THE BASICS OF COMMUNITY CORRECTIONS LITIGATION IN THE …€¦ · 2020-03-25 · Susan Russell Francesca Freccero C. Renée Manes Nell Brown Kristina Hellman Fidel Cassino-DuCloux

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FEDERAL PUBLIC DEFENDER

LISA C. HAY Federal Public Defender

STEPHEN R. SADY

Chief Deputy Defender

Gerald M. Needham

Thomas J. Hester

Ruben L. Iñiguez

Anthony D. Bornstein

Susan Russell

Francesca Freccero

C. Renée Manes

Nell Brown

Kristina Hellman

Fidel Cassino-DuCloux

Alison M. Clark

Brian Butler +

Thomas E. Price

Michelle Sweet

Mark Ahlemeyer

Susan Wilk

DISTRICT OF OREGON

101 SW Main Street, Suite 1700

Portland, OR 97204

503-326-2123 / Fax: 503-326-5524

Branch Offices:

859 Willamette Street 15 Newtown Street

Suite 200 Medford, OR 97501

Eugene, OR 97401 541-776-3630

541-465-6937 Fax: 541-776-3624

Fax: 541-465-6975

Oliver W. Loewy

Elizabeth G. Daily

Conor Huseby

Robert Hamilton

Bryan Francesconi

Ryan Costello

Irina Hughes▲

Kurt D. Hermansen▲

Devin Huseby +

Jessica Snyder

Cassidy R. Rice

In Memoriam

Nancy Bergeson

1951 – 2009

▲ Eugene Office

+ Medford Office

Research /Writing Attorney

THE BASICS OF COMMUNITY CORRECTIONS LITIGATION

IN THE TIME OF CORONA

By Stephen R. Sady

March 25, 2020

For both healthy clients and those especially vulnerable to coronavirus, the

difference between prison and community corrections during the national

emergency can be significant. Our clients can be transferred to less risky

environments of home confinement and reentry centers where social distancing can

be better practiced. At the same time, prison populations can be reduced to lessen

overcrowding and improve staff-to-inmate ratios. The constellation of statutes and

rules around the transfer to community correction for up to one year prior to the

projected release date under 18 U.S.C. § 3624(c) provide bases for legal action on

behalf of clients. We have ideas for specific actions to help clients and model

pleadings attached for potential litigation, but first some context and history.

Scope Of The Problem: The potential beneficiaries of advocacy for more

time in community corrections are clients who are eligible for community

corrections but are scheduled to receive less than the maximum available statutory

time. Under § 3624(c), 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.

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In 2019, the Bureau of Prisons reported 45,075 releases to the community,

excluding transfers to state detainers and immigration. The BOP has a long history

of underutilizing community corrections; the average time has been around four

months, or only a third of the available year. Between 17 and 19 months before the

projected release date, the unit manager, counselor, and case manager are supposed

to have a program review meeting to determine whether and how long community

corrections is appropriate. So the community corrections times for most of our

current clients has already been set with no consideration of the risks and needs

based on the coronavirus national emergency.

Recommendations For Transfer To Community Corrections: Short of

litigation, we can hope the BOP re-calibrates transfers to community corrections to

accelerate the times for transfer to address the national emergency. Legislative

advocates for federal defenders have written the attached letter to the Attorney

General and the BOP Director making that recommendation. For individual clients,

we can also take persuasive action. Under 18 U.S.C. § 3621(b)(4), sentencing judges

can make designation recommendations to the BOP at any time. See United States

v. Ceballos, 671 F.3d 852, 856 n.2 (9th Cir. 2011). If a client calls in asking for help,

or if we are aware of a client near the end of the sentence, we can write the sentencing

judge or submit a motion requesting a recommendation of maximum time in

community corrections based on the national emergency and any pertinent

individualized factors. The recommendation for maximum community corrections

and maximum home confinement is especially important because the Department of

Justice has sponsored legislation that permits the Director to lengthen the time of

permitted home confinement.

The Myth Of BOP Invulnerability: Advocates may be daunted by the

BOP’s claims of unlimited discretion and judicial super-deference to the agency.

Despite the BOP’s frequent claims of unreviewable discretion, there is a long history

of judges granting relief to prisoners based on claims in actions under 28 U.S.C.

§ 2241 that BOP administrative action violates rules, statutes, and constitutional

rights, as set out in the sample memorandum. Two lines of litigation illustrate the

point in the community corrections context. In most Circuits, the courts held that

BOP rules that foreclosed or limited community corrections violated the underlying

statutes. Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008) (citing cases). We also

litigated a class action asserting that informal policy limitations of community

corrections to not more than six months violated the Second Chance Act. Sacora v.

Thomas, 628 F.3d 1059 (9th Cir. 2010). Although the court approved the informal

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rule, the Sacora case is relevant because the district court agreed that the regulation

requiring promulgation of a rule guiding community corrections decisions was

invalid (the regulation just repeated the statute’s language). Although the Second

Chance Act required that a regulation be promulgated within 90 days, there is still

no meaningful and properly promulgated regulation in place a decade later.

Exhaustion Of Administrative Remedies: Section 2241 includes no

exhaustion requirement, so what remains is a judicially created non-jurisdictional

requirement that can be excused based on futility and the danger of irreparable harm

from delay. That said, we recommend filing for all available administrative

remedies. See Program Statement 1330.18, Administrative Remedy Program (Jan.

6, 2014). The reasoning is simple: the BOP might grant relief; if it doesn’t, the

explanation is in writing; and nothing stops us from litigating and exhausting at the

same time where our client is facing imminent irreparable harm. Not insignificantly,

once the claim enters the administrative system, the attorney for the BOP is in a

position to settle the case if so inclined based on the individual’s situation. So any

client who is seeking accelerated community corrections should start make

administrative requests right away based on the coronavirus national emergency and

any applicable individualized factors. And the BOP received notice of the

generalized request for reconsideration of community corrections time in the federal

defender legislative committee letter that is attached.

Filing The Section 2241 Petition And Supporting Memorandum: Not all

clients will benefit from community corrections litigation. In some districts, reentry

centers may be as risky as prison; for some clients, the lack of an effective release

plan may militate against transfer to the streets without medical care. For clients

determined to benefit from litigation, a petition can be filed with a supporting

memorandum requesting expedited consideration and relief. Attached to this article

are a model petition and supporting memorandum based on the BOP’s failure to

follow a number of applicable statutes and rules that can be customized and adapted

as appropriate.

Your client will be able to provide the factual details: has there been an

individualized program review based on the new circumstances of the national

emergency? Did the prior limited time in community corrections inadequately

account for vulnerabilities to coronavirus? Was adequate consideration given to low

risk factors or completion of the residential component of the drug and alcohol

program created under 18 U.S.C. § 3621(e)? Defenders need to communicate with

clients to determine any potential argument and to be creative in matching the facts

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to legal norms that are being violated. Remember that an unwise discretionary

decision does not constitute effective grounds for relief under § 2241; there must be

an effective hook to violations of the laws and Constitution of the United States. An

addendum following the model brief sets out potential procedural due process and

Eighth Amendment claims that can be included.

Where to file is a bit complex, not because the law is bad but because of poorly

written opinions. The general rule is that § 2241 petitions are filed in the district of

custody. So for offices receiving calls for help from a local federal prison, file the

§ 2241 petition locally. For our clients in far-flung prisons, this can be a

representation problem. As in compassionate release cases, working with the office

of custody provides the easiest solution. But when representation is only available

in the district of conviction, we don’t need to be shy about filing a motion for our

requested relief, explaining that the place of filing is a matter of venue, not of subject

matter jurisdiction, as set out in the model memorandum. We would argue that the

balance of interests strongly militate in favor of the district of the sentencing judge

to decide whether the BOP is administering the defendant’s sentence in violation of

federal law.

Requested Relief: The model pleading is requesting a temporary restraining

order, conditional release pending litigation, and issuance of the writ as “law and

justice require” under 28 U.S.C. § 2243. We hope to give sentencing judges as many

alternative routes as possible to protecting our clients from the ongoing risks in

prison and reducing prison populations for the benefit of all. We can hope that

required reassessment of community corrections in light of the national emergency

will result in accelerated releases and, at least, greater sensitivity and urgency to

increasing use of community corrections. Remember that habeas corpus is a flexible

remedy that adjusts according to circumstances. The present emergency warrants

creative solutions implemented without delay.

