We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SENATORS UNHAPPY OVER FIRST STEP IMPLEMENTATIONS
Last Thursday’s Senate Judiciary Committee Oversight hearing opened with Committee chair Richard Durbin (D-Illinois) and Ranking Member Charles Grassley (R-Iowa) both blasting the BOP not just for its failures in placing inmates in home confinement, but for the PATTERN recidivism tool – which Durbin called “deeply flawed” – and for what they see as BOP slow-walking implementation of First Step Act programming.
Durbin complained that PATTERN contained “stunning racial disparity in inmate classification, and that the BOP’s proposed rule for awarding earned time credit – which requires 240 actual hours of programs for one month’s credit – “severely limits the ability to earn these credits, and that undermines participation.”
“Our prison system at the federal level is failing,” Durbin said in his opening remarks, “failing to fulfill its fundamental purpose, the rehabilitation of incarcerated individuals.”
Grassley said he was “disheartened with the lackluster implementation of the First Step Act. “The DOJ and Bureau of Prisons are implementing the First Step Act as if they want it to fail. I hope this is not true but actions speak louder than words.”
BOP Director Michael Carvajal said that COVID had hampered full rollout of the programming inmates could complete for earned credits that reduced their sentences, but Grassley responded, “I don’t think that national emergency can be used as a scapegoat… It seems like the Justice Department and the Bureau of Prisons have failed in this effort… Even if it isn’t so, at some point it becomes a perception, and perceptions become a reality.”
Carvajal told the Committee that about 50% of the 125,000 inmates reviewed were eligible to take programming for earned time credits. He told the Committee that last year, “even through COVID, we had over 25,000 inmates complete a program for time credit.”
This was a surprising admission, in my view. In litigation, the BOP has argued that its obligation to implement the evidence-based reduction programs and award Earned Time credits will not take effect until January 2022. That position – already rejected by several courts – seems to be undercut by Carvajal’s statement to lawmakers that 25,000 inmates got some ETC credit during 2020.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
DOJ RELAXES PATTERN SCORE LIMITATION FOR CARES ACT HOME CONFINEMENT
Bureau of Prisons Director Michael Carvajal last Thursday told the Senate Judiciary Committee that the Dept of Justice has modified the CARES Act home confinement criteria to qualify people whose PATTERN recidivism scores are “low” for home confinement.
A memorandum apparently has been issued, because in a FAMM press release issued on Friday, FAMM president Kevin Ring said “We’re grateful that the new administration heeded the widespread calls to make more people eligible for home confinement. The original criteria were too narrow.”
Although I tried Friday and over the weekend to obtain a copy of the memo, I was not able to. The Ring statement suggests that more than one standard may have changed, but nothing else has been confirmed. I have heard a rumor as to what that change might have been, but I try not to deal in rumors, so I am awaiting confirmation.
The DOJ decision to expand CARES Act home confinement at this time suggests that the Administration does not intend to stop COVID home confinement placement anytime soon, despite the fact that all inmates will have access to vaccine within the next month. Carvajal told the Committee, “We are working to get as many people as are appropriate out within the criteria we are given.”
Sen Charles Grassley (R-Iowa) complained to Carvajal that the BOP’s use of “home confinement fails to comply with the First Step Act.”
Committee Chair Richard Durbin (D-Illinois) was even blunter, asking Carvajal whether he had been directed to make eligibility for CARES Act home confinement as restrictive as possible. He said of the 230 BOP inmate COVID deaths, “These were preventable deaths. It is clear that the Bureau has been far too rigid in approving transfers to home confinement and to approve compassionate release. This is part of a broader issue of mismanagement.”
Carvajal told the Committee that the BOP, which has about 4,500 prisoners on home confinement under the CARES Act, has always followed DOJ guidance. No one asked him about the BOP’s own gloss on those criteria, which was the April 22, 2020, BOP memo requiring 50% of the sentence to be served (a standard from which the BOP said it could deviate “in its discretion,” if, for example, your name is Paul Manafort or Chaka Fattah).
Carvajal said the home confinement program has been a success. Right now, over 4,500 inmates are at home under the CARES Act, while only 151 have been returned to prison, 26 of which for escape from monitoring, and only three for new crimes (only one of which was violent).
