Resources: Some new COVID-19-related materials to help you advance the cause

Congressional Letter to USMS. Every district is grappling in its own ways with the conditions of our clients in pretrial custody. Hopefully some answers will come today. Check out the letter from Senators Warren and Booker and Congressman Deutch to the United States Marshals Service calling out its lack of testing, lack of transparency and general lack of containment efforts. The letter states unequivocally that, “USMS is failing to prevent the further spread of COVID-19 in prisons and communities all across the U.S., and in fact is actively making matters worse.” The letter sets out detailed questions and requests a response by today’s date.

It also contains some clear facts (and citations) describing how dire the situation really is for our clients in custody: “The spread of COVID-19 in U.S. prisons and jails is out of control, with over 125,692 confirmed cases and at least 1,066 prisoner deaths to date. All 15 of the largest “clusters” of COVID-19 in the U.S. are correctional facilities, and in some facilities the overwhelming majority of the detained individuals have been infected with coronavirus.”

Report by The National Commission on COVID-19 and Criminal Justice. This newly released report contains a set of urgent, far-reaching recommendations that call on leaders in law enforcement, the courts, and corrections to expand their efforts to reduce harm caused by the coronavirus. In its first report, Recommendations for Response and Future Readiness, the independent, nonpartisan Commission said a lack of clear guidance and reliable data had led to a patchwork of responses among states and localities, creating wide variance in infection and mortality rates for their incarcerated populations, among other consequences. Led by former U.S. Attorneys General Loretta Lynch and Alberto Gonzales, the Commission urged justice system leaders to follow the facts, data, and science in their pandemic responses. Key recommendations include mandating mask wearing across all sectors of the system, conducting mass testing to detect outbreaks quickly, and reducing populations in correctional facilities to limit virus spread while remaining mindful of public safety concerns. https://counciloncj.foleon.com/covid19/report/welcome/

The executive summary is available here: https://counciloncj.foleon.com/covid19/report/executive-summary/

Interactive Dashboards about COVID-19 within BOP. The OIG released an Interactive Dashboards Relating to COVID-19 Within the Federal Bureau of Prisons. It’s more user friendly than the BOP website. https://oig.justice.gov/news/multimedia/video/message-inspector-general-interactive-dashboards-relating-covid-19-within

The dashboards are available here: https://www.arcgis.com/apps/MapSeries/index.html?appid=a3e98be1aab94eadaaeaa96ed176f418

News You Can Use: Tenth Circuit Will Hear Argument Today (at 2 p.m.) In A Noteworthy Compassionate Release Appeal

The Tenth Circuit will hear oral argument today September 22, 2020 at 2 p.m., in United States v. Maumau, No. 20-4056, a government appeal out of the District of Utah with potential implications for compassionate release litigation throughout the circuit. The issue is whether the district court has authority to determine for itself what constitutes an “extraordinary and compelling reason” that would justify compassionate release under 18 U.S.C. § 3582(c)(1)(A), notwithstanding the BOP and the Sentencing Commission have promulgated definitions.  The case concerns both the language of Section 3582(c) and the validity of USSG 1B1.13, as well as its commentary. Former federal district court judge John Gleeson represent Mr. Maumau.  You can learn more about Judge Gleeson here: https://www.debevoise.com/johngleeson                   You can listen to the argument in real time on the circuit’s YouTube channel by clicking here:https://www.youtube.com/watch?v=IaR1ZYqvC4A                                  Audio recordings of the arguments can be found on the circuit’s website – with a time lag of about two days – by clicking here: https://www.ca10.uscourts.gov/oralargument/search/recent

The appellate briefs and district court order are available here:

Resource: The COVID-19 Crisis in Federal Detention | Fact Sheet

The Sentencing Resource Counsel has prepared a detailed fact sheet about the ongoing COVID-19 crisis within the Federal Bureau of Prisons. The up-to-date information and resources linked will be particularly helpful in our compassionate release efforts.

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 Tip: Update on Granted First Step Act Sentence Reductions and Some Thoughts on the Compassionate Release Eligibility Framework

 

By Ashley Cordero

Ashley is a fall intern at the Office of the Federal Public Defender for the Districts of Colorado and Wyoming. She is a second-year law student at the University of Denver, Sturm College of Law. Prior to law school, she managed an employment program for previously incarcerated individuals in her hometown Los Angeles, California. She hopes to remain in Colorado to pursue a career in public defense.