Conclusion: Smart and creative defenders will be figuring out how to best

serve our clients by maximizing time in community corrections. These thoughts and

model pleadings provide a starting point. Please be generous in sharing any

successes or lessons learned that will help other advocates.

Page 1 PETITION FOR WRIT OF HABEAS CORPUS

[Attorney name], OSB #_________

Assistant Federal Public Defender

Email: [email protected]


Portland, OR 97204

Tel: (503) 326-2123

Fax: (503) 326-5524

Attorney for Petitioner

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF [XX]

[Client name],

Petitioner,

v.

[Respondent name],

Respondent.

Case No. ________

PETITION FOR WRIT OF HABEAS

CORPUS

Preliminary Statement

The Bureau of Prisons’ adverse action during the novel coronavirus emergency violates

governing statutes, the BOP’s own rules implementing those statutes, and the Constitution.

Judicial oversight of the BOP’s custodial decisions must now take into account the national

emergency of the Covid-19 pandemic. The petitioner’s continued incarceration puts

him/her/them at greater risk of contracting the disease, as social distancing and other protective


measures that public health and government officials advocate and order as essential to restraining

the spread of the novel coronavirus are unachievable in the petitioner’s current prison facility. The

petitioner’s release to the less risky environment of home confinement or a reentry center could

not only save the petitioner from increased risk of contracting the novel coronavirus, but also

reduce the prison’s overcrowding and improve staff-to-inmate ratios. These are essential steps

toward stemming the novel coronavirus pandemic. The petitioner is eligible for up to one year of

community corrections in a reentry center, with the lesser of six months or ten percent of the

sentence in home confinement, yet the BOP scheduled [client] to receive less than this amount of

time in community corrections. The BOP’s decision violates applicable statutory law, BOP rules

regarding those statutes, and the Constitution.

Parties

1.1 Petitioner [client name] is currently a federal prisoner in the custody of the Bureau of

Prisons at [location].

1.2 Respondent [name] is the [Respondent’s official position], which is within the District of

[xx and the jurisdiction of this Court], and is named in his/her official capacity.

Jurisdiction

2.1 This Court has jurisdiction over this action pursuant to 28 U.S.C. § 2241 because the

Petitioner’s term in federal custody is being executed in a manner that violates the

Constitution and laws of the United States.

2.2 This Court also has jurisdiction over this action pursuant to the constitutional writ of habeas

corpus and the Court’s ancillary jurisdiction over management of its proceedings,

vindication of its authority, and effectuation of its decrees. Boumediene v. Bush, 553 U.S.

723, 729 (2008); Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 379-80


(1994). [If filing out-of-district, include the following text:] The rules that a habeas

corpus action be brought against the immediate custodian and filed in the district court

where the custodian is located are not a limitation on this Court’s subject-matter

jurisdiction. Rumsfeld v. Padilla, 542 U.S. 426, 451 (2004) (Kennedy, J., concurring). The

place of filing is, rather, a matter of venue and this Court may thus hear this Petition on the

merits. See id. (citing cases adjudicated on the merits). The balance of interests strongly

weighs toward this Court as the sentencing judge deciding whether the BOP is

administering the petitioner’s sentence in violation of federal law and the Constitution.

2.3 The petitioner additionally invokes the jurisdiction of this Court pursuant to 28 U.S.C.

§ 1331 because the action arises out of the Constitution and laws of the United States and

seeks corrective action by officers and employees of the United States in their official

capacity.

2.4 Petitioner additionally invokes the jurisdiction of this Court pursuant to 28 U.S.C.

§ 1343(a)(4) because Petitioner seeks to redress deprivation of rights guaranteed by both

the Constitution and federal statutes.

Statement of Facts

3.1 On [date], Petitioner received a sentence to a term of imprisonment of [xx] months upon

conviction for [crime] in United States v. [Client], [case number]. Petitioner currently is

incarcerated in [location] with a projected release date of [date].

3.2 Client-specific facts and information about any attempts to pursue administrative

remedies.

3.3 On March 11, 2020, the World Health Organization classified the new strain of coronavirus

that causes Covid-19 as a pandemic. Two days later, on March 13, 2020, the White House


declared a national emergency under Section 319 of the Public Health Service Act

(42 U.S.C. § 247(d)). The White House also has issued guidance recommending that

gatherings of ten persons or more be cancelled or postponed.

3.4 Government and public health officials are ordering and advocating for social distancing

as an essential measure to curtail the spread of the Covid-19 disease. Petitioner’s current

incarceration makes him/her/them especially susceptible to the novel coronavirus, as

social distancing is nearly impossible in Petitioner’s current prison facility. Other

circumstances of Petitioner’s current incarceration—including restricted access to soap,

bans on hand sanitizer, inadequate ventilation, and limited medical care—cause the

petitioner to be in particular danger due to the Covid-19 pandemic.

Statement of the Law

4.1 The BOP shall designate the place of imprisonment considering “the history and

characteristics of the prisoner.” 18 U.S.C. § 3621(b).

4.2 The BOP must ensure that a prisoner spend the final portion of the prisoner’s sentence, up

to one year, in a community correctional facility, and “shall, to the extent practicable, place

prisoners with lower risk levels and lower needs on home confinement for the maximum

amount of time permitted under this paragraph,” which is “the shorter of 10 percent of the

term of imprisonment of that prisoner or 6 months.” 18 U.S.C. § 3624(c)(1) and (2).

4.3 Regulations “shall issue” that “shall ensure” that placement in community corrections

“determined on an individual basis,” and be “of sufficient duration to provide the greatest

likelihood of successful reintegration into the community.” 18 U.S.C. § 3624(c)(6)(B)-

(C).


4.4 In 2008, the BOP published an interim rule that stated, in part: “Inmates will be considered

for pre-release community confinement in a manner consistent with 18 U.S.C. section

3621(b), determined on an individual basis, and of sufficient duration to provide the

greatest likelihood of successful reintegration into the community . . . .” 73 Fed. Reg.

62440, 62443 (Oct. 21, 2008). Oregon District Court Judge Malcom F. Marsh held this

rule invalid. Sacora v. Thomas, 628 F.3d 1059, 1065 (9th Cir. 2010) (“[T]he district court

granted the petition with respect to the BOP’s formal regulations, 28 C.F.R. §§ 570.20–

.22, finding that the BOP’s failure to use notice-and-comment provisions in promulgating

those regulations violated the APA, and enjoined the BOP from considering inmates for

placement in RRCs pursuant to those regulations.”). In 2011, the BOP published a

proposed rule with the same language used in the 2008 interim rule. 76 Fed. Reg. 58197,

58199 (Sept. 20, 2011).

4.5 [If applicable:] Individuals imprisoned by the BOP must be notified of program reviews

and are expected to participate. 28 C.F.R. § 524.11(b).

4.6 The BOP must provide procedural due process under the Fifth Amendment in determining

the statutory individualized time in community corrections, especially considering the

coronavirus pandemic, and must not violate the Eighth Amendment’s minimum

requirements of health and safety for prisoners.

Requested Relief

Petitioner respectfully requests that this Court grant the writ of habeas corpus as “law and

justice require” under 28 U.S.C. § 2243 and:

1) issue a temporary restraining order for immediate transfer to community corrections or

reconsideration of the time in community corrections without delay;


2) or, in the alternative, authorize discovery and set this matter for an expedited hearing on

the merits while conditionally releasing the petitioner during litigation.

Respectfully submitted this _____ day of _________, 2020.

/s/ [attorney name]

[attorney name]


Page 1 MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS

[Attorney name], OSB #_________

Assistant Federal Public Defender

Email: [email protected]


Portland, OR 97204

Tel: (503) 326-2123

Fax: (503) 326-5524


IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

[Client name],

Petitioner,

v.

[Respondent name],

Respondent.

Case No. ________

MEMORANDUM IN SUPPORT OF

PETITION FOR WRIT OF HABEAS

CORPUS

Introduction

The petitioner, through counsel, moves the Court for issuance of a writ of habeas corpus

pursuant to 28 U.S.C. § 2241(c). The Bureau of Prisons’ adverse action during the coronavirus

emergency violates governing statutes, the BOP’s rules implementing those statutes, and the

Constitution. The courts have repeatedly recognized the essential judicial role in overseeing

custodial decisions that make the difference between prison and placement in the community,

where family and religious connections, employment, and other forms of support are available.


