admit.

On Saturday night, a low-security inmate at FCI Oakdale I, 49-year old Patrick Jones, became the BOP’s first COVID-19 death. Jones, 49, was transferred to a hospital on March 19, days before the BOP admitted to having any inmates who had tested positive for COVID-19. He was placed on a ventilator the next day. Jones, who suffered from “long-term, pre-existing medical conditions” considered risk factors for severe coronavirus illness, died Saturday at the hospital, a BOP news release said.

Last Thursday, Attorney General William Barr instructed the Bureau of Prisons to “prioritize the use of your statutory authorities to grant home confinement for inmates” in response to the virus.

That “statutory authority” got a lot broader the next day, when Congress passed The CARES Act, which President Trump signed the same day. Buried in its 373 pages is a single section devoted to the BOP.  Section 12003(b)(2) provides that

(2) HOME CONFINEMENT AUTHORITY.—During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.

emergency200330The “covered emergency period” began when Trump declared a national emergency and ends 30 days after he declares that the emergency has ended.

Under 18 USC § 3624(c)(2), the BOP can send an inmate to home confinement for not more than 10% of his or her sentence, up to a maximum of 6 months. The CARES Act provision has lifted the 10%/6-month limitation. This means that the BOP can send anyone with anything short of a life sentence to home confinement right away.

Sec. 12003 provides no guidance whatsoever as to how the BOP should pick the people to go to home confinement, or even if it should send anyone at all. However, Sec. 12003(c)(2) exempts any BOP rules on how to do it from the notice-and-comment requirements of the Administrative Procedure Act, which means the BOP can roll out its own rules immediately.

The CARES Act passage makes Barr’s Thursday memo much more important. While the only authority the BOP has to wield as of Thursday was the Elderly Offender Home Detention Program (34 USC § 60541(g)(5)), it can now move many more people. Barr’s memo specified what the BOP should consider in making its decisions:

• inmate’s age and vulnerability to COVID-19 under Centers for Disease Control and Prevention (CDC) guidelines;

• The inmate’s security level, with priority given to inmates residing in low and minimum security facilities;

• The inmate’s conduct in prison, with inmates who have engaged in violent or gang-related activity in prison or who have incurred a BOP violation within the last year not receiving priority treatment;

• The inmate’s PATTERN score, with inmates who have anything above a minimum score not receiving priority treatment;

• Whether the inmate has a “demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility;” and

• The inmate’s crime of conviction, and assessment of the danger posed by the inmate to the community.

The memo stated that “some offenses, such as sex offenses, will render an inmate ineligible for home detention. Other serious offenses should weigh more heavily against consideration for home detention.”

BOP proposes holding anyone it releases in quarantine for 14 days prior to release to home confinement.

corona200313How much of this will happen? The devil’s in the details. The U.S. Probation Office has to approved residences for people going to home confinement, and Probation monitors people once they go home (usually with ankle monitors). There is a real possibility for a bottleneck as the U.S. Probation Office runs short of people to approve residences and of ankle monitors with which to take home confinement detainees.

Yesterday, the Marshall Project complained that Barr’s memo blocks anyone convicted of a sex offense or violent crime from being released to home confinement. DOJ policy also bars all non-citizens convicted of immigration-related offenses from serving out their time at home. Neither “sex crime” nor “violent crime” is defined in the memo, leaving the interpretation to the BOP. Note that The CARES Act leaves implementation of expanded home confinement to the BOP’s discretion.

Of course, nothing in the Barr memo or The CARES Act limits anyone’s right – even people with sex offenses or violent crimes – to seek compassionate release under 18 USC § 3582(c)(1)(A)(i).

Washington Post, An explosion of coronavirus cases cripples a federal prison in Louisiana (Mar. 29, 2020)

William Barr, Prioritizarion of Home Confinement as Appropriate In Response to COVID-19 Pandemic (Mar. 26, 2020)

The CARES Act, H.R. 748 (signed into law Mar. 27, 2020)

The Marshall Project, How Bill Barr’s COVID-19 Prisoner Release Plan Could Favor White People (Mar 28, 2020)

– Thomas L. Root

BOP Hunkers Down for COVID-19 – Update for March 16, 2020

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

UNDER PRESSURE, BOP ROLLS OUT CORONAVIRUS PLAN

As of Sunday night, the novel coronavirus (COVID-19) has sickened over 169,000 people worldwide. More than 6,500 people have died. Confirmed cases in the US exceed 3,750, with over 69 deaths.

corona200313A week ago, the Bureau of Prisons began using a screening tool that includes question about whether inmates or staff members have traveled through any risk countries, had close contact with anyone diagnosed with COVID-19 or been in areas with the virus within two weeks. The tool also assessed possible symptoms, including fever, cough and shortness of breath, the Associated Press reported.

