Please ensure Javascript is enabled for purposes of website accessibility
 
Search

November 4, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG




Quick Facts (Full BOP Stats can be found here) Currently positive-testing inmates: 133 (down from 135) Currently positive-testing staff: 286 (down from 288) Recovered inmates: 42,651 (down from 42,708) Recovered staff: 8,284 (up from 8,273)


Institutions with the largest number of currently positive-testing inmates:

Canaan UPS: 31 (unchanged)

Forrest City Medium FCI: 9 (down from 13)

Brooklyn MDC: 9 (unchanged)

Institutions with the largest number of currently positive-testing staff:

Forrest City Medium FCI: 21 (unchanged)

Forrest City Low FCI: 21 (unchanged)

Devens FMC: 14 (unchanged)

System-wide testing results: Presently, BOP has 133,421 federal inmates in BOP-managed institutions and 14,782 in community-based facilities. Today's stats: Completed tests: 124,532 (up from 124,339) Positive tests: 42,358 (down from 42,413)


Total vaccine doses administered: 241,481 (up from 241,125)

Case Note: Sixth Circuit vacates grant of compassionate release because district court wrongly considered disparity of defendant's sentence with half brother's sentence in state court, and wrongly analogized its role to that of a parole board...


In U.S. v. Bass, No. 21-1094, 2021 WL 5099583 (6th Cir. Nov. 3, 2021) (published) (Rogers, J.) (White, J, dissenting), the court vacates and remands grant of CR because the district court wrongly considered disparity of defendant's sentence with half-brother's sentence in state court, and wrongly analogized its role to that of a parole board, explaining, : "In 2003, John Bass, a local drug kingpin in the state of Michigan, was convicted of murdering a hitman whom Bass had hired to kill Bass's half-brother. Though the Government sought the death penalty, Bass was ultimately sentenced to two concurrent terms of life imprisonment without the possibility of release. In 2020, Bass moved for compassionate release due to COVID-19. The district court granted Bass's request in January 2021 and ordered his immediate release. In March, a divided panel of this court granted the Government's emergency motion to stay the release. In this merits appeal, the Government argues that the district court abused its discretion when it granted Bass's request for immediate release. Because the district court's decision rested upon legal errors, its decision to release Bass constituted an abuse of its discretion. On remand, moreover, the district court must reevaluate the compassionate release request based on current facts and circumstances, which have materially changed. … The Government opposed the motion but conceded that Bass's heightened risk from COVID-19 due to obesity meant that he had satisfied the first eligibility threshold for compassionate release under U.S.S.G. § 1B1.13(1)(A): that there were “extraordinary and compelling reasons” warranting his release. However, the Government argued that Bass was ineligible for compassionate release because he was still a danger to the community under U.S.S.G. § 1B1.13(2), and because the 18 U.S.C. § 3553(a) sentencing factors strongly weighed against granting release. While the motion was pending, one of Bass's surviving victims filed an anonymous statement with the court, writing that Bass “should not be released from jail” because he had “an evil mind to do what he did” and was “a threat to society.” … On January 22, 2021, the district court granted Bass's motion for compassionate release. United States v. Bass, 514 F. Supp. 3d 977, 979 (E.D. Mich. 2021). … The district court determined that Bass was at high risk of severe illness because of the high infection rate at FCI McKean and the risk that “not all prison populations are being prioritized for inoculation.” Next, evaluating the sentencing factors articulated in 18 U.S.C. § 3553(a), the district court found that Bass's record of rehabilitation over twenty-two years of incarceration “significantly mitigate[d]” the Government's concern of Bass's danger to the community and risk of recidivism. Bass, 514 F. Supp. 3d at 983. Pointing to Bass's troubled upbringing, the court concluded that twenty-two years in prison was sufficient punishment for the crimes he had committed. Id. at 983-84. The district court emphasized Bass's life coaching activities and the testimony from family members demonstrating his personal growth, remorse, and commitment to his family. Id. at 984-86. The decision also rested on Bass's ostensibly low risk of recidivism as measured by the BOP's PATTERN score. Id. at 986. The court further stressed that the reduction was appropriate to avoid a sentencing disparity between Bass and his twenty-one codefendants, including his half-brother Cornelius Webb, who was convicted of second-degree murder in state court and sentenced to 25-45 years in prison, but was released on parole after serving over eighteen years. Id. at 988-89. Consequently, the court ordered BOP officials to release Bass immediately, and that upon his release, Bass would serve a three-year term of supervised release, reduced from five years. On January 29, 2021, the Government appealed to this court and sought an emergency stay. On February 5, a motions panel of this court granted the stay in a 2–1 order. United States v. Bass, 843 