That essential judicial oversight must now also take into account changed circumstances caused

by the Covid-19 pandemic. As of March 20, 2020, the coronavirus has infected at least 265,495

people worldwide, leading to at least 11,147 deaths.1 In the United States, at least 16,018 people

have been infected, and as of March 20, 2020, at least 167 deaths in the United States were

attributable to Covid-19. The White House has declared a national emergency under Section 319

of the Public Health Service Act (42 U.S.C. § 247(d)).2 Also on March 16, 2020, the White House

issued guidance recommending that, for the next eight weeks, gatherings of ten persons or more

be canceled or postponed.3 [Client’s] continued incarceration makes him/her/them especially

susceptible to Covid-19, as the social distancing that public health officials advocate as essential

to curtailing the pandemic are simply impossible in [client’s] current prison facility. [Client’s]

susceptibility to Covid-19 must factor into the individualized consideration for placement in a

community correctional facility or home confinement. Each day that [client] remains in prison,

he/she/they face irreparable harm from the heightened risk of exposure to Covid-19.

Under mandatory statues and implementing rules, Congress required [client’s] custodians

to individualize his assessment based on current information, which included factors calling for

the maximum period of community corrections (one year) and the maximum period of home

confinement (six months). The Court should grant a temporary restraining order requiring transfer

1 Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering (CSSE) at Johns

Hopkins University, at

https://www.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b48e9ecf6 (updating regularly).

2 The White House, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease

(COVID-19) Outbreak (March 13, 2020). https://www.whitehouse.gov/presidential-actions/proclamation-declaring-

national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.

3 Sheri Fink, White House Takes New Line After Dire Report on Death Toll, THE NEW YORK TIMES (March 17,

2020) https://www.nytimes.com/2020/03/16/us/coronavirus-fatality-rate-white-

house.html?action=click&module=Spotlight&pgtype=Homepage.

https://www.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b48e9ecf6

https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/

https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/

https://www.nytimes.com/2020/03/16/us/coronavirus-fatality-rate-white-house.html?action=click&module=Spotlight&pgtype=Homepage

https://www.nytimes.com/2020/03/16/us/coronavirus-fatality-rate-white-house.html?action=click&module=Spotlight&pgtype=Homepage


to community corrections or reconsideration of a greater amount of community corrections, which

should include consideration of factors calling for the maximum of both types of community

corrections. In the alternative, the Court should authorize discovery and set this matter for an

expedited hearing on the merits while conditionally releasing [client] during litigation, or grant

the writ “as law and justice requires” under 28 U.S.C. § 2243.

A. Under Controlling Legal Authority, [Client’s] Ongoing Administrative Efforts At

Relief Do Not Require Dismissal Because He/She/They Faces Irreparable Harm From

Delay, The Administrative Process Does Not Appear To Be Empowered To Make The

Relevant Legal Determinations, And The BOP Response Indicates Exhaustion Would

Be Futile.

[Description of how the petitioner has provided the BOP with applications for

administrative remedies, to no avail.] In any event, under controlling authority, any failure to

exhaust administrative remedies should be excused.

[Description of the petitioner’s attempts to remedy his/her/their situation without

success, if applicable, and statement of how the BOP’s responses have demonstrated that the

BOP either cannot or will not remedy the situation itself despite having been notified of the

problem, including the federal defender’s Legislative Committee letter of March 20, 2020,

asking for individualized reconsideration for all inmates within a year of their projected

release date.]

In McCarthy v. Madigan, 503 U.S. 140 (1992), the Supreme Court found exhaustion

excused where 1) the prisoner faces irreparable harm from delay incident to pursuing

administrative remedies; or 2) there is some doubt whether the agency was empowered to render

relief; or 3) the agency has indicated predetermination of the issue, rendering exhaustion futile.

Id. at 146-49. Exhaustion is not a jurisdictional requirement under section 2241. United States v.

Woods, 888 F.2d 653, 654 (9th Cir. 1989); Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990).


Each of the factors listed in Madigan establishes, separately and cumulatively, that the Court

should reject the any complaint regarding failure to exhaust remedies.

First, [client] not only faced but has now endured irreparable harm from the delay incident

to litigation. [Client] is serving a [xx-month] sentence with a projected release date of [date],

which means that, despite eligibility for one year of community corrections, he/she/they already

has lost the opportunity for consideration of [xx] months of community corrections. See Serrato

v. Clark, 486 F.3d 560, 566 (9th Cir. 2007) (“A prisoner’s right to consideration for early release

is a valuable one that we have not hesitated to protect.”) (quoting Cort v. Crabtree, 113 F.3d 1081,

1085 (9th Cir. 1997) (emphasis in original)). Where the BOP failed to administer the sentence in

conformance with its own rules and controlling statutes, the imminent risk of irreparable harm in

the form of increased time in prison rather than community corrections excuses full exhaustion of

administrative remedies. See, e.g., Barq v. Daniels, 428 F. Supp. 2d 1147, 1150 (D. Or. 2006);

Hicks v. Hood, 203 F. Supp. 2d 379, 382 (D. Or. 2002); Buggs v. Crabtree, 32 F. Supp. 2d 1215,

1218 (D. Or. 1998).

Additionally, [client] faces irreparable harm from continued incarceration due to the

Covid-19 pandemic, as his/her/their conditions of confinement create an optimal environment for

the transmission of contagious disease.4 Public health experts believe that incarcerated individuals

“are at special risk of infection, given their living situations,” and “may also be less able to

participate in proactive measures to keep themselves safe;” “infection control is challenging in

4 Joseph A. Bick (2007). Infection Control in Jails and Prisons. Clinical Infectious Diseases 45(8):1047-1055, at

https://doi.org/10.1086/521910.

https://doi.org/10.1086/521910


these settings.”5 Crowding, inadequate ventilation, and security issues all contribute to the spread

of infectious disease.6 Hand sanitizer, an effective disinfectant recommended by the Centers for

Disease Control to reduce transmission rates, is contraband in jails and prisons because of its

alcohol content.7 [Client] suffers irreparable harm each day that he/she/they spend in prison under

conditions that cause him/her/them to be particularly susceptible to contracting Covid-19.

Second, the BOP’s administrative remedy system does not purport to make determinations

regarding whether custody violates statutes and the Constitution. Program Statement 1330.18,

Administrative Remedy Program (Jan. 6, 2014). The regulations explicitly include, as a required

step in the administrative procedure, the type of efforts with staff to raise complaints as [client]

has done. See PS 1330.18 at 4 (citing 28 C.F.R. § 542.13). In short, there is no indication the

system designed to review decisions relating to prison discipline and other such matters provides

meaningful review of the statutory and constitutional questions raised by [client].

Third, [client sought help from appropriate BOP personnel and received an

unequivocal response that they could not help him.] Exhaustion of administrative remedies is

excused where futile. See, e.g., Arrington v. Daniels, 465 F. Supp. 2d 1104, 1107 (D. Or. 2006)

(citing Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir.1993)), reversed on other

grounds, 516 F.3d 1106 (9th Cir. 2008); Downey v. Crabtree, 923 F. Supp. 164, 165 (D. Or.),

5 “Achieving A Fair And Effective COVID-19 Response: An Open Letter to Vice-President Mike Pence, and Other

Federal, State, and Local Leaders from Public Health and Legal Experts in the United States,” (March 2, 2020), at

https://bit.ly/2W9V6oS.

6 Michael Kaste, Prisons and Jails Worry About Becoming Coronavirus ‘Incubators’, NPR (March 13, 2020)

https://www.npr.org/2020/03/13/815002735/prisons-and-jails-worry-about-becoming-coronavirus-incubators.

