Case News, Staff News, DREAM News
& COVID-19 Information for Families of Incarcerated Individuals
In several cases this month, judges have recognized the difficulty of being in custody during the coronavirus pandemic and given clients time-served sentences for supervised release violations despite government recommendations for more time. Judges recognize that reducing the prison population is an important part of helping to control the spread of coronavirus.
The passage of the First Step Act in December 2018 expanded compassionate release under 18 U.S.C. § 3582(c)(1), allowing our clients to file compassionate release motions to reduce sentences based on “extraordinary and compelling reasons” directly with their sentencing courts. This past month, with continued advocacy by the whole office, the district court has joined the majority of courts across the nation that recognize the COVID-19 pandemic should inform the requisite analysis – either in terms of whether extraordinary and compelling reasons exist because of the heightened risk to the most vulnerable federal prisoners to COVID-19 (the elderly and chronically ill) or, if the person qualifies, whether relief is warranted based on the § 3553(a) factors. This past month, four clients were granted relief with the COVID-19 pandemic in mind.
-70-year-old Charles Claggett was granted compassionate from a 370-month sentence imposed in the late 1990s. The warden at his prison had supported release but national BOP rejected his request in February of this year. With the onset of COVID 19 pandemic a joint defense/government motion for release was granted by Chief Judge Ricardo S. Martinez. Thank you to all involved in Mr. Claggett’s case!
-Seattle AFDs Vanessa Pai-Thompson, Andy Kennedy, Vicki Lai, and Ann Wagner, with assistance from Seattle paralegals Barbara Hughes and Suzie Strait, secured compassionate release for a client who was serving an excessive 30-year sentence for a drug offense. After years of fighting to win release for their client through various efforts the team is thrilled that he is finally out of prison and headed home to his family.
-Seattle AFD Jennifer Wellman and Seattle Paralegal Barbara Hughes, with the help and input from many others, including Seattle AFDs Andy Kennedy, Dennis Carroll, Vicki Lai, Tacoma Research & Writing attorney, Alan Zarky and Seattle Paralegal Patricia Stordeur - won two additional compassionate release motions. In United States v. Cosgrove, 15-230RSM, Mr. Cosgrove, a 70-year-old man with multiple chronic medical conditions, had served more than half the sentence imposed by the time his motion for compassionate relief came before the district court. Although many of his medical conditions were known at the time of sentencing, not all conditions were and despite the best of intentions, his health continued to deteriorate at FCI Terminal Island. He sought relief given his age, and chronic, debilitating medical conditions, which substantially diminished his ability to provide self-care in the institution, as well as his heightened risk to COVID-19. The court agreed that Mr. Cosgrove’s age (70 years) and medical conditions were “extraordinary and compelling.” In granting relief, the court did not discount the seriousness of Mr. Cosgrove’s underlying offense or the appropriateness of the original sentence. However, the conditions at FCI Terminal Island changed rapidly. At the time of the Government’s April 10, 2020 Response, no inmates or staff had tested positive. Four days later, the BOP website reported eight individuals – six inmates and two staff members – tested positive at the facility. The Court found “that the spread of the virus at Terminal Island, combined with Mr. Cosgrove’s age and specific underlying conditions, together present far more than an “elevated risk” or “mere possibility” of serious illness. Cf. Riley v. United States, No. C19-1522 JLR, 2020 WL 1819838, at *7 (W.D. Wash. Apr. 10, 2020). Rather, they put Mr. Cosgrove at significant risk for even more severe and life-threatening illness if he is exposed to COVID-19 during his confinement.” Indeed, today, 443 inmates – approximately 40% of the inmate population at FCI Terminal Island -- have tested positive at Terminal Island but fortunately, Mr. Cosgrove is not among them – a fate no one intended at sentencing.
In United States v. McPherson, No. CR94-5708RJB, 2020 WL 1862596 (W.D. Wash. Apr. 14, 2020), Mr. McPherson, a 57-year-old man with multiple chronic medical conditions including chronic obstructive pulmonary disease and asthma, sought compassion because he had served “15 years beyond what is now deemed a fair penalty” but dictated in 1994 by draconian § 924(c) stacking laws no longer valid by virtue of the First Step Act. In the alternative, Mr. McPherson argued that a combination of factors warranted relief including, the uncontested fact that if sentenced today he would not be subjected to such a long term of imprisonment, his exemplary institutional history and his age and chronic medical conditions, both of which make him particularly vulnerable when the coronavirus outbreak inevitably makes its way into the Bureau of Prisons. In granting relief, the court rejected the government’s arguments limiting its discretion to determine what qualifies as extraordinary and compelling, after appropriate analysis. It found Mr. McPherson’s story extraordinary and compelling, noting, “It is extraordinary that a civilized society can allow this to happen to someone who, by all accounts, has long since learned his lesson." The court also rejected the government’s request that he remain in custody another 14 days for quarantine. So after 26 years in prison, Mr. McPherson, a danger to no one and a kind, humble man who served his time responsibly, by seeking an education, making amends for his past mistakes and earning a job, was released to a hotel where he spent the night before hopping in a taxi to a bus station for the long trip home to his mother’s arms.
Two DREAM Court participants graduated in April. One was charged as part of a large, multi-defendant drug conspiracy. She pled guilty to a charge that carries a five-year mandatory minimum sentence. This graduate lives with her children and grandchildren and worked long hours, inside and outside of her home, throughout the course of the DREAM program. She is saving money to start her
own food truck business. The second graduate pled guilty to one count of wire fraud. Her addiction to drugs left her so physically ill that she had to be carried out of court to the hospital after her release from custody. She hopes to pursue a career in criminal justice. Both graduates worked hard throughout the program, to better understand their addictions, to repair relationships, and to work towards the life that they want for themselves and their families.
