Former Public Defender Ketanji Brown Jackson Confirmed as
Supreme Court Justice; Signs Point to Early Vote on EQUAL, As Pressure Also Grows for Marijuana
Legalization; Optimism Increases for Other Reform Bills; Mental Health Issues as a Reason for Compassionate
Release; Appellate and COVID Updates
by Derek Gilna
The
aggressive and often misleading confirmation
hearing questioning of now Justice Ketanji Brown Jackson by certain Republican
senators showed that some of our elected
representatives (and the public) need to learn more about the seamy reality of
the current "justice " system.
Justice Ketanji-Brown', with her
education, dedicated public service, as
well as her obvious dignity, humility, and experience as a public defender, is
just the person to educate them.
In
Congress, pressure is building for votes on one or more of the pending justice reform
bills. The COVID-19 fiasco in federal prison exposed to the public (and more
importantly, Congress) the breathtakingly-inept and mismanaged system that
wastes hundred of millions of dollars, causes
unnecessary misery, and sometimes even death.
Congress (and the courts) realize that DOJ is in denial that First Step is the
law of the land, and that provisions like the programming and employment sentencing
credits MUST be applied in a timely fashion. The pass of EQUAL and other
pending legislation will be a good start to show them the error of their ways. We
can assist you in taking advantage of these sentence-shortening opportunities.
There is also
new optimism that perhaps at least some provisions of the MORE Act can be
passed in this session. More states are either legalizing recreational usage, and
the public clearly is in favor of full legalization. If the bipartisan justice coalition
that came together to pass First Step again comes together, led by Senators
Durbin and Grassley, it bodes well for passage of the other pending bills..
Mental
health issues, even in the absence of other serious medical issues, have been
found to be grounds for compassionate release. See: United States v. Rodriguez,
2020 WL 4592833, at *1 (S.D. Cal.
Aug. 5, 2020), for a prisoner at FCI Victorville Medium II, serving an 86-month
sentence, serving since 2017 (32 months), who was non-violent, with “32 months
in custody… is far more time than she has ever served before and will likely
act as a deterrent.” The decision cited prison conditions of prison, the mental
health consequences of continued incarceration in the midst of a global
pandemic that place further stress on
the body and immune system, and stated that, “Major depressive disorder, or clinical
depression, causes stress, which impairs the immune system against viral
infections, such as COVID-19.” Courts have found mental health conditions to
contribute to extraordinary and compelling reasons warranting compassionate
release. See, e.g., United States
v. Lavy, 2020 WL 3218110, at *5 (D. Kan. June 15, 2020) (finding associations between major
depressive disorder and “atypical immune responses”); United
States v. Johnson, ––– F. Supp. 3d ––––,
––––, 2020 WL 3041923, at *10 (D.D.C. May
16, 2020) (finding extraordinary and compelling the movant’s PTSD
combined with his physical illness).
In United
States v. Gudino, 2020 WL 7319432, at *1
(N.D. Cal. Dec. 11, 2020)defendant was sentenced to 140 months, served 78 months, and was 44 years old, obese,
and suffered from shortness of breath, tuberculosis, and anxiety. The
government agreed that “[p]ersons suffering from mental health and anxiety have
been identified by the World Health Organization as standing a higher risk of
severe infection and even death from COVID-19.” Id.
In United
States v. Lavy, 2020 WL 3218110, at *1 (D. Kan.
June 15, 2020). The prisoner at Forrest City Low FCI, had Bipolar, depression,
hypertension, and was 58 years old. “But the CDC has not yet determined whether
hypertension alone renders an individual particularly vulnerable to severe
illness stemming from COVID-19. The Court therefore considers Defendant’s
age and hypertension in connection with his two mental health diagnoses,
bipolar disorder and major depressive disorder.” The Court found that there is
scientific support linking bipolar disorder and immune system
dysfunction. And there is at least some indication that a substantial subset of
individuals with major depressive disorder and bipolar
disorder exhibit atypical immune responses. Michael Maes & Andre F.
Carvalho, The Compensatory Immune-Regulatory Reflex System (CIRS) in
Depression and Bipolar Disorder, 55 MOLECULAR NEUROBIOLOGY 8885
(2018)Joshua D. Rosenblat & Roger S. McIntyre, Bipolar
Disorder and Immune Dysfunction: Epidemiological Findings, Proposed
Pathophysiology and Clinical Implications, NAT’L
INST. OF HEALTH (Oct. 30, 2017), https://doi.org/10.3390/brainsci7110144.
The issue
of compassionate release becomes even more critical for those thousands of
prisoners in all institutions whose routine medical care and outside testing is
STILL being delayed by the excuse of COVID. Word from Pekin
that a woman who complained repeatedly of heart issues succumbed this past
week, and unfortunately, I am afraid that she won't be the last.