7 Keri Blakinger & Beth Schwarzapfel, How Can Prisons Contain Coronavirus When Purell is a Contraband?,

ABA JOURNAL (March 13, 2020) https://www.abajournal.com/news/article/when-purell-is-contraband-how-can-

prisons-contain-coronavirus.

https://bit.ly/2W9V6oS

https://www.npr.org/2020/03/13/815002735/prisons-and-jails-worry-about-becoming-coronavirus-incubators

https://www.abajournal.com/news/article/when-purell-is-contraband-how-can-prisons-contain-coronavirus

https://www.abajournal.com/news/article/when-purell-is-contraband-how-can-prisons-contain-coronavirus


affirmed, 100 F.3d 662 (9th Cir. 1996). There is no reasonable possibility that any further resort

to administrative procedures would have produced a different result.

The BOP may also raise the Prison Litigation Reform Act in an attempt to make exhaustion

mandatory. But the PLRA does not “expressly apply to habeas corpus petitions filed pursuant to

28 U.S.C. § 2241.” Hicks, 203 F. Supp. 2d at 382; see Grier v. Hood, 46 F. App’x 433, 440 (9th

Cir. 2002) (“Congress has made no indication that habeas petitioners are statutorily required to

exhaust administrative remedies before filing under Section 2241 for habeas corpus relief.”) (citing

Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990) (“The requirement that federal prisoners exhaust

remedies before filing a habeas corpus petition was judicially created; it is not a statutory

requirement.”)). Any reliance on PLRA cases is misplaced. Just as Madigan foreclosed

application of mandatory exhaustion in the absence of an express statutory requirement, [client’s]

petition for habeas corpus relief under section 2241 is not subject to the PLRA. The Ninth Circuit

has routinely ruled on the merits regarding habeas corpus claims against the BOP’s administration

of its community corrections program. See, e.g., Sacora v. Thomas, 628 F.3d 1059 (9th Cir. 2010)

(section 2241 class action regarding rules implementing community corrections under the Second

Chance Act); Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008) (section 2241 relief granted for

implementation of BOP rules found to be inconsistent with statute). This case is not a civil action

within the purview of the PLRA.

This Court should reject any effort to insulate BOP actions the petitioner contends violated

federal law requiring individualized determinations regarding the period of community

corrections. All three of the Madigan factors excuse exhaustion of remedies, and this is a habeas

corpus case controlled by Madigan, not the PLRA. Any one of the Madigan factors would be

sufficient for this Court to review the case on the merits.


B. Any Claim That Bureau Of Prisons’ Placement Decisions Are Immune From Judicial

Review Runs Counter To Controlling Ninth Circuit Authority.

While some purely discretionary decisions are insulated from judicial review, the courts

have repeatedly recognized authority to provide “judicial review for allegations that BOP action

is contrary to established federal law, violates the Constitution, or exceeds its statutory authority.”

See Rodriguez v. Copenhaver, 823 F.3d 1238, 1242 (9th Cir. 2016) (“Although a district court has

no jurisdiction over discretionary designation decisions, it does have jurisdiction to decide whether

the [BOP] acted contrary to established federal law, violated the Constitution, or exceeded its

statutory authority when it acted pursuant to 18 U.S.C. § 3621.”) (citing Close v. Thomas, 653 F.3d

970, 973-74 (9th Cir. 2011)); Abbott v. Fed. Bureau of Prisons, 771 F.3d 512, 514 (9th Cir. 2014)

(same).

The present case involves all of the above-listed unlawful government action, making

judicial review appropriate. The petition alleges violations of rules and statutes requiring

individualized consideration in determining the period of time in community corrections. See,

e.g., 18 U.S.C. § 3621(b)(3) (requiring consideration of designation decision include “the history

and characteristics of the prisoner”); 18 U.S.C. § 3624(c)(6)(B) (requiring regulation that includes

placement in community corrections “determined on an individual basis”); 18 U.S.C. § 3624(c)(2)

(“The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and

lower needs on home confinement for the maximum amount of time permitted under this

paragraph.”); 28 C.F.R. § 524(b) (prisoners will be notified of program reviews and are expected

to participate); Program Statement 5330.11, Psychology Treatment Programs, § 2.5.15(a)(1)(ii),

Incentives for RDAP participation, at 19 (March 16, 2009) (RDAP participants should receive

“[c]onsideration for the maximum period of time in a community-based treatment program[.]”).


[Client] is asserting that the BOP’s adverse action implicated the range of federal law that the

Ninth Circuit recognizes as remedial under section 2241.

C. Under The Standards For Temporary Restraining Orders, The Court Should Grant

Expedited Relief To Avoid Irreparable Harm To The Petitioner In A Manner That

Involves No Prejudice To The Respondent.

“In deciding whether to grant a motion for TRO, courts look to substantially the same

actors that apply to a court’s decision on whether to issue a preliminary injunction.” Innovation

Law Lab v. Nielsen, 310 F. Supp. 3d 1150, 1156 (D. Or. 2018). Those factors are whether 1) the

petitioner is likely to succeed on the merits; 2) the petitioner is likely to suffer irreparable harm

without preliminary relief; 3) the balance of equities tips in favor of the petitioner; and 4) a

preliminary injunction is in the public interest. Winter v. Nat’l Res. Def. Council, 555 U.S. 7, 20

(2008). Serious questions going to the merits and a hardship balance that tips sharply toward the

plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test

are also met. Innovation Law Lab, 310 F. Supp. 3d at 1156 (citing Alliance for the Wild Rockies

v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011)). Each factor tilts strongly toward the grant of

interim relief in the form of an order requiring immediate transfer to community corrections, in

compliance with the First Step Act and the Second Chance Act and their implementing regulations

and rules. The Court should require reconsideration based on individualized factors with an

opportunity for [client] to provide information and requests, including immediate transfer to

community corrections, in compliance with the First Step Act and the Second Chance Act and

their implementing regulations and rules.

1. The Petitioner Is Likely To Succeed On The Merits.

The writ of habeas corpus provides a vehicle for relief for prisoners who are in custody “in

violation of the laws or Constitution” of the United States. 28 U.S.C. § 2241(c)(3). Prisoners of


the BOP are eligible for section 2241 relief where consideration for a statutory benefit is denied in

violation of federal rules or statutes or the Constitution:

Rodriguez v. Copenhaver, 823 F.3d 1238 (9th Cir. 2016) (BOP nunc pro tunc

designation decision under section 3621(b) violated statute and Constitution);

Abbott v. Federal Bureau of Prisons, 771 F.3d 512 (9th Cir. 2014) (BOP

program statement invalidly expanded terms of regulation);

Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008) (BOP regulations violated

clear statutory instruction);

Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) (BOP regulation invalid

under the section 706 of the APA for failure to adequately articulate its

rationale); Crickon v. Thomas, 579 F.3d 978 (9th Cir. 2009) (same);

Bohner v. Daniels, 243 F. Supp. 2d 1171, 1172 (D. Or. 2003), aff'd sub nom.

Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005) (BOP regulation and program

statement invalid under the Administrative Procedure Act for lack of notice-

and-comment);

Cort v. Crabtree, 113 F.3d 1081 (9th Cir. 1997) (BOP’s retroactive application

of change notice invalidly altered program statement);

Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir. 1997) (BOP's implementing

regulation and program statements invalidated as inconsistent with statute);

Downey v. Crabtree, 100 F.3d 662, 667 (9th Cir. 1996) (same).

[Client’s] petition and request for emergency consideration presents compelling bases for relief,

asserting that no individualized consideration occurred as contemplated by the applicable rules and

statutes.

The statutes upon which [client] relies are mandatory congressional directives to the

agency administering judicial sentences:

The BOP shall designate the place of imprisonment considering “the history and

characteristics of the prisoner.” 18 U.S.C. § 3621(b).

“The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk

levels and lower needs on home confinement for the maximum amount of time

permitted under this paragraph.” 18 U.S.C. § 3624(c)(2).


Regulations “shall issue” that “shall ensure” that placement in community corrections

“determined on an individual basis,” and be “of sufficient duration to provide the

greatest likelihood of successful reintegration into the community.” 18 U.S.C. §

3624(c)(6)(B) & (C).

“The word ‘shall’ is ordinarily the language of command.” United States v. Kowalczyk, 805 F.3d

847, 857 (9th Cir. 2015) (citing Alabama v. Bozeman, 533 U.S. 146, 153 (2001)). The “maximum

period of time” is one year, with up to six months in home detention. 18 U.S.C. § 3624(c). Further,

following passage of the First Step Act of 2018, Pub. L. No. 115-391, § 602, 132 Stat. 5194, 5238,

the BOP “shall, to the extent practicable, place prisoners with lower risk levels and lower needs

on home confinement for the maximum amount of time permitted under this paragraph,” which is

“the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months,” 18 U.S.C.