The New York Daily News reported last Monday that the local Federal Defenders organization presented the BOP with “a five-step plan… to handle coronavirus, including a comprehensive testing protocol and requesting that no new inmates be housed at the jails without being tested for the virus first.” The Defenders were focused on the troubled MCC New York – where Jeffrey Epstein died – and MDC Brooklyn, which together hold about 2,300 inmates.

Also on Monday, 15 Democratic senators sent BOP Director Michael Carvajal a letter expressing concern about a possible COVID-19 outbreak in federal prisons. “Over 175,000 individuals are incarcerated in federal prisons and jails, and thousands of incarcerated people, their families and friends, and correctional staff move in and out of federal prisons every day,” according to the March 9 letter. “The unconstrained spread of coronavirus in federal prisons and jails endangers the federal prison population, correctional staff and the general public.”

By Thursday, the BOP addressed mounting concern from lawmakers, union officials and criminal justice advocacy groups that federal prisons aren’t equipped to manage a spread of coronavirus in the prison population. Rep. Jerrold Nadler (D-New York), chairman of the House Judiciary Committee, added to the pile-on with a letter to Attorney General William Barr that demanded answers on BOP preparedness for the inevitable spread of COVID-19 to federal facilities. Nadler said he was “especially concerned because the incarcerated and justice-involved populations contain a number of groups that may be particularly vulnerable to COVID-19. In particular, health conditions that make respiratory diseases more dangerous are far more common in the incarcerated population than in the general U.S. population.”

The BOP told the largest federal correction officers union during a meeting on Thursday that it was poised to announce major steps to deal with the challenge. Joe Rojas, a regional union official, said, “The Justice Department needs to be proactive instead of reactive.” Rojas said there have already been scares in BOP facilities in Seattle and Miami.

visitsuspend200316

Then, the BOP announced Friday afternoon that it was canceling visitation for 30 days, curtailing legal visits, suspending inmate transfers, and suspending use of volunteers and non-essential contractors. Additionally, the Bureau said it will modify “operations to maximize social distancing and limit group gatherings in our facilities. For example, depending on the facility’s population and physical layout, the institution may implement staggered meal times, recreation, etc. These modifications will be reevaluated in 30 days.”

Nevertheless, union officials and inmate advocates warn that the combination of chronic understaffing, a new leave policy and the realities of coronavirus quarantines could lead to the first nationwide federal prison lockdown since 1995. Aaron McGlothin, head of the local union at FCI Mendota in California, said, “You’ve got to understand we’re in a prison — there’s nowhere to go,” he stressed. “If somebody comes down sick, what are you going to do? Everybody’s going to get sick.”

Union officials are also questioning a BOP leave policy issued in an internal memo last Monday. The policy says staff who contract the coronavirus and have symptoms must use sick leave to self-quarantine. The memo said it follows guidance from Office of Personnel Management, which advises the federal government workforce on leave policies. Union officials, however, complain the policy discourages those who have the virus from staying out as long as necessary.

BOP prison employees receive about 13 days of sick leave a year. But the Centers for Disease Control and Prevention recommends 14 days of isolation for those who only have been exposed and says those who are sick should remain quarantined until medically cleared, which could be much longer.

prisonhealth200313That means most BOP employees would have to borrow time they had not yet accrued if they do get sick. And even then, it might not cover the full time needed to get better and no longer be contagious. “I wouldn’t want to give them any excuse or reason to come back in before they’re ready,” said Rick Heldreth, the local union president at FCI Hazelton. That’s in contrast to BOP guidance for those who have potentially come in contact with the virus but have no symptoms: They are allowed to use administrative “weather and safety” leave for up to 14 days.

“Everybody is saying, what the hell does this mean? If you have the symptoms? If you don’t have the symptoms?” said Rojas. “It’s just a mess.”

Conditions could deteriorate to a lockdown or mass outbreak situation, Rojas said. It’s been more than 24 years since the entire BOP was locked down. At that time, inmates were fed in their rooms and all recreational activities were canceled following a series of prison unrest incidents in 1995.

Kaiser Health News, Coronavirus Puts Prisons in Tight Spot Amid Staff Shortages, Threats of Lockdown (Mar. 13)

Newsweek, Coronavirus Could Cause ‘Public Health Catastrophe’ in Overcrowded Jails Warns Prison Reform Group The Sentencing Project (Mar. 11)

AP, US prisons, jails on alert for spread of coronavirus (Mar. 7)

Bloomberg Quint, Prisons’ Coronavirus Risk Puts Justice Department Under Pressure (Mar. 13)

BOP, Federal Bureau of Prisons COVID-19 Action Plan (Mar. 13)

– Thomas L. Root