Levi Compassionate Release Highlights Possible "Trap" for CARES Releasees; First Step Resentencing: What Are Your Chances?; Delta Variant Risk Increases; Supreme Court Ends Term with a Whimper, but New Petitions Target Key Sentencing Abuses
by Derek Gilna
A
little-reported court decision granting Compassionate Release to 76-year old CARES-releasee
Gwen Levi is the most recent high-profile case that highlights the continuing
risk for CARES prisoners that they will be forced to return to prison. Levi was
one of 24,000 federal prisoners released under CARES, who were put at risk of
re-arrest under a Department of Justice (DOJ) Department memo issued in the
final days of the last administration that said inmates whose sentences extend
beyond the pandemic must be brought back to prison. Levi was arrested for not
answering US Probation's phone calls while she was in a computer class. The
judge granted her motion for Compassionate Release and gave her time-served,
and left her five-year supervised release intact. US v. Levy, 8:04-cr-00235,
(D. of Md.,
One of the possible byproducts of filing a petition for Compassionate Release-even if it is denied by the warden-is that it highlights to DOJ the extent of your chronic physical issues and definitely increases your chances for a CARES release. The downside for CARES releasees by Ms Levi is that Probation is always "in your business," making it imperative that you file a CR to reduce or eliminate that risk of re-arrest.
The First Step Act (FSA) has clearly increased
the chances for a sentence reduction under Section 404, giving your district
court judge the power to resentence, but does not compel him/her to do so. There are a whole list of factors for the
judge to consider, and you must overcome
the automatic DOJ response that you are still a "threat to the
community." However, unlike
second-successive 2255's, the bar for approval has been lowered, but it will
require a well-drafted motion.
Josh
Manson, a researcher at the UCLA Law COVID Behind Bars Data Project, says that
there have been few efforts to curb the Delta variant and COVID-19 overall,
making prisons deadly places for transmission. “When the pandemic first hit in
March 2020, prisons were not taking the situation seriously,” Manson says. “We
know that it’s even more transmissible than it was the first time a year and a
half ago. We’ve seen thousands of people die in jails and
prisons.” According to Manson, the current death count is an
underestimate. “There’s evidence emerging that the counts that have been
recorded are actually undercounted,” Manson explains. “So we don’t even know
the true totals of how many people died.” www.verywellhealth.com,
The reports of increased clemencies refuse to go away, as administration officials, bogged down in Congress by , weigh the positive benefits of bold action to shore up the public perception that Biden has accomplished little of what he promised in the first six months of office. Now is the time to seriously consider this option. Those with Compassionate Release petitions pending are still eligible for pardons or commutations.
Although recent Supreme Court decision did little to assist current prisoners in the last term, the new petitions in Osby and Bryant look promising. According to the federal Sentencing Guidelines, a judge may adjust the recommended range of an offense based on a defendant’s “relevant conduct.” and can include acquitted conduct.
In Osby
v.
Another new case, Bryant v.
In 2019, Thomas Bryant filed a motion for compassionate release in district court. The government opposed his motion and argued that the reasons given in Bryant’s motion did not satisfy the criteria in the 2007 policy statement. The government argued that the 2007 policy statement was an “applicable” policy statement under the compassionate-release provision and that the district court was thus bound by it. The district court denied Bryant’s motion and the 11th Circuit affirmed. There is a circuit split over whether district courts are bound by the 2007 policy statement when deciding defendant-filed motions. He seeks review to clarify what constitutes an “applicable” policy statement for defendant-filed motions under the First Step Act.
Congress and the President are also under heavy pressure to amend the PATTERN Risk Assessment tool created under FSA, to reduce the long list of disqualifying offenses for the ETCs, an inordinately complicated system for linking risk and needs assessments to the calculation and application of ETCs, credits that do not directly shorten prison terms (because of the 85 percent rule) but instead extend time spent in “prerelease custody” except to allow early transfer to supervised release (functionally shortening the prison term), and numerous reporting requirements.
As usual, DOJ has used its discretion to reduce the sentence-reduction impact of FSA. Final rules have yet to be written, giving the new administration a lot of power to make changes to make programming more attractive. The new fascination with racial "equity" makes it highly likely that there will be substantial changes to DOJ's original PATTERN criteria.
Finally, although the summer vacation season has temporarily reduced the number of appellate decisions, there is good news on another generally-forgotten front, those under "Old Law" jurisdiction, who have not been able to take full advantage of FSA. A bipartisan press release called for the following: "We are writing to highlight the situation of 236 "old law" federal prisoners, and to urge you to support their emergency release...just 236 people are still serving parole-eligible sentences. These 236 people were sentenced for federal crimes committed before 1987, when parole was abolished... Every one of these people has been eligible for release for many years, so there is no statutory bar to their release now." Let's make it happen.
DOJ, under pressure from Congress to continue CARES releases, is now also confronting the issue that in some institutions, especially camps which hold only minimal or law risk individuals, the ration of prisoners to staff is approaching one-to-one, putting their continued existence in question. Congress should increase its oversight of these prisons to make sure that CARES-release decisions are not influenced by prison staff's fear of unemployment.
Be not afraid and let not your heart be troubled.