§ 3624(c)(2).

Individualized consideration for the maximum amount of time in community corrections

and home confinement must take into account [client’s] current potential for exposure to COVID-

19 while incarcerated. During the H1N1 epidemic in 2009, many jails and prisons dealt with high

numbers of cases because they could not maintain the level of separation and sanitation necessary

to prevent widespread infection.8 In China, officials confirmed the coronavirus spreading at a

rapid pace in Chinese prisons, counting 500 cases as of February 21, 2020.9 In the Daenam

inpatient psychiatric ward in South Korea, where conditions of confinement are similar to those at

an American jail or prison, 101 out of 103 inmates became infected with COVID-19, and, as of

February 29, 2020, seven patients had died of complications from the disease.10 The Prison Policy

8 Prisons and Jails are Vulnerable to COVID-19 Outbreaks, The Verge (Mar. 7, 2020) https://bit.ly/2TNcNZY.

9 Rhea Mahbubani, Chinese Jails Have Become Hotbeds of Coronavirus As More Than 500 Cases Have Erupted,

Prompting the Ouster of Several Officials, Business Insider (Feb. 21, 2020) at https://bit.ly/2vSzSRT.

10 Min Joo Kim, How a South Korean Psychiatric Ward Became a ‘Medical Disaster’ When Coronavirus Hit, THE

WASHINGTON POST (February 29, 2020) https://www.washingtonpost.com/world/asia_pacific/how-a-south-korean-

https://bit.ly/2TNcNZY

https://bit.ly/2vSzSRT

https://www.washingtonpost.com/world/asia_pacific/how-a-south-korean-psychiatric-ward-became-a-medical-disaster-when-coronavirus-hit/2020/02/29/fe8f6e40-5897-11ea-8efd-0f904bdd8057_story.html


Initiative has called on American jails and prisons to release medically fragile and older adults,

noting that these persons are at high risk for serious complications from COVID-19. 11

Individualized consideration for [client’s] placement in a community correctional facility must

take into account the heightened exposure to COVID-19 that [client] faces each day he/she/they

remains in prison.

[Client] is also likely to succeed because the unlawful agency action occurred in the

context of the BOP’s failure to carry out the statutory directive to promulgate regulations to guide

BOP personnel in making decisions regarding community corrections. The Second Chance Act,

as amended, included the following mandatory directive that the BOP issue implementing

regulations:

. . . not later than 90 days after enactment, which shall ensure that placement in a

community correctional facility is

(A) conducted in a manner consistent with section 3621(b) of this title;

(B) determined on an individual basis; and

(C) of sufficient duration to provide the greatest likelihood of successful

reintegration into the community.

18 U.S.C. § 3624(c)(6). The BOP personnel still have no such regulatory direction over a decade

after this 90-day deadline. The BOP’s initial effort over ten years ago simply reiterated the five

section 3621(b) factors. Judge Marsh held that the regulation was invalid. Sacora, 628 F.3d at

1065 (“[T]he district court granted the petition with respect to the BOP’s formal regulations, 28

C.F.R. §§ 570.20–.22, finding that the BOP’s failure to use notice-and-comment provisions in

psychiatric-ward-became-a-medical-disaster-when-coronavirus-hit/2020/02/29/fe8f6e40-5897-11ea-8efd-

0f904bdd8057_story.html.

11 Peter Wagner & Emily Widra, No Need to Wait For Pandemics: The Public Health Case for Criminal Justice

Reform, Prison Policy Initiative (March 6, 2020) https://www.prisonpolicy.org/blog/2020/03/06/pandemic/.



https://www.prisonpolicy.org/blog/2020/03/06/pandemic/


promulgating those regulations violated the APA, and enjoined the BOP from considering inmates

for placement in RRCs pursuant to those regulations.”). With the regulation invalidated, the

Sacora court found that informal rules did not violate the statute or the Administrative Procedure

Act. Id. at 1069-70.

In the decade since, the BOP published a proposed rule in 2011 that utterly failed to meet

the statutory directive. 76 Fed. Reg. 58199 (Sept. 20, 2011). In fact, the proposed rule, as did the

rule invalidated by Judge Marsh, does nothing more than repeat word-for-word statutory language,

which the Supreme Court has recognized as an administrative nullity:

Simply put, the existence of a parroting regulation does not change the fact that the

question here is not the meaning of the regulation but the meaning of the statute.

An agency does not acquire special authority to interpret its own words when,

instead of using its expertise and experience to formulate a regulation, it has elected

merely to paraphrase the statutory language.

Gonzales v. Oregon, 546 U.S. 243, 257 (2006). The statutory delegation was mandatory, which

defines the scope of the BOP’s lawful authority. See Lopez v. Davis, 531 U.S. 230, 241 (2001)

(providing examples where “Congress used ‘shall’ to impose discretionless obligations [on the

BOP]”) (emphasis added). The BOP actions without the administrative process required by

Congress are outside the lawful delegation of authority, tainting the process in its entirety. The

BOP failed to take a required step “to improve such transition to the community, including

placement of such individuals in community corrections facilities.” 34 U.S.C. § 60541(c)(2).

2. The Petitioner Is Likely To Suffer Irreparable Harm If He/She/They Does Not

Receive Preliminary Relief.

Every passing day without the required consideration for community corrections causes

[client] irreparable harm. Each day spent in prison has constitutional, and in this case also statutory

and regulatory, significance. See Lafler v. Cooper, 566 U.S. 156, 165 (2012) (“[A]ny amount of


[additional] jail time has Sixth Amendment significance.”) (quoting Glover v. United States, 531

U.S. 198, 203-04 (2001)). Additionally, the global Covid-19 pandemic poses an immediate, non-

speculative, and potentially lethal risk to [client’s] health that is increased by his/her/their

continued incarceration, as discussed above.

3. The Balance Of Equities Tips In Favor Of The Petitioner.

The balance of equities strongly favors immediate relief. Not only is [client] a prisoner

held in the power of custodians who are not following their own rules, but also his/her/their

continued incarceration increases the risk that [client] and other prisoners that he/she/they come

into contact with will contract Covid-19. Asking [client’s] custodians to comply with the statutory

and constitutional minimum procedures is not unduly burdensome—especially in this time of

global pandemic. Allowing a low-risk prisoner the incentives he/she/they have earned by

increasing time in community corrections advances public and individual interests while causing

no serious governmental harm.

4. A Preliminary Injunction Is In The Public Interest.

The overarching statutory direction from Congress in the Second Chance Act and First

Step Act is to increase the use of community corrections for prisoners like [client]. In doing so,

the public interest is served in several key ways. First, by fostering reentry programs, Congress

recognized that early return to communities allowed prisoners a running start on family

reunification and programming in the community where they will be living. Second, Congress

sought to reduce the soaring cost of prisons by utilizing the significant savings accomplished by

increased use of home detention. Third, expanded use of community corrections ameliorates to

some extent the societal ills associated with mass incarceration. Finally, releasing [client] to

community corrections or home confinement would help to lower the risk that [client] and others


in his/her/their facility will contract Covid-19, thereby reducing the transmission of this disease.

All these public interests are well served by grant of relief in this case.

D. If This Court Does Not Grant Expedited Relief, The Petitioner Should Be

Conditionally Released During Litigation.

[Client] requests conditional release pending litigation of his/her/their petition if this

Court declines to grant expedited relief. The Supreme Court has repeatedly stated that “habeas

corpus is not ‘a static, narrow, formalistic remedy,’ but one which must retain the ‘ability to cut

through barriers of form and procedural mazes.’” Hensley v. Municipal Court, 411 U.S. 345, 349-

50 (1973) (citations omitted). This Court has the authority to order [client’s] release while

his/her/their claim is litigated. Id. at 352 (habeas authority includes the power to “order [a]

petitioner’s release pending consideration of his habeas corpus claim”) (citing In re Shuttlesworth,

369 U.S. 35 (1962)); Marino v. Vasquez, 812 F.2d 499, 507 (9th Cir. 1987) (the authority of the

court to conditionally release a prisoner pending habeas proceedings derives from the power to

issue the writ itself). [Client] suffers immediate and irreparable injury each day he/she/they

remain incarcerated and respectfully requests to be conditionally released pending the litigation of

his/her/their claim if this Court does not grant expedited relief.