Many Committee members expressed dismay at the January 15 DOJ Office of Legal Counsel opinion that CARES Act confinees have to return to prison when the pandemic ends. Carvajal said about 2,400 of the CARES Act confinees have more than a year left on their sentences, and about 310 of those have more than five years to do. He said the BOP just wants guidance: “I ask that the statute be changed, or that we work with the DOJ… I don’t want somebody to believe that the Bureau of Prisons somehow doesn’t want to let someone out.”
But if the confinees are sent back, Carvajal said the BOP is prepared to handle the influx. Not everyone agrees. “We don’t have the staff,” Council of Prison Locals Southeast Regional Vice President Joe Rojas told Reuters. “We are already in chaos as it is, as an agency.”
Durbin and Grassley said they would ask the new Attorney General to withdraw the January OLJ memorandum, or – if that failed – they would seek to change the statute.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
LOBBYING EFFORT ON CARES ACT HOME CONFINEMENT MAY BE BEARING FRUIT
FAMM started to turn up the heat last week on an effort to get President Joe Biden and Attorney General Merrick Garland to rescind the January 15 memo from DOJ’s Office of Legal Counsel that would lead to the return of people now on home confinement under CARES Act placement to federal prison when the pandemic ends.
The memo was a prime topic yesterday when Bureau of Prisons Director Michael Carvajal testified before the Senate Judiciary Committee. Judging from the questions coming from both Republicans and Democrats on the Senate Judiciary Committee (with the exception of the execrable Sen. Tom Cotton [R-Klingon Empire] and Sen. Josh Hawley [R-Mongol Horde]), the FAMM campaign is bearing fruit.
The OLC memo, issued in the final days of the Trump administration, would force the BOP to send several thousand people currently on home confinement. Carvajal said it would probably affect somewhere around 2,500 people now on home confinement with a year or more to go on their sentences. A few more than 300 have lengthy sentences left. Of the group, he said 21 have been returned to BOP custody, but only two of those were because of new criminal conduct.
The memo is incorrect as a matter of law and would impose devastating human costs, as well as a negative impact on public safety. Sen. Richard Durbin (D-Illinois), chair of the Committee, said yesterday he was writing to Garland to urge him to reconsider his predecessor’s opinion.
FAMM and 28 other advocacy groups sent a letter to Biden and Garland on April 1st. FAMM has launched the “Keep Them Home” campaign, and is both collecting signatures on a petition and calling on people to call Garland’s office in order to get the Administration to rescind the memo.
FAMM president Kevin Ring told The Appeal that those who were released did not expect to have to return to prison. “These folks came home and were told, ‘You’re not going to have to come back,’” Ring said. “They reunited with their families. Some of them have kids who they said, ‘I’m home.’ They said, ‘Do you have to go back, Dad?’ ‘No.’ So this changes everything.”
Earlier, the BOP declined to answer reporters’ questions about the memo, but Joe Rojas, Southeast Regional Vice President of the union representing BOP employees, said sending everyone back to prison would be logistically impossible. “We have no staff,” he told The Sentinel, “We are already in chaos as it is.”
But yesterday, Carvajal said that the BOP has ample space to absorb the home confinees if they were to return. Nevertheless, he expressed no opinion on whether they should come back. The Director noted that the issue is not immediate, because the pandemic emergency has been extended by the President.
My take on Carvajal’s position (for what it’s worth) is that his bias leans toward leaving people who have complied with their home confinement terms at home. He said repeatedly that the BOP’s mission was to successfully return people to the committee, and as long as home confinees are successful at home, there was nothing wrong with leaving them there.
However, Carvajal said that the BOP’s primary interest was to follow the law, and he urged lawmakers to amend the home confinement statute to make clear what should be done.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TWO BILLS CUTTING MANDATORY MINIMUMS, PROPOSING RETROACTIVITY, INTRODUCED IN SENATE
The important but piecemeal work of criminal justice reform continued last week with two significant bills being introduced in the Senate.
(b)(1)(A): The 15-year mandatory minimum for a prior drug offense would drop to 10 years, and the 10-year mandatory minimum floor would drop to 5 years.
(b)(1)(B): The 10-year mandatory minimum for a prior drug offense would drop to 5 years, and the 5-year mandatory minimum floor would drop to 2 years.
