News You Can Use: Recent developments in home confinement in the age of COVID-19

The number of positive-COVID-19 cases in the BOP continues to rise.

As of this morning the BOP reports  138 inmates and 59 staff have tested positive for the virus. The BOP updates this data every afternoon.

On March 26, 2020, Attorney General Barr issued a memorandum to the Director of BOP, outlining a new policy by the United States Department of Justice to deal with confined inmates who are most vulnerable to the COVID-19 virus.  Barr directed BOP to use home confinement “where appropriate, to protect the health and safety of BOP personnel and the people in our custody.” 

Despite that step, barriers remained to release.

On April 1, 2020, the Federal Public & Community Defenders Legislative Committee wrote a letter to AG Barr and urged him to exercise his authority under the CARES Act to allow the BOP to transfer more people to the “relative safety of home confinement.”

On April 3, 2020 (after 7 deaths in BOP custody and uncontained spread in multiple facilities), AG Barr made a CARES-Act finding that “emergency conditions are materially affecting the functioning of the Bureau of Prisons.” He told the BOP to review all inmates with COVID-19 risk factors, starting with FCI Oakdale, FCI Danbury, and FCI Oakton (and “similarly situated” facilities), and to transfer “suitable candidates for home confinement” to home confinement.

The memo directs the BOP to “be guided by the factors in [Barr’s] March 26 Memorandum,” which drastically limits the number of people prioritized for home confinement.  But it also says all inmates with “a suitable confinement plan will generally be appropriate candidates for home confinement rather than continued detention at institutions in which COVID-19 is materially affecting their operations.”

On April 5, 2020, the BOP issued a press release responding to AG Barr’s April 3 memorandum.  BOP says it is reviewing all inmates to determine which ones meet the criteria established by the Attorney General.  While inmates do not need to apply to be considered for home confinement, any inmate who believes they are eligible may request to be referred to Home Confinement and provide a release plan to their Case Manager.

TAKEAWAYS

If you have a client who might be a candidate for home confinement, don’t wait for the BOP to identify them.  Now is the time to figure out a release plan and bring eligibility to the attention of the Case Manager.

The BOP is using the eligibility criteria established by AG Barr as a benchmark for home-confinement determinations:

(1) The age and vulnerability of the inmate to COVID-19;

(2) The security level of the facility;

(3) The inmate’s conduct in prison;

(4) The inmate’s score under PATTERN;

(5) The inmate’s release plan; and

(6) The inmate’s crime of conviction and assessment of danger posed to the community.

But remember that list of criteria is not exhaustive; the BOP must consider the “totality of the circumstances.”

Inmates deemed suitable for home confinement must be immediately processed for transfer out of BOP, but there is still a required 14-day quarantine before the transfer can happen.  Note that AG Barr (in the April 3 memorandum) gave the BOP discretion “on a case-by-case” basis to allow an inmate to quarantine outside the BOP facility “in the residence to which the inmate is being transferred.”

 

 

Resource and Practice Tips: Defender Services Office Training Division announces video presentation on COVID-19 & Pretrial Release

The Administrative Office of the United States Courts, Defender Services Office Training Division has announced that a newly recorded presentation is currently available for viewing on www.fd.org.

This pre-recorded session, COVID-19 & Pretrial Release, is presented by Miles Pope, Assistant Federal Defender, Federal Defender Services of Idaho.

This presentation reviews core principles of constructing effective bail strategies to obtaining our clients’ release from custody during the novel coronavirus (COVID-19) pandemic. As this is a rapidly evolving area of law – and as we are constantly improving our arguments as courts issue rulings and we learn how to deal with the government’s responses to our arguments on protecting our clients’ health – viewers are encouraged to explore the resources regularly being posted on fd.org.

REGISTRATION, VIEWING VIDEO & MATERIALS

To view the presentation, you will need to register for the video. To register, you will need log in credentials for the password protected part of www.fd.org.

For panel attorneys, if you have already applied and been approved for log in credentials, you also have access to the password protected portions of www.fd.org.

For panel attorneys who have not already applied for log in credentials, you will need to do so before you can view the video. In order to apply for credentials, fill out the online application available at this link: http://cjaresources.fd.org/pl_cjaverify.aspx.

Once your application has been approved you will receive an email from “Defender Services Office” with instructions on how to set your password. Once you have taken those steps, you will be able to log in and view the video. It may take several days for you to receive the email.

LINKS TO VIDEO AND MATERIALS

Please use this password-protected link to view the video: https://www.fd.org/program-materials/tips-getting-your-client-released-detention-during-pandemic-covid-19-pretrial.

Materials associated with this presentation and other COVID-19 issues, can be found by clicking here.

