PBS: Over 70 percent of tested inmates in federal prisons have COVID-19

The response from the federal Bureau of Prisons to the growing COVID-19 crisis in prisons has raised alarm among advocates and lawmakers about whether the agency is doing enough to ensure the safety of the nearly 150,000 inmates serving time in federal facilities, reported PBS.

And even though officials have stressed infection and death rates inside prisons are lower compared with outside, new figures provided by the Bureau of Prisons show that out of 2,700 tests systemwide, nearly 2,000 have come back positive, strongly suggesting there are far more COVID-19 cases left uncovered.

At the same time, the Bureau of Prisons communication policies are leaving families in the dark about their loved ones’ potentially life-threatening condition.

The 59-year-old Fleming had been serving a 20-year sentence on a drug conspiracy charge. The Bureau of Prisons never notified Fleming’s family that he was taken to a hospital or when his condition declined.

“Not having the opportunity to say goodbye — that would’ve been invaluable,” the younger Fleming said. “We will never have that chance.”

Under Bureau of Prisons policy, the agency is supposed to “promptly” notify the family of inmates who have serious illnesses. But the agency, which confirmed the family wasn’t initially notified, has “discretion when making notifications,” according to a spokeswoman.
Prisons officials say they are doing the best they can under dire circumstances and following guidelines set by the Centers for Disease Control and Prevention.

“We are doing the right things to manage our population and to keep them as safe as possible at this time when we can’t provide that assurance to our average American free public that everyone is safe and secure right now with this pandemic,” said Kathy Hawk Sawyer, a senior adviser at the Bureau of Prisons who previously ran the agency twice.

As of Wednesday, 30 inmates, including Fleming, had died of the coronavirus at federal correctional facilities since late March. About 600 have recovered.

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PA business owners ask SCOTUS to overturn governor’s order closing 'non-life-sustaining' businesses

A group of Pennsylvania businesses petitioned the US Supreme Court Monday in their lawsuit seeking to overturn Governor Tom Wolf’s March 19 executive order closing “non-life-sustaining” business in response to the COVID-19 pandemic, reported Jurist.

Last Friday the Pennsylvania Supreme Court denied their request to stay the order, finding that the group had “not established any basis for relief based upon their constitutional challenges.” Monday’s filing asks the Supreme Court to weigh in and rule differently, because, the petitioners claim, the economic damage of the shut-down deprives them of property without due process.

The group of petitioners includes Friends of Danny DeVito, a committee boosting the election of a candidate for the state House of Representatives (who shares the name of the famous actor), a real estate agent, a public golf course and restaurant, a laundry company, and a company that harvests timber on their land. Since the filing of their original petition in Pennsylvania, the laundry company and the timber company have been granted waivers under the executive order and moved into the “life-sustaining” category still allowed to operate. All five of the organizations remain parties to the Supreme Court petition, however, and maintain that leaving the executive order in place “constitutes severe, immediate, and ongoing deprivation of their rights under the U.S. Constitution.”

The thrust of the petitioners’ complaint is that the “financial distress” caused by the mandatory pandemic response constitutes “the complete destruction of the property rights of vast numbers of businesses.” The Pennsylvania Supreme Court, however, held that there was not a taking of property. The governor’s executive order, the court said, “results in only a temporary loss of the use of the Petitioners’ business premises, and the Governor’s reason for imposing said restrictions on the use of their property, namely to protect the lives and health of millions of Pennsylvania citizens, undoubtedly constitutes a classic example of the use of the police power to protect the lives, health, morals, comfort, and general welfare of the people.” The Pennsylvania court pointed to a 2002 case in the US Supreme Court when a group of developers around Lake Tahoe were prevented from working there for more than two years while the regional planning authority developed a comprehensive land use plan. The Supreme Court refused to find that a regulatory taking because of the temporary nature of the measure. For the COVID-19 emergency, the Pennsylvania Supreme Court noted, the executive order must expire at 90 days; while it can be renewed, the legislature may also step in to end the disaster declaration.

The Pennsylvania petition will head to Justice Samuel Alito, who manages requests from that part of the country and will have the decision whether to forward the petition to the entire court.