Smarter Sentencing would also create a new category of `courier’ for a defendant whose role was limited to transporting or storing drugs or money. The mandatory minimum for a courier under 21 USC § 960, the importation statute, would essentially be cut in half. It would not affect mandatory minimums in 21 USC § 841(b).
Importantly, the bill makes its changes retroactive, enabling people who now have mandatory minimum sentences changed by the bill to ask their judges for a sentence reduction.
Lee and Durbin first introduced the Smarter Sentencing Act in 2013. Several of its provisions made it into the First Step Act, which was enacted into law in 2018, but the changes in mandatory minimums for most drug offenses would not.
“Mandatory minimum penalties have played a large role in the explosion of the U.S. prison population, often leading to sentences that are unfair, fiscally irresponsible, and a threat to public safety,” Sen. Durbin said in a press release. “The First Step Act was a critical move in the right direction, but there is much more work to be done to reform our criminal justice system. I will keep fighting to get this commonsense, bipartisan legislation through the Senate with my colleague, Senator Lee.”
Additionally, the bill corrects a weird anomaly in the First Step Actthat redefined prior drug cases for which a defendant can get an § 851 enhancement (which increases the mandatory minimum where the defendant has certain prior drug convictions) to limit such priors to crimes punishable by more than 10 years for which the defendant was actually sentenced to more than a year. Under the 2018 bill, the change affected people sentenced under §§ 841(b)(1)(A) and (b)(1)(B), but not people sentenced under the lowest level of sentence, § 841(b)(1)(C). S.1014 applies the same “serious drug felony” definition to all three subsections.
The sleeper in S.1014 is that it would let virtually anyone sentenced under § 841(c) prior to the 2018 First Step Act seek a reduction using a procedure a lot like the Fair Sentencing Act retroactivity motions. The sheer number of motions likely to be filed might be enough to give Congress pause on this one.
The bill also refines a number of Sentencing Commission goals – such as keeping down the prison population and ensuring that Guidelines don’t have adverse racial impacts. All of that would be great, but – as Supreme Court Justice Sotomayor noted last week – “currently, six of the seven voting members’ seats are vacant. The votes of at least four members are required for the Commission to promulgate amendments to the Guidelines.” The Commission has been paralyzed by lack of quorum since December 2018. The Senate has to confirm at least three new members – and none has yet been nominated by President Biden – before the Commission can do anything.
As for the two new bills, introduction hardly means approval. While Ohio State law professor Doug Berman is skeptical of their chances, he notes that “prior iterations of [the Smarter Sentencing Act] got votes in Senate Judiciary Committee from the likes of Ted Cruz and Rand Paul. Moreover, the current chair of the Senate Judiciary Committee is Senator Durbin and the current President campaigned on a platform that included an express promise to work for the passage of legislation to repeal mandatory minimums at the federal level. Given that commitment, Prez Biden should be a vocal supporter of this bill or should oppose it only because it does not go far enough because it merely seeks to ‘reduce mandatory minimum penalties for certain nonviolent drug offenses,’ rather than entirely eliminate them.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
WASHINGTON WEEK: SEEKING CLEMENCY FOR SOME LADIES
“I won!”
Congresswomen Cori Bush (D-Missouri) and Ayanna Pressley (D-Massachusetts) last Friday joined with the National Council for Incarcerated & Formerly Incarcerated Women and Girls’ initiative calling on President Joseph Biden to grant 100 women clemency in his first 100 days in office. Speaking at an event held outside the White House, Pressley told the President “to exercise his clemency authority,” adding he can grant clemency to the 100 women “by the stroke of a pen.”
Vox said several weeks ago that “advocates want Biden to act quickly” on clemency. “They point to epidemics of Covid-19 in jails and prisons, which could be eased if there were fewer people in those settings to spread the coronavirus. And they argue that acting too slowly would repeat the mistakes of Biden’s predecessors, who, if they moved on clemency at all, did so too late during their terms to do the long, hard work of broader reforms.”
Acting quickly on clemency is a great idea, but “100 women in 100 days” is nothing but a political stunt. The greatest danger in a proposal like this one is that if Biden knuckles under, 100 inmates get clemency, and then the Administration will check clemency off its “to-do” list, moving on to the next domestic issue. The problem with the clemency system – beyond the obvious, that 14,000 petitions are pending, many for years – is that the arbitrariness and bias of a system that relies on mercy from the very people who make their careers locking up defendants has a systemic infirmity that must be addressed. A political stunt that relies on an alliterative label – ‘100 in 100…’, like there’s something significant about the base-10 number system – simply detracts from the serious work to be done while delivering commonsense mercy in a scattershot and ineffective way.