Conclusion

In [his/her/their] petition and motion for emergency relief, [client] made alternative

requests for immediate transfer to community corrections and reconsideration of the designation

decision under proper rules. Under 28 U.S.C. § 2243, this Court has authority to “summarily hear

and determine the facts, and dispose of the matter as law and justice require.” Habeas corpus

provides flexible remedies to do justice in the individual case. See Boumediene v. Bush, 553 U.S.


723, 780 (2008) (Habeas “is, at its core, an equitable remedy.”) (quoting Schlup v. Delo, 513 U.S.

298, 319 (1995)). On the bases of the submissions in this case and the foregoing authority, we

respectfully request that the Court 1) grant the writ of habeas corpus and either order immediate

transfer to community corrections or reconsideration of the time in community corrections without

delay, or 2) in the alternative, authorize discovery and set this matter for an expedited hearing on

the merits while conditionally releasing [client] during litigation.

Respectfully submitted this _____ day of _________, 2020.

/s/ [attorney name]

[attorney name]


A. Additional Constitutional Bases for Relief.

The BOP’s noncompliance with applicable statutes and rules requiring individualized

consideration has resulted in a violation of [client’s] right to procedural due process. The

mandatory language of 18 U.S.C. § 3624(c)(1)-(2) (“shall”) combined with the interests at stake

implicate the Fifth Amendment’s procedural due process protections. Three factors must be

balanced in evaluating the constitutional sufficiency of BOP procedures: 1) [client’s] interest in

participating in community corrections; 2) the risk of an erroneous deprivation of [client’s] greater

time in community corrections; and 3) the government’s interest. See Mathews v. Eldridge, 424

U.S. 319, 335 (1976). Here, the BOP’s failure to make a true individualized consideration under

sections 3621(b) and 3624(c), which must take into account the dangers posed to [client] by the

novel coronavirus pandemic, greatly increases the risk of an erroneous determination regarding

the appropriate time in prerelease custody.

Additionally, [client’s] current conditions of confinement, to the extent present

incarceration provides inadequate protection from the Covid-19 pandemic, implicate the Eighth

Amendment’s prohibition on cruel and unusual punishments. “A prison official’s ‘deliberate

indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”

Farmer v. Brennan, 511 U.S. 825, 828 (1994). Courts have found that deliberate indifference may

be established by an inadequate response to a communicable disease or other exposure to health

risks. See, e.g., id. at 843 n.8 (prison official may be guilty of deliberate indifference when he

“knows that some diseases are communicable and that a single needle is being used to administer

flu shots to prisoners but refuses to listen to a subordinate who he strongly suspects will attempt

to explain the associated risk of transmitting disease”); Helling v. McKinney, 509 U.S. 25, 35

(1993) (inmate stated a claim for “deliberate indifference” to threat to his health posed by second-

hand smoke generated by five-pack-a-day cellmate); Hutto v. Finney, 437 U.S. 678, 682-83 (1978)

(conditions of “punitive isolation” constituted cruel and unusual punishment because, among other

things, “[a]lthough some prisoners suffered from infectious diseases such as hepatitis and venereal

disease,” their “mattresses were removed and jumbled together each morning, then returned to the

cells at random in the evening”); Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981) (failure to

adequately screen newly arrived inmates for communicable diseases constituted deliberate

indifference; “it is unnecessary to require evidence that an infectious disease has actually spread

in an overcrowded jail before issuing a remedy”); Masonoff v. DuBois, 899 F. Supp. 782, 797 (D.

Mass. 1995) (inmates raised triable issue of fact regarding prison officials’ deliberate indifference

to possible spread of communicable diseases through use of chemical toilets). The BOP’s

insufficient response to the dangers posed by the novel coronavirus emergency has created a

substantial risk of serious harm to [client], in violation of the Eighth Amendment.

The Eighth Amendment’s prohibition against cruel and unusual punishment “is equally

pertinent to general conditions of confinement that may prevail at a prison” as it is to the actions

of a particular prison official. Gates v. Collier, 501 F.2d 1291, 1300-01 (5th Cir. 1974) (Eighth

Amendment violated where, among other conditions, contaminated prison water supply had “led

to the spread of infectious diseases” and “inmates with serious contagious diseases” had been

“allowed to mingle with the general prison population”); see also Joy v. Healthcare CMS, 534 F.

Supp. 2d 482, 483-85 (D. Del. 2008) (inmate stated Eighth Amendment claim by alleging that

“inmates brought to the institution are housed without being quarantined and since his

incarceration he has been exposed to tuberculosis”); Satterwhite v. Dy, 2013 WL 257420, at *11

(W.D. Wash. Jan. 23, 2013) (BOP policy regarding preventing spread of tuberculosis in prison

demonstrated “societal consensus” satisfying objective component of Eighth Amendment claim

regarding treatment of latent tuberculosis); Binion v. Glover, 2008 WL 4155355, at *13 (E.D.

Mich. July 28, 2008), report and recommendation adopted, 2008 WL 4097407 (E.D. Mich. Aug.

29, 2008) (“exposure to bloodborne contagious or infectious diseases without proper protective

equipment [] satisfies the objective factor” of an Eighth Amendment violation). As explained

above, [client’s] conditions of confinement create an optimal environment for the transmission of

contagious disease like the novel coronavirus and create the sort of conditions that the Eighth

Amendment protects against.

Federal Public & Community Defenders Legislative Committee

52 Duane Street, 10th Floor New York, NY 1007

Tel: (212) 417-8738

Co-Chairs David Patton Executive Director Federal Defenders of New York Jon Sands Federal Defender District of Arizona

March 19, 2020

The Honorable William P. Barr Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 The Honorable Jeffrey A. Rosen Deputy Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Mr. Michael Carvajal Director Federal Bureau of Prisons 320 First Street NW Washington, DC 20534 Dear Attorney General Barr, Deputy Attorney Rosen, and Director Carvajal:

We write on behalf of the Federal Public and Community Defenders. At any given time, Defenders and other appointed counsel under the Criminal Justice Act represent 80 to 90 percent of all federal defendants because they cannot afford counsel.

The COVID-19 global pandemic has turned our nation’s jails and prisons into ticking time bombs. These jails and prisons do not provide adequate medical care in the best of times.1 Many prisons and

1 See U.S. Dep’t of Justice Office of the Inspector General, Review of the Federal Bureau of Prisons’ Medical Staffing Challenges (Mar. 2016), https://oig.justice.gov/reports/2016/e1602.pdf (finding that the BOP experienced chronic medical staff shortages and failed to take adequate measures to address them, leading to problems meeting the medical needs of prisoners, requiring the use of outside hospitals, and endangering the safety and security of institutions); U.S. Dep’t of Justice Office of the Inspector General, The Impact of an Aging Inmate Population on the Federal Bureau of Prisons (Rev. Feb. 2016), https://oig.justice.gov/reports/2015/e1505.pdf (finding that BOP facilities and services, including medical services, were inadequate to meet the needs of an aging prison population leading to delays in medical treatment for prisoners with acute and chronic heart and neurological conditions, who wait an average of 114 days to see medical specialists.); David Patton, Statement



Tel: (212) 417-8738

2

pretrial detention facilities are dramatically understaffed,2 and populated by individuals who are older and medically compromised.3 Today, the Bureau of Prisons (BOP) confirmed that two staff members were presumed positive for COVID-19, marking the first possible cases in the federal prison system.4 They are surely not the last. As BOP has itself acknowledged, the risks of the rapid transmission of contagion in the tight quarters of prisons and jails present major challenges in keeping inmates and staff safe and healthy.5 This stark reality has been widely recognized.6

Lowering the population of prisons and jails is the simplest and most effective way to disrupt the transmission of COVID-19. Our clients and other incarcerated individuals—along with the correctional officers, attorneys, and contractors who spend their days moving between prisons and

from Federal Defenders of New York, Federal Defenders of New York (Mar. 8, 2020), https://federaldefendersny.org/about-us/news/statement-from-federal-defenders-of-new-york.html.

