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/
Judges in the District of Colorado, with the consent of the defendant after consultation with counsel, are continuing to use video teleconferencing during the pandemic. For your reference, here are go-to instructions for participating in these VTC hearings.
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.
The Senate Judiciary Committee is holding a hearing today, June 2, to examine best practices for incarceration and detention in the time of COVID-19.
Particularly noteworthy is the Joint Testimony of two BOP officials: Michael D. Carvajal, Director of BOP, and Dr. Jeffery Allen, the BOP’s Medical Director. Much of the testimony addresses the criticism of BOP’s pandemic response, which Carvajal and Allen claim has “been based on misinformation” about how BOP is actually handling things.
Take a close look at the last section, addressing how the BOP is handling home confinement:
“As the pandemic grew more widespread, the Bureau began aggressively screening the inmate population for inmates who were appropriate for transfer to RRC or Home Confinement for service of the remainder of their sentences. On March 26, 2020 and April 3, 2020, Attorney General Barr issued memoranda to the Bureau directing us to increase the use of Home Confinement, particularly at institutions that were markedly affected by COVID-19, for vulnerable inmates. The CARES Act, signed by President Trump on March 27, 2020, further expanded our ability to place inmates on Home Confinement by lifting the statutory limitations contained in Title 18 U.S.C. § 3624(c)(2) during the course of the pandemic. I am pleased to note that we currently have 6,120 inmates in RRC and 6,398 on Home Confinement. This is an 124% increase in HC from March 26, 2020. There are an additional 985 who are scheduled to transfer to Home Confinement in the coming weeks. While we continue to make robust strides in these placements to reduce risk of spread to the inmate population and staff, public health and safety must remain our highest priority. The Attorney General has issued guidance as to which inmates should be considered for home confinement. Staff are conducting individualized assessments to ensure inmates are appropriate for community placement both from a public safety perspective and given their own specific needs and circumstances. Additionally, we must ensure inmates who release to Home Confinement have a viable residence in which to reside.
It should go without saying that while we are dedicated to the protection of our inmates’ health and safety, we also have to consider—as the Attorney General’s guidance emphasized—that inmates who presented a risk of public safety because of their criminal acts or other factors cannot be released. Neither can we release inmates who would be worse off outside Bureau facilities than inside, such as those whose medical conditions could not be adequately cared for by health systems that are themselves overwhelmed by the response to COVID infections in the general community. Nor can we release inmates who do not have safe housing for themselves or housing that is not subject to appropriate safeguards for home confinement, which is still, after all, a form of incarceration for persons convicted of crimes whereby such persons are still serving a federal sentence.”
The United States Sentencing Commission has just released a number of reports on federal sentencing practices in fiscal year 2019.
Particularly useful are the data reports compiling federal sentencing statistics from each judicial district, the districts within each judicial circuit, and the districts within each state. Each report compares the statistics from the respective district, circuit, or state to the nation as a whole. You can find all of the reports here.
The District of Colorado continues to respond to the ongoing impact of COVID-19 on the functioning of federal courts.
On April 6, 2020, Chief Judge Philip A. Brimmer entered a General Order, pursuant to the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), authorizing judges in the district, with the consent of the defendant after consultation with counsel, to use video teleconferencing, or telephone conferencing if video teleconferencing is not reasonably available, for a number of criminal proceedings. The specific hearings covered are listed in the General Order, and include felony pleas under Rule 11 and felony sentencings under Rule 32 “if judges in individual cases find, for specific reasons, that felony pleas or sentencings in those cases cannot be further delayed without serious harm to the interests of justice[.]”
This General Order will remain in place for 90 days “unless terminated earlier.”
A previously-entered General Order describing COVID-19-related changes to court operations (in place through May 1, 2020) can be found here.
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.
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.
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.”
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.
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.