Releases Continue as COVID-19 Continues to Spread in
Prisons; Prisoner Counts Fall
by Derek Gilna
As COVID-19
continues its spread in federal prisons, federal prisoner counts have continued
to fall as more judges grant home confinement or outright release, and fewer people
come into the system. Judges can read, and I expect the releases to continue
for months.
This
crisis has already led to emergency policy reforms, but DOJ is still hampered
by bad data, and worse management. Less than 20% of federal prisoners, about
20,000, have been tested. (Illinois US
All major polls show that 95% of
Americans are in favor of at least some
criminal justice system and police reform, after the recent protests and the
FBI/DOJ Russia and Michael Flynn scandals that exposed
widespread abuse of police and prosecutorial power. Regardless of the November
election results, a year from now the federal justice system will look much
different than the current swampy mess.
Although
the federal courts are operating at reduced capacity and few in-court
proceedings except for emergencies, the circuits have been busy. In the 9th
circuit, a Rehaif case did not result in sentence relief, but broadened a
court's inquiry into the issue even when it was not properly raised in the
district court stating, "the panel saw no basis...for limiting its review
to the record adduced at trial, as the record on appeal contains additional
evidence..." US 6-25-20 .
In the 8th, in US v. Birdine,
19-1782, 6-22-20 , the court
granted FSA relief in an 841 and 846 cocaine case, and reversed and remanded
for resentencing.
Another
important case in the 7th, which considers itself an incubator for legal though
and precedent-setting decisions, the court incorporated language that furthered
the reach of FSA: "we hold that (FSA) is its own procedural vehicle...the
only limits on the district court's authority (under 404 of FSA) come from the
interpretation of (FSA) itself." Nonetheless, the appeals court end up
holding that the district court did not
abuse its discretion in denying cocaine-case sentence relief under the facts of
this case. U.S. 6-23-20 .
Those of
you with recently completed direct appeals or cases that might be impacted by
FSA should consider your options, which include a 2255 alleging inadequate
representation of counsel, or a petition to your sentencing court for possible
sentence relief. Have a good week, and
let not your heart be troubled.
Federal Legal Center, Inc., Derek A. Gilna, JD, Dir.