2 See Oversight of the Federal Bureau of Prisons and Implementation of the First Step Act of 2018: Hearing before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 115th Cong. 2-4 (2019) (statement of Kathleen Hawk Sawyer, Director, Fed. Bureau of Prisons).

3 See U.S. Dep’t of Justice Office of the Inspector General, The Impact of an Aging Inmate Population on the Federal Bureau of Prisons, 1 (Rev. Feb. 2016) (From FY 2009 to FY 2013 “the number of inmates age 50 and older in BOP-managed institutions was the fastest growing segment of the BOP population, increasing by 25 percent.”); Erica Zunkel, 18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in “the Most Effective Manner,” Notre Dame J. Int’l & Comp. L., Vol. 9: Issue 1, Article 5, at 57– 61 (2019) (detailing how, even before this crisis, the BOP’s overcrowding, staffing shortages, and treatment approach compromise its ability to provide adequate medical care to people in federal prisons, in particular those fifty and older).

4 See Cassidy McDonald, Federal Prison Workers Say Conflicting Orders on Coronavirus Response is Putting Lives at Risk, CBS News (Mar. 19, 2020), https://www.cbsnews.com/news/coronavirus-prison-federal-employees-say-conflicting-orders-putting-lives-at-risk-2020-03-19/.

5 See Fed. Bureau of Prisons, Program Statement 6190.04: Infectious Disease Management (2014).

6 See Joseph A. Bick, Infection Control in Jails and Prisons, 45 Clinical Infectious Diseases 1047-155 (2007), https://doi.org/10.1086/521910; Gregg S. Gonsalves, et al., Achieving A Fair And Effective COVID-19 Response: An Open Letter to Vice-President Mike Pence, and Other Federal, State, and Local Leaders from Public Health and Legal Experts in the United States (March 2, 2020), https://bit.ly/2W9V6oS (open letter signed by 815 experts in public health, law, and human rights); see also, Danielle Ivory, ‘We Are Not a Hospital’: A Prison Braces for the Coronavirus, N.Y. Times (Mar. 17, 2020), https://www.nytimes.com/2020/03/17/us/coronavirus-prisons-jails.html; Martin Kaste, Prisons and Jails Worry About Becoming Coronavirus ‘Incubators’, NPR (March 13, 2020), https://www.npr.org/2020/03/13/815002735/prisons-and-jails-worry-about-becoming-coronavirus-incubators; Keri Blakinger & Beth Schwarzapfel, How Can Prisons Contain Coronavirus When Purell is a Contraband?, ABA JOURNAL (March 13, 2020), https://www.abajournal.com/news/article/when-purell-is-contraband-how-can-prisons-contain-coronavirus; Jennifer Hansler & Kylie Atwood, Pompeo Calls for Humanitarian Release of Wrongfully Detained Americans in Iran Amid Coronavirus Outbreak, CNN (Mar. 10, 2020), https://cnn.it/2W4OpV7.



Tel: (212) 417-8738

3

the public—are in grave and imminent danger.7 We urge you to use existing authority to take immediate and decisive action to both reduce the number of people entering federal detention and release individuals who are already incarcerated. Failure to do so may well be a death sentence for many.

It is imperative that the Department of Justice immediately take the following two steps:

1. Direct all United States Attorneys’ Offices to minimize arrests, decline to seek detention of individuals at their initial appearance in court and consent to the release of those already detained except in cases involving a specific and substantial risk that a person will cause bodily injury to or use violent force against the person of another; and

2. Direct BOP to utilize its existing authorities under the First Step Act and Second Chance Act to maximize the use of community corrections and compassionate release.

A. The Department of Justice Should Take Immediate Measures to Suspend New Arrests, Reduce Court Appearances, And Reduce Pretrial Detention.

Numerous state and local jurisdictions have already taken smart steps to dramatically reduce the number of people entering and remaining in detention.8 DOJ and Immigrations and Customs

7 Over 175,000 individuals are incarcerated in federal prisons and jails, and thousands of people move in and out of federal prisons every day. See U.S. Fed. Bureau of Prisons, Statistics, https://www.bop.gov/about/statistics/population_statistics.jsp. 8 See, e.g., Tim Prudente & Phillip Jackson, Baltimore State’s Attorney Mosby to Stop Prosecuting Drug Possession, Prostitution, and Other Crimes Amid Coronavirus, Baltimore Sun (Mar. 18, 2020), https://www.baltimoresun.com/coronavirus/bs-md-ci-cr-mosby-prisoner-release-20200318-u7knneb6o5gqvnqmtpejftavia-story.html (Baltimore State’s Attorney ordered staff to “dismiss pending criminal charges against anyone arrested for possessing drugs including heroin, attempted distribution of any drug, prostitution, trespassing, minor traffic offenses, open container and urinating in public”); Erica Orden, Brooklyn Will Stop Prosecuting “Low-Level Offenses that Don’t Jeopardize Public Safety,” CNN (Mar. 17, 2020), https://www.cnn.com/world/live-news/coronavirus-outbreak-03-17-20-intl-hnk/h_0254c4f54c1c52e79ce419e22ca35e6b (Brooklyn DA will stop prosecuting low-level offenses and is also asking public defenders to inform office of vulnerable clients detained pretrial whom the DA “should consider releasing during this crisis”); Max Marin & Rya Briggs, Philly Police to Halt Narcotic Arrests, Other Charges During COVID Outbreak, WHYY.org (Mar. 17, 2020), https://whyy.org/articles/philly-police-to-halt-narcotics-arrests-other-charges-during-covid-outbreak/ (Philadelphia Police Commissioner instructed department to delay arrests for low-level criminal offenses, including all narcotics activity); Darwin BondGraham, San Francisco Officials Push to Reduce Jail Population to Prevent Coronavirus Outbreak, The Appeal (Mar. 11, 2020), https://theappeal.org/coronavirus-san-francisco-reduce-jail-population/ (District Attorney “directed prosecutors not to oppose motions to release pretrial detainees facing misdemeanor charges or drug-related felony charges if the person is deemed to pose no threat to public safety. [He] also directed his staff to ‘strongly consider’ credit for time served in plea deals so that more people can be released”); see also Julia Marsh & Ben Feuerherd, NYC to Begin Releasing Inmates Amid Coronavirus Outbreak, N.Y. Post (Mar. 18, 2020), https://nypost.com/2020/03/18/nyc-to-begin-releasing-inmates-amid-coronavirus-outbreak/ (“Mayor Bill de Blasio plans to release ‘vulnerable’ inmates from city jails to prevent the spread of the coronavirus pandemic into local lockups”).



Tel: (212) 417-8738

4

Enforcement (ICE) have taken initial—but insufficient—steps in the same direction.9 DOJ should immediately expand their efforts more broadly.

These changes will neither jeopardize public safety nor increase failure to appear rates; data proves that higher federal release rates do not lead to more crime or flight.10 Even before this crisis, the Chair of the House Judiciary Committee lamented that federal “release rates have steeply declined” since the passage of the Bail Reform Act, and said, “surely community safety does not justify this trend.”11

U.S. Attorney’s offices should be directed to:

1. Decline or suspend prosecutions, except in cases involving a specific and substantial risk that a person will cause bodily injury to or use violent force against the person of another.

2. Seek arrest warrants only in cases involving a specific and substantial risk that a person will cause bodily injury to or use violent force against the person of another, and recall outstanding warrants in cases that do not involve such a risk;

3. Decline to seek detention of individuals at their initial appearance in court and consent to the release of those already detained absent cases involving a specific and substantial risk that a person will cause bodily injury to or use violent force against the person of another. Failure to adopt this policy would run afoul of the Constitution; pretrial detention under these

9 See Maria Sacchetti & Arelis Hernandez, ICE to Stop Most Immigration Enforcement Inside U.S., Will Focus on Criminals During Coronavirus Outbreak, Wash. Post (Mar. 18, 2020), https://www.washingtonpost.com/national/ice-halting-most-immigration-enforcement/2020/03/18/d0516228-696c-11ea-abef-020f086a3fab_story.html.