 

Resource: Webinar – Expanding Pretrial Release in the Age of COVID-19, April 1, 2020

The ABA is hosting a Zoom webinar tomorrow, April 1, 2020 at 4 pm Eastern / 2 pm Mountain time exploring efforts to seek expanded release, in response to COVID-19, for those detained pretrial. The webinar is sponsored by the ABA Standing Committee on Legal Aid and Indigent Defendants, the ABA Section of Civil Rights and Social Justice, and the ABA Criminal Justice Section. 

You can register for it here.

Resource: Webinar – Due Process Challenges in a Time of Crisis, March 31, 2020

due process

The Due Process Institute is hosting a webinar tomorrow, March 31, 2020 at 3 pm ET (1 pm Mountain Time) to address criminal justice litigation challenges during the COVID-19 pandemic.

According to its website: “The mission of the Due Process Institute is to honor, preserve, and restore those Constitutional rights intended to protect individuals and organizations against the arbitrary exercise of government power. This mission of procedural fairness is a vital one given the erosion of these rights in recent decades. Importantly, due process concerns transcend liberal/conservative labels and therefore we focus on achievable results based on core principles and values that are shared by all Americans.”

Click here to register for the webinar.

 

Resource: COVID-19 and Release Arguments

On March 11, 2020, the World Health Organization officially classified COVID-19 as a pandemic.  COVID-19 is impacting jails and prisons all over the United States. Check out this recent collection of links on the subject from The Sentencing Law and Policy blog. Notably, the BOP is now operating under modified procedures to prevent the spread of the virus. But, commentators have observed that responding to COVID-19 in jails and prisons will be extraordinarily challenging.

Given these rapidly-changing developments, and the direct impact of this health crisis on correctional systems, here are Some Release Arguments in the Time of COVID19.

Also, some courts have found the COVID-19 pandemic to be a new circumstance warranting reopening of detention and/or directly relevant to determining what bail conditions are necessary to reasonably ensure the defendant’s appearance and to protect the community. Take a look at these orders from the Southern District of New York, the District of Columbia, the Central District of California, and the Alaska Court of Appeals.

And consider these cases, finding the public health crisis relevant to release decisions in a wide range of contexts, including home confinement, self surrender, extradition, etc.:

  • Xochihua-James v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (unpublished) (sua sponte releasing detainee from immigration detention “[I]n light of the rapidly escalating public health crisis”)
  • United States v. Jaffee, No. 19-cr-88 (D.D.C. Mar. 26, 2020) (releasing defendant with criminal history in gun & drug case, citing “palpable” risk of spread in jail and “real” risk of “overburdening the jail’s healthcare resources”; “the Court is . . . convinced that incarcerating the defendant while the current COVID-19 crisis continues to expand poses a greater risk to community safety than posed by Defendant’s release to home confinement”)
  • United States v Garlock, No. 18-CR-00418-VC-1, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (citing “chaos” inside federal prisons in sua sponte extending time to self-surrender: “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”)
  • United States v. Perez, No. 19 CR. 297 (PAE), 2020 WL 1329225, at *1 (S.D.N.Y. Mar. 19, 2020) (releasing defendant due to the “heightened risk of dangerous complications should he contract COVID-19”)
  • United States v. Stephens, 2020 WL 1295155, __F. Supp. 3d__ (S.D.N.Y. Mar. 19, 2020) (releasing defendant in light of “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic”)
  • In re Manrigue, 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020) (“The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”)
  • In re Request to Commute or Suspend County Jail Sentences, Docket No. 084230 (N.J. Mar. 22, 2020) (releasing large class of defendants serving time in county jail “in light of the Public Health Emergency” caused by COVID-19)
  • United States v. Matthaei, No. 1:19-CV-00243-BLW, 2020 WL 1443227, at *1 (D. Idaho Mar. 16, 2020) (extending self-surrender date by 90 days in light of COVID-19)
  • United States v. Barkman, 2020 U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020) (suspending intermittent confinement because “[t]here is a pandemic that poses a direct risk if Mr. Barkman . . . is admitted to the inmate population of the Wahoe County Detention Facility”)
  • United States v. Copeland, No. 2:05-cr-135-DCN (D.S.C. Mar. 24, 2020) (granting compassionate release to defendant in part due to “Congress’s desire for courts to release individuals the age defendant is, with the ailments that defendant has during this current pandemic”).

Finally, here is a brief filed in the Eastern District of California with a detailed statement of facts about COVID-19.

Don’t forget to check for updates on the Defender Services Office resource page – we linked to it here: Resource: Defender Services Office Creates Website On COVID-19

 

Resource: The Basics of Community Corrections Litigation in the Time of COVID-19

Many of you are eager to explore community corrections options for clients who are incarcerated during the COVID-19 pandemic.