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Barr will sue states for "excessive" restrictions

Attorney General William Barr ordered federal prosecutors to “be on the lookout” for coronavirus-related measures from states and localities that could infringe upon Americans’ constitutional rights and civil liberties, reported the Huffington Post. The report doesn't mention any effort by Barr or the DOJ to crack down on businesses or individuals who refuse to comply with"reasonable" restrictions.

In a memo to the head of the Justice Department’s Civil Rights Division as well as all 93 U.S. attorneys across the country, Barr indicated that the Trump administration may take legal action against state and local governments that impose excessive restrictions on citizens because of the COVID-19 pandemic.

Will the DOJ use science to determine what is excessive or will they use the the Presidents's anecdotal, dangerous, off-the-wall bantering as a basis for legal action? 

“If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court,” Barr wrote.

“Many policies that would be unthinkable in regular time have become commonplace in recent weeks, and we do not want to unduly interfere with the important efforts of state and local officials to protect the public,” Barr wrote. “But the Constitution is not suspended in times of crisis. We must therefore be vigilant to ensure its protections are preserved, at the same time the public is protected.”

What ever happened to the longstanding support for states' rights by GOP conservatives?

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Pew: Policy Reforms Can Strengthen Community Supervision

A report by The Pew Charitable Trusts details the challenges facing parole and probation supervision systems around the country and outlines specific policy changes that states can make to achieve improved outcomes. Since 1980, the nation’s community supervision population has ballooned by almost 240 percent. As of 2016, 1 in 55 U.S. adults (nearly 4.5 million people) are on probation or parole, more than twice the number incarcerated in state and federal prisons and local jails. Historically, probation and parole were intended to provide a less punitive, more constructive alternative to incarceration, but a growing body of evidence suggests that a frequent emphasis on surveillance and monitoring of people under supervision rather than on promoting their success, along with the resource demands of ever-larger caseloads, has transformed community supervision into a primary driver of incarceration. This shift has produced an array of troubling consequences, not only for individuals on probation and parole but for taxpayers and communities as well.

To address these problems, some supervision agencies have begun to embrace evidence-based practices that have been shown to improve outcomes and reduce recidivism. These include the use of research-based assessment tools to identify an individual’s level of risk for reoffending, graduated sanctions, such as increased reporting or short-term incarceration, to respond to violations of supervision rules, and incentives to encourage rule compliance. As a result of these and other policy changes, 37 states have experienced simultaneous reductions in crime and community supervision rates.

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SCOTUS rules juries in criminal trials must be unanimous

The Supreme Court ruled that juries in criminal trials must be unanimous to convict a defendant, the Associated Press reports.

The decision settled a quirk of constitutional law that had allowed divided jury votes to result in convictions in Louisiana and Oregon.

The court’s ruling overturned the conviction of Evangelisto Ramos. He is serving a life sentence in Louisiana for killing a woman after a jury voted 10-2 to convict him in 2016. Oregon is the only other state that allows non-unanimous convictions for some crimes.

Louisiana voters changed the law for crimes committed beginning in 2019, requiring unanimous verdicts.

Now the same rules apply in all 50 states and in the federal courts: Juries must vote unanimously for a conviction.

The outcome will affect defendants who are still appealing their convictions. For defendants whose cases are final, it will take another round of lawsuits to determine whether the high court ruling applies to them. 

The opinion was issued by Justice Neil Gorsuch, who reviewed the racist origins of non-unanimous jury rules, quoting a Louisiana constitutional convention statement that 10-to-2 verdicts were to be permitted in order “to ensure that African-American juror service would be meaningless.”

Courts in both states “have frankly acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules,” Gorsuch said.

In a concurring opinion, Justice Sonia Sotomayor said, “Louisiana’s and Oregon’s laws are fully—and rightly—relegated to the dustbin of history.”

In a dissent, Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Elena Kagan, cited a 1972 high court decision in a case called Apodaca that the Constitution’s Sixth Amendment permits non-unanimous verdicts in state criminal trials.