10 In 2019, fully 99% of released federal defendants nationwide appeared for court, and over 98% did not commit new offenses while on bond. See AO Table H-15, http://jnet.ao.dcn/sites/default/files/pdf/H15_Ending12312019.pdf (showing a nationwide failure to appear rate of 1.1% and a rearrest rate of 1.8% in 2019).

These numbers hold steady for the federal districts with the highest release rates in the country. In 2019, the six districts with the highest release rates (average 69.08%) had an average failure to appear rate of 0.42% and an average re-arrest rate of 0.91%. See AO Table H-15; Table H-14A, https://www.uscourts.gov/sites/default/files/data_tables/jb_h14a_0930.2019.pdf.

11 The Administration of Bail by State and Federal Courts: A Call for Reform: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 115th Cong. 50:55 (2019), https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=2256.



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circumstances is not purely “regulatory in nature,” but rather “constitute[s] punishment before trial in violation of the Due Process Clause.”12

B. BOP Should Immediately Accelerate And Expand Inmates’ Transfer To Community Corrections.

We strongly urge BOP to exercise its discretion to designate inmates to community corrections under 18 U.S.C. § 3621(b) to maximize the length of time prisoners eligible for community corrections participate in such programs. Because the average time individuals spend in community corrections has been only about one third of the available time, increased utilization of community corrections could result in a substantial difference in the prison population.13 The Second Chance Act expanded to one year the amount of time a prisoner can spend in community placement and provided that the lesser of up to six months of that time, or ten percent of the sentence imposed, could be spent in home confinement. 18 U.S.C. § 3624(c). The First Step Act took pains to underscore this expansion, providing in section 602:

Home confinement authority. – The authority under this subsection may be used to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months. The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.14

BOP has directed staff to comply with this directive.15

Accelerating and expanding the use of community corrections in response to the national emergency is consistent with statutes and rules that require individualized consideration of the length of community corrections.16 General and specific risks arising from the COVID-19 pandemic must be

12 United States v. Salerno, 481 U.S. 739, 748 (1987).

13 See, e.g., U.S. Dep’t of Justice Office of the Inspector General, Audit of the Federal Bureau of Prisons’ Management of Inmate Placements in Residential Reentry Centers and Home Confinement 22 (Nov. 2016).

14 The First Step Act of 2018, § 602, Pub. L. No. 115-391, 132 Stat. 5194, 5238 (2018) (amending 18 U.S.C. § 2624(c)(2)) (emphasis added).

15 See Fed. Bureau of Prisons, Operations Memorandum: 001-2019 at 2, Home Confinement under the First Step Act, (Apr. 4, 2019) (providing that “staff should refer eligible inmates for the maximum amount of time permitted under the statutory requirements”).

16 See 18 U.S.C. § 3621(b)(3) (requiring consideration of designation decision include the “characteristics of the prisoner”); 18 U.S.C. § 3624(c)(6)(B) (requiring regulation that includes placement in community corrections “determined on an individual basis”); 28 C.F.R. § 524.11(b) (providing for program reviews with prisoner participation). In addition, BOP would be meeting the statutory directives calling for maximum time in community corrections for certain categories of prisoners. See 18 U.S.C. § 3624(c)(2) (“The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.”); 34 U.S.C. § 60541 (a)(2)(A) (“Incentives for a prisoner who participates in reentry and skill development programs which may, at the discretion of the Director, include [] the maximum period in a community confinement facility”); Fed. Bureau



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considered in making these individualized assessments. BOP currently has the authority to immediately and significantly expand its use of community-based correctional facilities. Congress recognized the value of providing community-based reentry by both doubling the time of community corrections in the Second Chance Act and by expanding potential community corrections beyond one year for certain prisoners eligible for earned time credits in the First Step Act. Full utilization of community corrections to reduce BOP’s population is consistent with Congress’s purpose in enacting those laws.

BOP can exercise its designation authority to address COVID-19 by directing staff to reassess, pursuant to 18 U.S.C. § 3621(b), whether individuals can be immediately transferred to community corrections for the maximum available time or otherwise accelerate transfer to community corrections. BOP should also increase use of the elderly offender pilot program for home confinement, as modified by § 603 of the First Step Act.17 The First Step Act’s expansion of this program reflects the lower recidivism rate for elderly offenders and allows BOP to place vulnerable offenders over 60 years old in home confinement for a larger portion of their sentence. See 18 U.S.C. § 3621(c)(1); 34 U.S.C. § 60541(g)(1)(C).

C. BOP Should Expand The “Extraordinary And Compelling Reasons” In Program Statement 5050.50 To Include Vulnerability To COVID-19.

The First Step Act expanded sentencing courts’ discretion to reduce sentences based on “extraordinary and compelling reasons” under 18 U.S.C. § 3582(c)(1)(A)(i). The COVID-19 pandemic unquestionably constitutes “extraordinary and compelling reasons.” Centers for Disease Control and Prevention has identified persons over the age of 60, as well as persons with diabetes, respiratory problems, and compromised immune systems as facing special danger from COVID-19.18

BOP should respond to this national emergency by amending its policy statement on compassionate release to specifically include consideration of those individuals in prison whose health is most at risk with this pandemic. The United States Sentencing Commission’s examples of extraordinary and compelling reasons in the commentary to the compassionate release guideline recognize BOP’s continued authority to recommend a reduction in sentence based on factors other than those already identified. U.S.S.G. § 1B1.13, comment n.1(D). By informally amending its compassionate release program statement on an emergency basis,19 BOP could directly address the need for judicial

of Prisons, Program Statement 5330.11: Psychology Treatment Programs, § 2.5.15(a)(1)(ii) (incentives for RDAP participation), 19 (2009) (RDAP participants should receive “[c]onsideration for the maximum period of time in a community-based treatment program[.]”).

17 See First Step Act of 2018, § 603, Pub. L. No. 115-391, 132 Stat. 5194, 5238 (2018); see also Fed. Bureau of Prisons, Operations Memorandum: 001-2019, Home Confinement under the First Step Act (Apr. 4, 2019).

18 See Centers of Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19) Are You at High Risk for Severe Illness? (March 12, 2020), https://bit.ly/2vgUt1P.

19 See Fed. Bureau of Prisons, Program Statement 5050.50: Compassionate Release/Reduction in Sentence Procedures for Implementation of 18 U.S.C. §§ 3583 and 4205(g) (2019).



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consideration of reduced sentences for those who are particularly susceptible to COVID-19, with the sentencing judge making the ultimate decision on whether to grant a reduction.

This simple yet significant policy change would make it easier for courts to remove vulnerable inmates from prison while at the same time making prisons safer by lowering the inmate population. This change would be most effective if BOP used the same mechanisms for publicity and assistance in contacting counsel for terminal conditions to identify and notify individuals who are particularly vulnerable to complications from COVID-19. BOP should address compassionate release requests from these individuals on an expedited basis with a presumption in favor of release to supervision in the community. In 2019, BOP took an average of 39 days to determine whether to file a Reduction in Sentence motion under 18 U.S.C. § 3582(c)(1)(A) for terminally ill prisoners and 58 days for debilitated prisoners. For individuals requesting compassionate release for non-medical reasons such as elderly age, or to serveas a caretaker to a child or spouse, the BOP took an average of 171 days.20 That year, 41 people died waiting for action on their request.21 These delays must be cut dramatically if vulnerable prisoners are to be protected during an outbreak. The COVID-19 pandemic creates heightened risks for detained individuals and the greater community that must and can be addressed immediately. We welcome any opportunity to provide you with additional information and support for these critical and time-sensitive next steps.

Sincerely,

s/ David Patton Executive Director, Federal Defenders of New York Co-Chair, Federal Defender Legislative Committee

s/

Jon Sands Federal Public Defender for the District of Arizona Co-Chair, Federal Defender Legislative Committee

s/

Lisa Freeland Federal Public Defender for the Western District of Pennsylvania Chair, Defender Services Advisory Group

20 See Federal Bureau of Prisons, Compassionate Release Program - First Step Act of 2018, Report to Congress 4 (Feb. 13, 2020).

21 See id. at 4-5.

Documents

THE BASICS OF COMMUNITY CORRECTIONS LITIGATION IN THE …€¦ · 2020-03-25 · Susan Russell Francesca Freccero C. Renée Manes Nell Brown Kristina Hellman Fidel Cassino-DuCloux