Before COVID-19 shut down all gatherings, Tacoma AFD Heather Carroll attended the annual Clark County Bar Association Barrister’s Ball. Carroll introduced Sean Downs for the Kenneth Weber award, honoring Sean’s service to the community and the legal profession and outstanding achievement in the practice of law. Sean has an indigent defense practice in Clark County, is the president of the Criminal Defense Attorneys of Clark County, and is on the Washington State appellate panel for indigent appeals. Sean was also recently accepted into the CJA mentorship program here in the western district. Sean is a fantastic attorney, and we look forward to seeing him around the Tacoma Courthouse (whenever we are in the Tacoma courthouse again…)
COVID-19 Information for Families of Incarcerated Individuals:
COVID-19 Information for Families of Incarcerated Individuals
We know that this is a scary time to have a family member or friend in Bureau of Prisons’ custody. There’s a lot we don’t know about what’s going on inside the BOP right now, but the Federal Public Defender’s Office remains dedicated to our clients, their families, and the community during these difficult and trying times. And here is what we do know:
Information for Federal Public Defender Clients with Pending Cases
The Federal Public Defender’s Office remains operational during the pandemic. Our physical offices are closed to the public, but our phones are open and all staff are working from home. We are doing our part to stem the spread of COVID-19 by working remotely. Our staff also continue to speak with our detained clients, appear in court by video conference, and represent our clients’ interests during the pandemic
If you have questions about your case, your loved one’s case, or getting your loved one released on bond, please email or call the attorney assigned to the case. If you are unsure of the attorney’s phone number, please call our office at 206.553.1100 (Seattle) or 253.593.6710 (Tacoma). Our receptionists will transfer your call directly to the attorney.
Communicating with your loved one
We understand that it is tough to get information from people in BOP custody right now. All facilities have suspended in person visits. The BOP has indicated this rule will remain in place until at least May 18th and it seems likely that date will be extended. If you haven’t heard from your loved one in a while, it may be because some facilities have announced that they are limiting phone calls and email as they try to manage social distancing. Even those facilities that have severely limited access to phones and emails tell us that they are still processing mail, so you might want to try that option as well.
The status of the BOP’s efforts to stop COVID-19
The BOP is posting information on its website each day about its efforts to stop the spread of COVID-19 and the number of cases in each facility. We also highly recommend the Marshall Project’s reporting on the status of the BOP if you want more information. There is also more information here
Efforts to release sentenced individuals from BOP custody
We are trying to get people released from custody via a variety of avenues, and depending on the particular facts in each person’s case. Here are some of the ways in which we are trying to address the need to reduce the inmate population to protect our clients and their families:
Home confinement: Attorney General Barr announced last month that he would expand use of “home confinement”–meaning, rather than serving out a sentence in prison, the person would serve it at home. Home confinement is a form of relief the BOP can grant on their own. It doesn’t involve the courts at all.
The BOP issued a memo on April 22nd saying that it is reviewing these criteria in deciding who to release to home confinement:
- a clean discipline history for the last 12 months
- a verifiable release plan.
- current offense and prior convictions cannot “include violence, a sex offense, or [be] terrorism related”
- priority is being given to those in low and minimum security facilities
- priority is being given to those with a minimum PATTERN score (PATTERN is a risk assessment tool.)
- review for age and vulnerability under the CDC’s guidelines
- priority is being given to those who have served 50% or more of their sentence, or who have 18 months left on their sentence and have served 25% or more.
We don’t know if this is the final criteria or not, but it’s the last statement BOP made on this topic. The BOP’s memo makes clear that individuals do not need to apply for home confinement. The BOP is releasing little information about how it is processing these home confinement requests, but what we do know suggests that they are screening everyone to decide whether they fit the criteria. So even if your loved one can’t submit a request, they should be considered.
So far, the BOP has released only a small number of people on home confinement. If you want to keep up to date on the home confinement issue, the Marshall Project has done a good job of reporting on this, including this article.
Compassionate Release: Compassionate release is available post-sentencing and asks the sentencing judge to change the sentence to time served for “extraordinary and compelling reasons.” Compassionate release is not easy to get, though it is an important tool we are using to try to get the most vulnerable (elderly and medically at risk) people out of the BOP. To get compassionate release, a person must first submit a request to the warden. The request should include information about the individual’s medical conditions, personal circumstances, and explain where he or she would live if released from custody. Thirty days after the request was submitted to the warden, a person can file their request with the district court that sentenced them.
A person can file their request pro se, which means he/she does not need to have an attorney to file it for him/her. The person can also have the assistance of counsel. Our attorneys are filing a number of Compassionate Release motions for former clients. We are prioritizing those who we think are most likely to be granted compassionate release: based on age, health conditions, what we know about the facility where they are, the percentage of sentence served, and anything else we know about their case. But we welcome all inquiries regarding this option for relief.
We can only be appointed to help people who were sentenced in the Western District of Washington in the Seattle or Tacoma federal courthouses. However, if you or your loved one was sentenced out of this district but is incarcerated at the FDC SeaTac, we can help direct you to the attorney in the correct district for assistance.
If you want our office to look at your loved one’s case, please send the name and any other information you have in your possession, including, if you have it, register number, case number, medical conditions, whether the person has already submitted a request to the warden, and where the person would live if released from prison. Also, include your name and all of your contact information in that email. You can send that information to WAW_FPDinmateMessages@fd.org.