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COMPASSIONATE RELEASE AND SEC 404 REFUSALS CANNOT BE ROTATED
Since inmates were permitted to file motions for remission under 18 USC § 3582(c)(1)(A)(i) – generally known as “compassionate release ” – and requests pursuant to the Fair Sentences Act 2010 under section 404 of the act of the first stepwe’ve seen denials from district courts that seemed quite sketchy and “cookie-cutter”.
Certainly the courts have had to deal with thousands of such motions, and no doubt the judges detail the examination and preparation of their most junior clerks. But I remember a surgery I had a few years ago. The surgeon dismissed my concerns with a slight “don’t worry – yours will be my 1,500th of them.” I replied, “Maybe so, but it will be my first.”
Compassionate release and § 404 motions are like that. Joe Prisoner’s motion may be the hundredth the court has decided, but for Joe it is the first.
Rulings from the 4th and 7th Circuits a week ago starkly reminded district judges that denials of such motions should give due consideration to the plaintiff’s arguments and evidence — not necessarily to accept them — but at least to note what the prisoner said and to explain why this argument is insufficient to prevail.
Jon Singleton, having already served 14 years for a meth conspiracy, has requested a compassionate release because of COVID. Jon’s district court found he did not show an extraordinary and compelling reason for release as he twice refused the vaccine. The idea is that anyone who refuses the vaccine can hardly genuinely worry about the effects of COVID-19. If that wasn’t enough, the district court said, the seriousness of Jon’s offense a decade and a half ago made the original sentence correct.
On appeal, Jon complained that the district court had erred. He had only refused the vaccine once, and that time he had done so only because he had a history of allergic reactions to vaccines and “was denied the opportunity to consult a professional of health before vaccination”.
It wasn’t a new complaint: Dr. Homer Venters, a court-appointed epidemiologist who inspected FCI Lompoc for an ACLU class action lawsuit against the BOP over COVID, lambasted the BOP over year for the “take it or take a hike” approach to administering the COVID vax. Venters told District Court for the Central District of California that he was ‘extremely concerned’ about low inmate vaccination rates, which he attributed to prison staff not responding to ‘very valid and predictable concerns’. inmates about the effects the vaccine might have on their underlying health. conditions. Rather than answer inmates’ questions, Venters said, prison staff dismissively told inmates to “take the vaccine or sign a refusal form.”
Two weeks ago, the 4th Circuit sided with Jon. “Initially,” the court said, “the district court erroneously stated that Singleton twice refused the vaccine; the record reveals that he only refused the vaccine once. Additionally, the district court did not consider Singleton’s argument that he had refused the vaccine because he had a history of severe allergic reaction to the flu shot and other medications and had been denied the opportunity to consult a healthcare professional prior to vaccination. Because the district court erred in fact and failed to consider Singleton’s individual circumstances, we conclude that the court abused its discretion…”
Jon also complained that the district court failed to consider (1) his rehabilitation evidence; (2) his argument that “time served” would constitute just punishment; (3) its low recidivism score; and (4) that due to a change in state law, one of his prior drug-related crimes was reduced to a misdemeanor, which would have reduced his criminal history category. The circuit agreed: “Given the time Singleton spent in jail before filing his motion and the fact that the district court did not recognize any of his many arguments based on post-conviction conduct and circumstances, we conclude that the District Court abused its discretion in considering factors § 3553.”
Jamell Newbern was convicted of distributing crack cocaine in 2005. Because he had two prior qualifying convictions, he was sentenced as a guidelines career offender. At the time, the district judge said he would have given Jamell the same sentence even if he had not been a career offender.
The district judge had long since retired. Since 2005, one of Jamell’s two prior convictions (reckless discharge of a firearm) was ruled not to be a crime of violence. But the new judge handling Jamell’s case reimposed the original 300-month sentence, adopting the retired judge’s position that 300 months was warranted whether or not Jamell was a career offender. The new judge didn’t even address Jamell’s post-conviction case.
Last week, the 7th Circuit agreed that the new judge’s adoption of the previous judge’s ruling that Jamell’s conduct warranted a 300-month sentence, regardless of his status as a career offender.
“But,” the 7th said, “we see it differently with respect to the district court’s inability to respond to Newburn’s argument for relief based on his good behavior in prison. Design expressly established that conduct in prison – good or bad – can be properly considered in a act of the first step movement. Newburn significantly highlighted his positive record in his motion. Newman was by no means making a throwaway point. On the contrary, he devoted about an entire page of his motion to highlighting his clean disciplinary record, his prison employment, the completion of a drug education course, and the achievement of a GED. Concepcion v. United States does not require a detailed explanation in response to these considerations, but we cannot be sure that the district court considered Newburn’s arguments when it offered no explanation.
The circuit said that in light of Design“It is clear that the district court’s failure to respond to Newburn’s good conduct argument amounts to a procedural error.”
United States vs. Singleton, Case No. 21-6798, 2022 USApp. LEXIS 27943 (4th Cir., Oct. 6, 2022)
Santa Barbara Independent, Doctor ‘extremely concerned’ about low vaccination rate among Lompoc prisoners (May 20, 2021)
United States vs. Newbern, Case No. 22-1244, 2022 USApp. LEXIS 28348 (7th Cir., Oct. 12, 2022)
– Thomas L. Racine