Alito said, “In all the years since then, no Justice has even hinted that Apodaca should be reconsidered. Understandably thinking that Apodaca was good law, the state courts in Louisiana and Oregon have tried thousands of cases under rules that permit such verdicts. But today, the Court does away with Apodaca and, in so doing, imposes a potentially crushing burden on the courts and criminal justice systems of those States.” This summary was prepared by The Crime Report.

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GateHouse: Pandemic exposes country fraught with economic disparity

Matthew T. Mangino

GateHouse Media

April 24, 2020

Every day Andrew Cuomo, the Governor of New York, is a fixture on cable television providing detailed updates on the impact of COVID-19 on his state and more particularly New York City. His updates are chock-full of scientific data, insightful opinions and personal reflections.

The pandemic he talks about every day has had an enormous impact on every man, woman and child in this country and around the world. The pain and sorrow for those personally touched by the virus is beyond comprehension.

Americans are agonizingly coming to terms with the breadth of the destruction caused by this health emergency. The impact on workers and businesses is dire. As social distancing regulations have tightened, people are being forced to choose between the risk of bringing the virus into their homes or going without food, medication or other basic necessities.

The virus has revealed a stark divide in this country. Sure, we know about the ideological divide - “Keep America Great” versus “Never Trump;” right versus left; conservative versus progressive - but the split is even more profound.

There is a class divide in the country - the have and have nots. The divide is not new, but the pandemic has brought it into clear focus. More than 35 years ago another New York Governor named Cuomo gave a speech at the Democratic National Convention in San Francisco. Governor Mario Cuomo said, in reference to President Ronald Reagan’s remark that the United States is a “Shining City on a Hill,” - “Mr. President you ought to know that this nation is more about a ‘Tale of Two Cities’ that it is just a ‘Shining City on a Hill.’”

People wait for hours at food banks across the country to get food for their families. Men and women living from paycheck to paycheck had jobs only weeks ago and when the money stopped, so did the food. A woman wearing a protective mask holding her children’s hands told a reporter on the nightly news, “I’m a waitress, I don’t have food for my kids.”

Many parents who lost their jobs as a result of the pandemic have, in turn, lost their medical insurance. So now the medicine they, or their children, need is unaffordable.

Schools are closed to protect our children, but many of those parents who must work are forced to leave their children without supervision. They can’t afford childcare, even if they could find it. They can’t ask for help from elderly or infirm friends or relatives because of their increased vulnerability to the virus.

Today, poverty puts people at a higher risk of exposure to COVID 19 - whether it’s working in a service industry with inadequate protection; ongoing health problems because of a lifetime without adequate medical care; a lack of medical insurance; or being in jail - poverty is a factor.

Imagine being accused of a crime during a pandemic. One month ago, I wrote, “There are 3,163 local jails across the country. According to the Prison Policy Institute, within those walls are 612,000 inmates, of which 462,000 have not been convicted of a crime.”

If a defendant has money for bail, no matter the underlying charges or the level of risk, he or she is free while awaiting trial. If a person accused of a crime is without money he or she sits in jail until trial. But for poverty one person is locked up and the other is free.

The Marion Correctional Institution is the site of the largest coronavirus outbreak in Ohio. According to the Marion Star, at least 78%, or 1,950, inmates at Marion have tested positive for COVID-19. A total of 154 staff members have been infected, and a guard and inmate have died.

When it comes to the have and have nots, I’m reminded of something else Gov. Mario Cuomo said on that summer evening in San Francisco, “It’s the same shining city for those relative few who are lucky enough to live in its good neighborhoods. But for the people who are excluded - but for the people who are locked out - all they can do is stare from a distance at that city’s glimmering towers.”

When Gov. Cuomo delivered his keynote address, 36 years ago, he wasn’t thinking about America in the midst of a pandemic, but his words are befitting these troubling and frightening times.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Some sheriffs refuse to enforce stay-at-home orders

As protests pop up around the country in revolt of state stay-at-home orders during the coronavirus pandemic, more sheriffs are choosing not to enforce the government mandates, reported the Miami Herald.