The well-meaning people behind this have little idea of the effect of their Lafayette Park theatre on the inmates. I have had several emails this week from women inmates informing me that a list of 100 inmates was handed to the President in the Oval Office, and that he was ready to act. They wondered if they were on the list. Oh, if life only imitated rumor…
Why not simply distribute 151,703 scratch-off cards to the BOP population, with only 100 winners among them? That approach would make as much sense, while adding a bit of drama and excitement to the event.
Last Tuesday, Representatives Hakeem Jeffries (D-New York), Bobby Scott (D-Virginia), Kelly Armstrong (R-North Dakota), and Don Bacon (R-Nebraska) introduced the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act in the House. The bipartisan legislation would eliminate the federal crack and powder cocaine sentencing disparity and retroactively apply it to those already convicted or sentenced.
The measure is identical to the measure introduced in the Senate by Cory Booker (D-New Jersey) and Richard Durbin (D-Illinois) five weeks ago.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
The Act, a similar version of which was introduced last year but died without a vote, would prohibit federal courts from using conduct for which a defendant was acquitted as factors to pump up Guidelines scores.
The problem is this: Donnie Dopehead is charged with two drug counts, one for distributing 100 kilos of marijuana and the other for selling 15 grams of cocaine. The Feds have Donnie dead to rights on the coke: as he sold it to his customers, a busload of nuns was stopped at the light, and they all saw it happen. But the marijuana beef is based on the vague testimony of a demented neighbor with poor eyesight, who – on the witness stand – admits it may have been bales of hay, not marijuana, and the guy unloading it may have been Clarence Crackfiend, not Donnie.
The jury acquits Donnie of the pot, but convicts on the coke.
If Donnie had no prior criminal record, his sentencing range for the cocaine of which he was convicted would be 10-16 months. But at sentencing, the court will also consider the marijuana, if it finds by a preponderance of the evidence that Donnie dealt it. In sentencing law, “preponderance” seems to mean that the prosecutor said it, and that’s good enough for the judge. With the pot added in, Donnie’s Guideline sentencing range is 51-63 months.
The thinking (and I employ that term loosely) is that just because the jury said the government hadn’t proved the pot charge beyond a reasonable doubt didn’t mean that it hadn’t been proved by a preponderance of the evidence. And the lower evidentiary standard, coupled with the loosey-goosey procedural protections of a sentencing proceeding, means that the defendant has little of avoiding a five-year sentence for what should be more like 12 months.
An identical bill, backed by a long list of conservative and liberal advocacy groups, is being introduced in the House by Reps Steve Cohen (D-Tennessee) and Kelly Armstrong (R-North Dakota).
You may reasonably suspect that this bill, along with the Safer Detention Act and other measures may be rolled together in a larger criminal justice package later this year.
Meanwhile, a Washington Post article last week kicked off a series on the horror that is the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Back in 1996, Congress took a chisel to habeas corpus, adopting procedural limitations that make arguing the merits of 2254 and 2255 motions – especially second ones – a byzantine nightmare, a “thicket of real through-the-looking-glass shit,” according to one long-time defense attorney.
The Post series will “look at how the AEDPA was passed, how it works in the real world, the injustices it has wrought and what we can do to fix it. The good news is that much of this can be fixed. Congress could repeal or reform the AEDPA tomorrow. And for all the criticism of his criminal justice record — most of it justified — Joe Biden was one of the most vocal critics of the AEDPA’s habeas provisions. The then-senator warned of dire consequences if those provisions passed. History has proved him right.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THE ODD COUPLE ARE BACK… WITH A WELCOME BILL
Senate Judiciary Committee chairman Richard Durbin (D-Illinois) and Sen Chuck Grassley (R-Iowa), Ranking Republican on the Committee are a political odd couple if ever there was one. Liberal lion Durbin from uber-Democrat Illinois and an octogenarian raised-on-the-farm Republican seem to have nothing in common, but…
The Elderly Offender program lets old folks (age 60 and above, so that includes your correspondent) – non-violent criminals whose continued incarceration cost the Bureau of Prison so much in medical expenses – serve the last third of their sentences on home confinement (where they pay for their room, board and medical, not Uncle Sam). That seems like a sweet deal for them and for the government.