To that end,  The Sentencing Resource Counsel for the Federal Public and Community Defenders offers up a great resource–Community Corrections Basics. This document contains ideas and options about how to transfer clients to community corrections (halfway house/reentry centers or home confinement) to serve the remainder of their sentences so that they are not incarcerated during the pandemic. Note: we are not talking here about compassionate release, which is an actual reduction of sentence under 18 U.S.C. § 3582(c)(1). If a person is granted compassionate release, they are no longer serving their term of imprisonment.  

The potential beneficiaries for increased time in community corrections are clients who are eligible for community corrections but are scheduled to receive less than the maximum statutory time available under 18 USC 3624(c). Section 3624(c) provides that eligible clients can receive up to one year of community corrections in reentry centers, with the lesser of six months or ten percent of the sentence in home confinement. Notably, the Senate just passed the CARES Act to permit the BOP Director to lengthen the time of permitted home confinement. It is expected to also pass the House tomorrow and be signed by the President.

 

 

Resource: Defender Services Office Creates Website On COVID-19

The coronavirus (COVID-19) is impacting almost all sectors and areas of the United States. The Defender Services Office and the Administrative Office of the United States Courts have created a website with resources concerning the new COVID-19, including: (1) Courts Orders and procedures regarding Judiciary operations from various districts; (2) motions and pleadings addressing concerns and sharing best practices for mitigating the harm of COVID-19 for those impacted by the Federal criminal justice system; (3) links to other resources and information concerning COVID-19.  Note: The resources on the DSO website are not specific to judicial districts in the Tenth Circuit but serve as a good point of departure for best practices during this challenging time.

General orders about COVID-19-related changes to operations and practices in the Tenth Circuit and the District of Colorado can be found  here and here.

Resource: March 19 Webinar – Defending Noncitizen Clients

This is a great opportunity to learn how to better represent non-citizen clients and earn CLE credit – all while maintaining proper social distancing.

Space is still available in the Defender Service Office Training Division’s live webinar, Defending Noncitzens in Today’s Harsh Environment: Considerations for Undocumented Persons, Asylum Seekers, and Legal Permanent Residents. The one-hour webinar will be a live repeat and will take place on Thursday, March 19 at 11:00 Mountain Time (1:00 pm Eastern Time).

This session will address when non-citizens – with a focus on asylum seekers and lawful permanent residents – may be eligible to remain in the United States and explain which types of offenses disqualify such individuals from immigration relief. This session will also address how to put clients in the best possible position to minimize immigration consequences and provide practical tips for plea negotiations. Finally, the session will explain what the immigration process looks like for asylum seekers and LPRs who are facing deportation, and provide practical tips for preparing clients for that process.

More information and registration information available here.

Resource: Defending Clients in a Time of Coronavirus – Webinar Today 3/13/2020 and Other Resources – CORRECTED!

Coronavirus illustration (CDC)

The emerging coronavirus/COVID-19 pandemic is having a major impact on us all, and is sure to impact how we practice and defend our clients.  

This is an emerging situation, and we are all still figuring out best practices. In the meantime, here are some resources to help you advocate for your clients in these challenging times:

  • The Justice Collaborative is hosting an emergency webinar on COVID-19 and Criminal Legal and Immigrant Detention Systems for Friday, March 13, at 1:30 pm Mountain Time. Participants will include U.S. Representative Ayanna Pressley and Federal Defender David Patton, among other leaders in criminal justice community. Information and registration available here.
  • They have also set up a COVID-19 Response & Resources Page, which is available here. The page currently  includes an explanation of why prisons and jails are particularly vulnerable to outbreaks (link here), as well as guidance on COVID-19 release advocacy (link here). The page will be updated with new developments.

 

News You Can Use: SCOTUS clarifies ACCA’s “serious drug offense” definition

In Shular v. United States, the Supreme Court held that “serious drug offense” in 18 U.S.C. § 924(e)(2)(A)(ii) requires only that the state offense involve the conduct specified in the statute; it does not require that the state offense match generic offenses. A prior state law conviction qualifies so long as, under the categorical approach, it necessarily “involves manufacturing, distributing, or possessing with intent to manufacture or distribute” a federally controlled substance. Therefore, the defendant’s prior conviction was a “serious drug offense” notwithstanding his assertion it was broader than the generic definition because it did not require knowledge that the substance possessed was illicit. Shular v. United States, No. 18-6662, 2020 WL 908904 (U.S. Feb. 26, 2020).

Background on ACCA and the categorical approach

Felon in possession of a firearm usually carries a statutory maximum sentence of 10 years in prison. 18 U.S.C. § 924(a)(2). However, the Armed Career Criminal Act (ACCA) provides a 15-year mandatory minimum sentence where the defendant has three previous convictions for a “violent felony” or “serious drug offense.” 18 U.S.C. § 924(e). To determine whether a defendant’s prior conviction qualifies as an ACCA predicate, courts must apply the “categorical approach.” That is, they look only at the elements of the prior offense (not the defendant’s actual conduct) and determine whether those elements categorically qualify as a violent felony or serious drug offense. See generally Mathis v. United States, 136 S. Ct. 2243 (2016).

