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.
Data specific to the Tenth Circuit is available here, see USSC Data for Fiscal Year 2019.
And, a short Overview of Federal Criminal Cases for Fiscal Year 2019 is also worth your time.
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.
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.
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.
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.
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
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.
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.
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.