F. App'x 733, 738 (6th Cir. Feb. 5, 2021) (order). The majority held that a stay was warranted because the Government was likely to succeed on the merits of its arguments that the district court's decision amounted to an abuse of discretion. Id. at 736. The majority reasoned that the district court had engaged in a substantively unreasonable balancing of the § 3553(a) factors by affording “too much weight to certain sentencing factors ... and insufficient weight to others.” … In this merits appeal, the Government contends that the mandatory nature of Bass's sentence to life “without the possibility of release” means that the district court's decision—even if permitted under the First Step Act's compassionate release provisions in 18 U.S.C. § 3582(c)(1)(A)—amounts to a “stunning” deviation from the jury's verdict. … On April 5, 2021, the Government submitted a letter noting that on April 2, 2021, Bass was offered the COVID-19 vaccine but refused it. … The district court's decision constituted an abuse of discretion because, at the very least, its analysis of the compassionate release factors rested upon two errors of law. … First, the district court invoked the wrong legal standard in its evaluation of 18 U.S.C. § 3553(a)(6), the sentencing factor that concerns “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” The district court noted that, of Bass's twenty-one codefendants, none was sentenced to life in prison like Bass, and the murder charges against nine of the codefendants were dismissed entirely. … But the district court applied the wrong legal standard in its analysis of this sentencing factor. “We have explained ... that this factor concerns national disparities between defendants with similar criminal histories convicted of similar criminal conduct—not disparities between codefendants.” United States v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008). … Although district courts may consider disparities among codefendants, the “only disparities relevant ... are those among federal defendants on a national scale.” United States v. Boucher, 937 F.3d 702, 712 (6th Cir. 2019) (emphasis added). This means that the district court improperly compared Bass's federal sentence to Webb's state court sentence. Comparisons to state sentences “ ‘enhance, rather than diminish, disparities’ among similarly situated federal defendants” because “state courts may sentence defendants according to their own criteria without reference to the Guidelines.” … In taking this approach, we joined the vast majority of other circuits that have similarly held that federal sentences cannot be compared to state sentences when evaluating § 3553(a)(6), reasoning that otherwise all federal sentences would become dependent upon the law of the state within which the federal court sits. … Second, the district court applied the wrong legal framework to the compassionate release analysis by analogizing its role to that of a parole board. At the October 2020 hearing on Bass's motion, the district court stated that “for purposes of this hearing, this hearing is more like the trial Judge, that is me, sitting as a Parole Board.” Adopting this “parole” view of the compassionate release statute infected the court's analysis with legal error. Although it recognized that there is no parole board in the federal system, the court approached this case with the view that, by passing the compassionate release statute, Congress had simply transferred the discretionary power to grant parole from the Parole Commission to district courts. That is incorrect. The federal parole system was “based on concepts of the offender's possible, indeed probable, rehabilitation, a view that it was realistic to attempt to rehabilitate the inmate and thereby to minimize the risk that he would resume criminal activity upon his return to society.” Mistretta v. United States, 488 U.S. 361, 363, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). In light of the resulting sentencing disparities across federal courts, this emphasis on rehabilitation was questioned and later discarded by Congress. … That the new compassionate release procedure was developed after parole was abolished does not mean that Congress intended to reinstitute the system of parole when it modified the compassionate release statute in the First Step Act. … Furthermore, the Government correctly notes that analogizing the district court's role to that of a parole board ignores the key differences between parole and compassionate release. In contrast under the compassionate release statute, although the district court may consider a defendant's rehabilitation efforts, rehabilitation cannot alone qualify as an “extraordinary or compelling” reason warranting release. … By analogizing its role to that of a parole board, the district court framed the legal question in a manner that Congress had expressly condemned when it shifted away from the rehabilitation focus of criminal sentencing. The court erred by conflating the old parole system with the new compassionate release framework established under the First Step Act. A district court “abuse[s] its discretion by incorrectly framing the legal standard.” United States v. Gissantaner, 990 F.3d 457, 468 (6th Cir. 2021). … While we do not rely solely on such a reweighing on this appeal, the legal errors named above