Most of the Supreme Court’s jurisprudence on predicate offenses and the categorical approach involves ACCA’s definition of “violent felony,” which can be satisfied in one of two ways: (1) under the “force” or “elements” clause, it means any offense that “has as an element the use, attempted use, or threatened use of physical force,” or (2) under the “enumerated offenses” clause, it means any offense that “is burglary, arson, or extortion.” 18 U.S.C. § 924(e)(2)(B). A “serious drug offense” includes most federal drug offenses and any state offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute” a federally controlled substance. Id. § 924(e)(2)(A) (it also must be punishably by at least 10 years in prison).

The Supreme Court has held that the enumerated offenses clause refers to the contemporary, generic version of that offense; that is, the definition used by most state codes. Thus, for example, after analyzing state codes and criminal treatises, the Supreme Court determined that the generic definition of burglary is “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990).

Shular

In Shular, the defendant argued that the definition of “serious drug offense” referred to the names of drug-related crimes in the same way that the definition of violent felony refers to burglary, arson, and extortion. For example, “possession with intent to distribute,” while descriptive, is also just the shorthand name of that offense. Mr. Shular also argued, most states’ drug offenses require a mens rea element that the defendant must know that the substances involved are illicit; therefore, that mens rea must be part of the generic definition implicitly referenced in the ACCA’s definition of “serious drug offense.” Mr. Shular’s offense of conviction, however, did not have that mens rea. It was therefore broader than the generic definition and did not qualify as a “serious drug offense.”

The government argued that the definition of “serious drug offense” was not referring to the names of offenses; rather it was describing what conduct must be proscribed by the state statutes to qualify as a predicate. In other words, it was more like the violent felony definition’s “elements” clause than the “enumerated offenses” clause. Under this interpretation, no inquiry into the mens rea of the generic definition of any drug offense is required—Mr. Shular’s prior conviction qualified because it necessarily involved: (1) manufacturing, distributing, or possessing with intent to manufacture or distribute; and (2) a federally controlled substance.

In a unanimous decision, the Supreme Court agreed with the government. It found compelling two features of the definition, particularly when compared against the definition of “violent felony.” First, the Court thought that the definition of “serious drug offense” was more descriptive and would be “unlikely names for generic offenses.” Burglary, arson, and extortion, on the other hand, unambiguously name offenses and therefore refer to the generic definitions of those offenses. Second, the “serious drug offense” definition spoke of offenses that involve manufacturing or distribution, which again suggested that they were descriptive terms identifying conduct, not generic offenses. Had Congress intended to refer to generic offenses, it would have used the term “is,” not “involving,” as it did in the violent felony definition. Because the statute uses the term “involving” followed by descriptive conduct, it is not referring to the generic definition of, for example, a “manufacturing” offense.

Basic Takeaways

  • The categorical approach applies to the ACCA’s definition of “serious drug offense.”
  • “Serious drug offense” does not enumerate offenses that must be given their generic definitions.
  • A prior conviction is a “serious drug offense” so long as it necessarily involves manufacturing, distributing, or possessing with intent to manufacture a federally controlled substance—regardless of any potential overbreadth with another element of the generic definition, such as mens rea.
  • It is more like the “force” clause in violent felony than it is the enumerated offenses clause.

Other Implications; Potential Future Arguments

  • A “serious drug offense” still must categorically involve a federally controlled substance, so arguments that state schedules are overbroad are still valid. Cf. Mellouli v. Lynch, 135 S. Ct. 1980, 1989-91 (2015)
  • Arguments that a statute is overbroad because it applies to “offers to sell” should likewise still be valid because they do not categorically involve distributing or possessing with intent to distribute. See United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017); United States v. McKibbon, 878 F.3d 967 (10th Cir. 2017).
  • Inchoate crimes might be ripe to challenge again. The Tenth Circuit’s prior justification for including inchoate crimes is that it “read[s] the ‘involving manufacturing’ language broadly to include attempts to manufacture or conspiracy to manufacture.” United States v. Trent, 767 F.3d 1046, 1057 (10th Cir. 2014). However, in Shular, the parties agreed “that ‘involve’ means ‘necessarily require.’” Shular, 2020 WL 908904, at *5. This narrower definition potentially undermines the Tenth Circuit’s justification for expanding the definition of “serious drug offense” to inchoate crimes.
  • More arguments may come to light as the impact of Shular becomes more clear in the coming months, so be on the lookout for updates.