But trust the Bureau to manage to screw up a one-car parade. The BOP decided that two-thirds of the sentence meant two-thirds of the whole sentence, not for the good-time adjusted sentence that everyone ends up serving. So an aged fraudster with a 100-month sentence – who will serve 85 months with good conduct time figured in – doesn’t get home confinement starting at 66.7% of 85 months, but instead must serve 66.7% of 100 months before he goes to home detention.
That’s not what Congress ever meant, as the House explained to the BOP last year in the HEROES Act (H.R.6800), which modified the statute to say as much). But HEROES never got a vote in the Senate.
Now, Durbin’s and Grassley’s COVID-19 Safer Detention Act would clarify that the amount of time an inmate must serve to qualify for Elderly Home Detention should be calculated based on his or her 85% date, not the gross sentence. Additionally, the bill would reduce the minimum sentence for Elderly Home Detention from 66% to 50%, and give inmates who are denied Elderly Home Detention the right of judicial review.
The bill also proposes providing that COVID-19 vulnerability is a legitimate basis for compassionate release, and shortening the period prisoners must wait after submitting requests to the BOP to file with their courts from 30 to 10 days.
Three Republican and three Democrats have joined in sponsoring the bill. Ohio State law professor Doug Berman said last week in his Sentencing Law and Policy blog, “Senators Durbin and Grassley are now the leading member of the Senate Judiciary Committee, which would seem to improve the odds of this bill moving forward.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
HEY, FATSO! YOU’VE GOT COVID-19!
The Centers for Disease Control and Prevention cranked up its warning about obesity and COVID-19 last week. Last spring, if you had a BMI over 40 (6 feet tall and 295 lbs), you were at risk. At the end of June, that dropped to a BMI of 30+. That made a 6-feet tall guy weighing 221 lbs at risk.
Last week, the link between extra pounds and severe Covid-19 grew stronger as the CDC said that people who are merely overweight, not just the obese, may be at high risk of serious disease from the infection. Now, the risk starts with a BMI of 25. Besides the merely overweight (62% of America), smoking has been added to the risk-factor list.
The BOP, which has provided daily COVID-19 numbers since March 2020, dropped weekend reports a few weeks ago. Last Friday, the agency didn’t bother to update its numbers from the day before. Yesterday.s report had 1,745 sick inmates, 736 sick staff, COVID-19 in 119 institutions (98% of all facilities) and 135 inmate deaths.
The latest to die was Robert Pierce, a 52-year old Big Spring inmate, who fell ill September 18 and died last Friday. Meanwhile, the news media reported COVID-19 increases at USP Allenwood, Petersburg Medium, Raybrook and McDowell.
In a pair of letters to Attorney General William P. Barr and BOP Director Michael Carvajal, Senators Elizabeth Warren (D-Massachusetts) and Richard Durbin (D-Illinois) suggest that the agency’s response to coronavirus outbreaks in federal prisons is failing, and they question the BOP’s reliance on solitary confinement to isolate sick prisoners rather than granting compassionate release.
The Washington Post reported last week that “Federal prisoners, corrections staff, government inspectors and civil rights advocates have complained for months that the BOP’s strategies, when useful, are inconsistently applied. The overall inadequate response is leaving a vulnerable population at risk of infection and creating major vectors for transmission more than seven months into the pandemic.”
The BOP’s COVID death toll “is mounting evidence that efforts to contain the virus within BOP facilities are failing,” Durbin Warren wrote to Barr and Carvajal in one of the Oct. 2 letters, which were viewed by The Washington Post.
The Post previously reported that prison staff have raised concerns about a lack of personal protective equipment and unsafe workplace conditions — issues that have prompted federal employees to sue the government. According to reports by the DOJ Office of the Inspector General on federal corrections facilities nationwide, persistent staffing shortage has triggered regular lockdowns during the pandemic in which prisoners aren’t allowed out of their cells, are often unable to shower and face more restrictions than if they were in solitary confinement.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
COVID-19 SPURS LAWMAKERS, CDC
Last week’s upsurge in COVID-19 cases nationally has begun to translate to an increase in Federal Bureau of Prisons inmates with coronavirus. A number that had dwindled last week to 1,256 by last Thursday shot back up to 1,429 as of last night. The inmate death count is 93, with COVID-19 present on 71 prison compounds throughout the BOP system (57% of all facilities).