being by themselves sufficient for a remand, we are concerned that the heinous nature of the crimes committed by Bass—so heinous that prison without the possibility of release was imposed as an alternative to capital punishment—may not be substantively outweighed by Bass's rehabilitation and other mitigating factors. … The district court discounted Bass's culpability for his actions, finding them “sadly unsurprising” in light of his “abject poverty” and the “household trauma” he suffered while growing up. Bass, 514 F. Supp. 3d at 983. Though the district court acted within its discretion to consider Bass's childhood trauma, these same facts were known at the time of Bass's original sentencing, but did not prevent the jury and district court from concluding then that life imprisonment without the possibility of release was the appropriate punishment for Bass's crimes. … This conclusion does not fit the facts of Bass's case. Bass's crimes were so severe that the Government sought the death penalty, and Bass's own defense counsel assured the jury that Bass would never leave prison in an effort to avoid imposition of the death penalty. Bass, 460 F.3d at 834. The district court justified Bass's release by repeatedly emphasizing Bass's commitment to rehabilitation and education. Bass, 514 F. Supp. 3d at 984-88. But the district court failed to square this lengthy rehabilitation analysis with the fact that Bass's original sentence was life imprisonment without the possibility of release. This sentence would have ensured that the fifty-two-year-old Bass would remain in prison for the rest of his life, which could conceivably extend for several decades. —— DISSENT (White, J.): "I would not have granted Bass's motion for compassionate release, but under the compassionate-release jurisprudence this court has developed over the past year and a half or so, our disagreement with a district court's exercise of its discretion is expressly excluded as a ground for reversal. We require district courts to provide only the most minimal explanation, see, e.g., United States v. Quintanilla Navarro, 986 F.3d 668, 673 (6th Cir. 2021) (affirming a district court's single-sentence order), and we must defer to their judgment in weighing the § 3553(a) factors and not substitute our own, see United States v. Ruffin, 978 F.3d 1000, 1005 (6th Cir. 2020); United States v. Hogg, 858 F. App'x 816, 818 (6th Cir. 2021); United States v. Keefer, 832 F. App'x 359, 362–65 (6th Cir. 2020). … The majority additionally concludes that the district court “applied the wrong legal framework to the compassionate release analysis by analogizing its role to that of a parole board.” Majority Op. at ––––. I agree that the analogy is inapt, but the district court did not adopt that analogy as its governing standard. The parole-board reference was an isolated comment made at the hearing on Bass's motion. There was no such statement in the district court's twenty-six-page order granting relief. Further, as the majority acknowledges, immediately after the comment, the district court observed that there is no parole board in the federal system and recognized that its task (after addressing whether there were extraordinary and compelling reasons supporting compassionate release) was to focus on the § 3553(a) factors. … Accordingly, the district court did not apply the wrong legal framework; it simply made an inapt analogy in passing before proceeding to apply the correct legal framework. … Not only is this discussion contrary to our established framework for reviewing compassion-release rulings, cf. Jones, 980 F.3d at 1112–14, it also “infringes on the discretion our recent cases give to district courts ... [and] risks enshrining a double standard unduly favoring the Government's opposition to compassionate release.” United States v. Bass, 843 F. App'x 733, 740 (6th Cir. 2021) (Stranch, J., dissenting). Its reasoning is faulty too. Although the majority does not question that prisoners subject to life sentences for murder are eligible for relief under 18 U.S.C. § 3582(c)(1)(A), it repeatedly expresses its discomfort with the district court's conclusion that the heinous nature of Bass's crimes could be outweighed by his rehabilitation and other mitigating factors. … But the district court repeatedly recognized the “very, very serious and dangerous” nature of Bass's crimes, that he did “awful” things, that his behavior was “horrendous,” and that when sentenced, his record supported the life sentence. … Thus, I do not agree that the district court discounted Bass's criminal responsibility. As I said at the outset, I would not have granted this motion. However, the district court adequately explained its decision and did not abuse its discretion in concluding otherwise. We must apply the same rules on review without regard to whether the government or the inmate is aggrieved by the district court's decision. “Our trust in the discretion of the district court must be consistent regardless of whether the district court grants or denies a [compassionate-release motion].” Bass, 843 Fed. App'x at 740.”)


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no new COVID-19 fatalities. Total inmate COVID-related deaths remain at 266. Ten of the inmate fatalities died while on home confinement. Staff deaths remain at 7.

24 views0 comments