FIRST STEP ACT UPDATE

Summary of the USSC Resentencing Provisions Retroactivity Data Report

In October 2019, the U.S. Sentencing Commission released the Retroactivity Data Report collecting data on sentence reductions granted pursuant to Section 404 of the First Step Act. Section 404 expanded the pool of individuals eligible for a sentence reduction for previous crack-cocaine convictions by retroactively applying sections 2 and 3 of the Fair Sentencing Act of 2010. Now, under the First Step Act, the courts were to consider granting a sentence reduction as if the Fair Sentencing Act was in effect when the defendant was originally sentenced.

Sections 2 and 3 increased the quantity of crack cocaine that triggered mandatory minimum penalties and eliminated mandatory minimum sentences for simple possession of crack cocaine. This retroactive application of the Fair Sentencing Act guidelines had the potential to ameliorate some of the racial inequity stemming from the disparate crack-cocaine conviction rates between Black (83.0%) and White (5.8%) defendants. The report includes motions granted through September 30, 2019.

Key Findings from the USSC Retroactivity Report

  • Nationwide, district courts have granted 1,987 motions for sentence reduction under section 404. The Tenth Circuit has granted 1.7% (35) of these motions. The Districts of Colorado and Wyoming have granted four sentence reductions within the Tenth Circuit.
  • Of the defendants granted a sentence reduction, 91.2% are Black, 4.2% Hispanic, 3.8% White.
  • 98% of defendants granted a sentence reduction are male.
  • Nationally, on average defendants saw a 26.2% decrease from their current sentence. In the Tenth Circuit, defendants saw an average 30% decrease.

COMPASSIONATE RELEASE ARGUMENTS IN 924(c) CASES

Background

Section 403 of the First Step Act eliminated the archaic stacking provision that previously mandated minimums for individuals who were convicted of possessing a firearm in the commission of a crime of violence or drug trafficking offense –even if the charges arose from a singular criminal incident. The First Step Act revised 18 U.S.C. § 924(c)(1)(C) by providing that the higher penalty for a “second or subsequent count of conviction” under section 924(c) is triggered only if the defendant has a prior section 924(c) conviction that has become final.  See generally USSC First Step Act Summary. However, Section 403 was not made retroactive. This prompts the question, where do defendants with previous mandatory minimums under 924(c) fall within the First Step Act compassionate release eligibility framework?

Federal courts may reduce a defendant’s sentence if they find an “extraordinary and compelling reason” to warrant a reduction and that reduction is consistent with policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A)(i) (2018). This is known as “compassionate release.”

The Sentencing Commission Policy statement dated November 1, 2018, lists four eligibility criteria including “other reasons” where there exists an “extraordinary and compelling reason other than or in combination with reasons” described in the report. While the report has not been updated since the passage of the First Step Act, district courts continue to refer to the policy statement as helpful guidance.  United States v Bucci, 2019 WL 5075964, at *1 (D. Mass. Sept. 16, 2019); See also United States v Shields, 2019 WL 2645028, at *2 (N.D. Cal. June 27, 2019).

While a sentence reduction must be consistent with the Commission’s policy statements, federal courts are not bound to these prescriptive categories. Courts have not found the policy report circumstances list to be exhaustive. See United States v Overcash, 2019 WL 1472104 (April 3, 2019) (stating the court may make an independent determination). Even if eligibility is established, reduction is not required. Federal courts have the discretion to reduce the defendant’s sentence, considering the 3553(a) sentencing factors to make their determination. See United States v Cole, 2019 WL 3406872, *5 (N.D. Ind. July 29, 2019).

If Making Compassionate Release Argument, Consider Reading Shon Hopwood’s article, Second Looks and Second Chances

  • Shon Hopwood is an Associate Professor of Law at Georgetown Law. In June 2019, as part of a series on federal sentencing, Cardozo Law Review published his essay, “Second Looks and Second Chances,” which outlines the history of second looks provisions and suggests litigation tactics for certain defendants, such as those with previous 924(c) convictions.
  • Before the First Step Act, Congress did not define what constituted an “extraordinary and compelling reason” for sentence reduction. Congress intended this provision to act as a safety valve.
  • There is no indication that Congress intended to limit the compassionate release safety valve to only medical or elderly release. If a defendant can establish extraordinary and compelling circumstances, compassionate release could be used to justify a reduction of an unusually long sentence.
  • By eliminating the stacking provision, Congress has acknowledged that the original sentencing scheme for 924(c) was overly punitive and unfair.
  • Unlike section 404 which established categorical eligibility, section 403 was not retroactive. Those sentenced under the stacking provision and now seeking relief under compassionate release must establish “extraordinary and compelling reasons” individually.
  • However, simply because Congress did not create a retroactive categorical eligibility for sentence reduction does not suggest that Congress foreclosed other options of relief.
  • Consider using the “other reasons” provision to demonstrate that the defendant has a compelling and extraordinary reason for compassionate release.