As of yesterday, the BOP had tested 21,400 inmates, up about 12% from last week. The Bureau is still showing about 30% of inmates tested as positive for COVID-19, and it has only tested about now out of six inmates.
The noteworthy developments in COVID-19 last week, however, were not viral, but rather legislative and medical.
Legislative: Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), principal authors of the First Step Act, last week jointly introduced S.4034, bipartisan legislation to reform the Elderly Offender Home Detention (EOHD) Program and compassionate release.
Sen. Charles Grassley (R-Iowa)
EOHD, authorized by First Step as part of 34 USC § 60541(g), permits the BOP to place prisoners who are 60 years old or older, convicted of non-violent offenses, and with good conduct in home detention for the remainder of their sentences. Compassionate release, expanded by First Step, permits a court to reduce a prisoner’s sentence for extraordinary and compelling reasons, pursuant to 18 USC § 3582(c)(1).
S.4034, dubbed the COVID-19 Safer Detention Act, would reform the EOHD and compassionate release by:
• Clarifying that the percentage of time an inmate needs to qualify for EOHD should calculated based on an inmate’s net sentence, including reductions for good time. Currently, the BOP charily calculates it as two-thirds of the total sentence, not two-thirds of the 85% of the sentence the inmate actually serves. This change has already passed the House by voice vote in HR 4018, which las been languishing in the Senate since last Christmas;
• Cutting the percentage of time an inmate must serve to qualify for EOHD from two-thirds of the sentence to one-half;
• Making “old law” federal prisoners (those convicted prior to 1988) eligible for compassionate release;
• Making DC offenders housed in BOP facilities eligible for EOHD;
• Making denial of EOHD release subject to court review; and
• Providing that during the pandemic, COVID-19 vulnerability is deemed a basis for compassionate release, a statutory change that would prevent the government from trying to convince courts (and some have been convinced) that the pandemic is hardly extraordinary; and
• Shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days. Currently, there is no judicial review of a BOP denial of EOHD, and inmates must ask the BOP to file for compassionate release on their behalf, and wait 30 days for an answer before filing themselves.
Sen. Richard Durbin (D-Illinois)
It is unclear whether the bill will pass, but sponsorship by a Democrat and Republican increases its odds. Hamodia reported that the bill “will likely be attached it to another bill, such as a stimulus bill or the police-reform bill currently being crafted by Sen. Tim Scott (R-S.C.)”
Medical: The other COVID-19 major development last week was medical. Last Thursday, the Centers for Disease Control and Prevention in Atlanta released updated COVID-19 guidelines to adjust the ages and expand the health problems that could make people more likely to have severe complications. The move comes amid the rising number of younger patients and new studies that show the effects of certain conditions.
The new CDC guidelines are crucial for prisoners, because courts determine whether movants for compassionate release qualify according to whether the inmates have one or more of the CDC risk factors.
First, the CDC walked back the “65 and over” risk factor, which many judges have interpreted as being a hard number, denying any health-concern consideration for a 64-year old but treating a 66-year old prisoner as knocking on death’s door.
Instead, CDC highlights that all ages could catch the coronavirus but effects of the infection may get worse as people get older. “There’s not an exact cutoff of age at which people should or should not be concerned,” Jay Butler, the CDC’s deputy director of infectious diseases, said in a news briefing.
Of more relevance to prisoners, the CDC has found that risks associated with obesity start at a much lower level. The CDC had held that only the morbidly obese (body mass index of 42+) were at risk. Now, the CDC says anyone with a BMI of 30 or more is at risk.
Under the old standard, a 50-year old 6-foot tall man would have to weigh 310 lbs. to be at risk. Now, the same guy only has to tip the scales at 225 lbs. to exceed a 30 BMI.
Other conditions CDC identified as elevating COVID-19 risk included chronic kidney disease, COPD, weaker immune system due to organ transplant, heart conditions, sickle cell disease, type 1 and 2 diabetes, asthma, dementia, cerebrovascular diseases, cystic fibrosis, high blood pressure, liver disease, pulmonary fibrosis, and an inherited blood disorder known as thalassemia. The CDC also added pregnancy to the list.
A number of inmates have been denied compassionate release because judges decided their risk factors – such as hypertension and dementia – did not match the risk factors on the prior CDC list. There is no statutory limitation to the number of times an inmate may file for compassionate release (other than the judge’s ire, perhaps), meaning that the changing COVID-19 risk landscape offers prisoners a new shot at release.
COVID-19 Tracker: The Marshall Project is running a state-by-state COVID-19 prison tracker website, which includes “Federal” as a category. The site charts total cases, inmates and staff currently sick, deaths, and new cases by date.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
BAIT AND SWITCH?
For those of you who just came in, the First Step Act, among many other things, mandated that the Federal Bureau of Prisons would employ a state-of-the-art risk and needs assessment program, intended to determine how likely an inmate was to be a recidivist upon release, and what programs would best address the factors making him or her likely to reoffend.
First Step provided that inmates could then earn credits for successfully completing the programming, credits that would enable them to go home earlier or obtain extra halfway house.
It was intended to be a win all around.
The Dept. of Justice conducted a 10-month long study-and-comment period beginning in April 2019 on how to best develop a risk and need assessment program that met First Step standards. That resulted in adoption of PATTERN (“Prisoner Assessment Tool Targeting Estimated Risk and Needs” for you folks who eschew acronyms). PATTERN employed a series of about a dozen static and dynamic factors to provide an aggregate number placing the inmate being tested in the minimum, low, medium or high category.
The original PATTERN factors were very publicly modified last January to lessen the risk that PATTERN might be unconsciously biased so that it returned higher scores for racial minorities. And with that, PATTERN was ready for use.
The BOP announced that all inmates had been rated by PATTERN, but a number of people from different institutions expressed frustration at getting their PATTERN score from BOP staff. A few swore their BOP case managers had no idea what PATTERN even was. Using the revised PATTERN matrix over the past four months, I have helped several people estimate their PATTERN scores. But in almost every case, when the people I helped received their actual PATTERN scores from the BOP, those scores were higher – sometimes much higher – and the reason for the discrepancy was a mystery.
We may now have an answer to the conundrum, but it is not a pretty one. ProPublica, an independent investigative journalism nonprofit, last week reported that it had obtained a 20-page policy document drafted by the BOP earlier this year that altered the PATTERN standards to make “it harder for an inmate to qualify as minimum risk.” The draft document, which does not appear to have been finalized, dramatically changes the maximum number of points for each risk category, according to ProPublica. “It really tanks the whole enterprise if, once an instrument is selected, it can be strategically altered to make sure low-risk people don’t get released,” Brandon Garrett, a Duke University law professor who studies risk assessment, was quoted as saying. “If you change the cut points, you’ve effectively changed the instrument.”
ProPublica said a BOP spokesman had confirmed that the Bureau had revised the risk categories without informing the public. The 2019 report was an “interim report,” ProPublica quotes the spokesman as having said. “The interim report mentioned that DOJ would seek feedback and update the tool accordingly, which was done.” The spokesman said the draft policy document “was not authorized for release.”
So, as Dean Wormer might have said, it’s like a double secret PATTERN score.
Ohio State University law professor Doug Berman wrote in his Sentencing Policy and Law blog that the ProPublica report was “yet another ugly example of how the Department of Justice acts more like a Department of Incarceration.”
The ProPublica report came in a week in which former Trump lawyer Michael Cohen was sent to home confinement, although he has served only a third of his sentence. The Cohen and Paul Manafort releases, a Marshall Project/NBC report said, are “raising questions about the BOP’s opaque process and its fairness.”
ProPublica reported that Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), who were First Step Act co-authors, said last week the DOJ’s inspector general has agreed to examine BOP’s compliance with Barr’s home confinement directive and overall response to the COVID-19 pandemic.
Last Thursday’s Senate Judiciary Committee Oversight hearing opened with Committee chair Richard Durbin (D-Illinois) and Ranking Member Charles Grassley (R-Iowa) both blasting the BOP not just for its failures in placing inmates in home confinement, but for the PATTERN recidivism tool – which Durbin called “deeply flawed” – and for what they see as BOP slow-walking implementation of First Step Act programming.
mergency can be used as a scapegoat… It seems like the Justice Department and the Bureau of Prisons have failed in this effort… Even if it isn’t so, at some point it becomes a perception, and perceptions become a reality.”