Franklin County Sheriff J.D. Raymond in Washington said he refuses to enforce the stay-at-home order issued by Gov. Jay Inslee or any other guidelines “that infringe on your constitutional rights,” according to the Associated Press.

The sheriff told his constituents in a letter that while he believes the pandemic is legitimate, he feels it “needs to be dealt with appropriately,” AP reported.

Raymond said that he thinks businesses and churches should be allowed to reopen if they enforce strict social distancing practices, according to AP.

 “This intrudes on our right to life, liberty and the pursuit of happiness; and neither I nor my office will enforce any arrests or fines regarding the operation of privately-owned businesses,” Raymond said, according to AP.

Raymond joins sheriffs from Wisconsin and Michigan who are choosing not to enforce the stay-at-home orders, according to the Milwaukee Journal Sentinel and Fox News.

“I took an oath to uphold the constitutional rights of our citizens and I cannot in good faith participate in the destruction of Racine County businesses or interfere in the freedoms granted to all of us by our Constitution,” Racine County, Wisconsin Sheriff Christopher Schmaling said in a statement obtained by the Journal Sentinel.

Four different county sheriffs in Michigan also announced their decision to defy the stay-at-home order issued by Gov. Gretchen Whitmer in a news release last week, Fox News reported.

“While we understand her desire to protect the public, we question some restrictions that she has imposed as overstepping her executive authority,” Leelanau County Sheriff Mike Borkovich, Benzie County Sheriff Ted Schendel, Manistee County Sheriff Ken Falk and Mason County Sheriff Kim Cole said, according to Fox.

Michigan has almost 32,000 confirmed coronavirus cases and at least 2,700 deaths, according to michigan.gov.

The short answer is yes, according to NPR. Elected sheriffs have a unique amount of discretion to pick and choose which laws they will enforce, NPR reported.

Many sheriffs chose not to enforce certain gun laws in 2019, including in Washington state, according to NPR. They cited constitutional infringements then as well, NPR reported.

But constitutional scholars argue that in the context of a national pandemic, stay-at-home orders and social distancing practices do not infringe on your rights, McClatchy reported.

“You don’t have a right to assemble against the backdrop of known public health risk,” James G. Hodge, the director of the Center for Public Health Law and Policy at Arizona State University, told McClatchy. “Some of those basic liberties are going to be truncated for a brief period. Most Americans understand the need for that.”

Officials usually have to go through legal processes to close an establishment or limit public gatherings, McClatchy reported. But under a state of emergency, everything is expedited, according to Hodge.

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Barr will take action against states that continue shutdown to fight COVID-19

The US Department of Justice may take legal action against states that continue to impose strict measures to prevent the spread of the COVID-19. Attorney General William Barr said this on the same day that more than 2,500 Americans died from COVID-19, reported Business Insider.

In an interview with conservative radio host Hugh Hewitt, Barr conceded that tough measures, such as shelter-in-place orders, had served some good. "I'm not saying it wasn't justified," he said, "but it's very onerous."

And some state governments, he maintained, are going too far — "those situations are emerging around the country" — and infringing upon "a fundamental right or a Constitutional right," namely: to do business.

"We have to give businesses more freedom to operate in a way that's reasonably safe," he said. "To the extent that governors don't and impinge on either civil rights or on the national commerce — our common market that we have here — then we'll have to address that."

In particular, the Justice Department might join in support of private litigation, Barr said. 

His comments come after a conservative group led by Ed Meese, attorney general under former President Ronald Reagan, wrote to him urging action to address "rampant abuses of constitutional rights," Bloomberg reported.

Right-wing activists, including wealthy Trump donors, have also been organizing small-scale protests against shelter-in-place orders. President Trump has lent those protests his support. Tweeting to "liberate" states with Democratic governors, despite the fact that his administration's own stated plan for reopening the country — generally well received by public health experts — recognizes that states should determine the pace of loosening restrictions.

A report issued this week by Harvard University's Edmond J. Safra Center for Ethics argued that, "to fully remobilize the economy," the US would by late July need the capacity to conduct 20 million tests a day. As Mother Jones noted, the US is currently on pace to conduct just 530,000 daily tests by then — up from 150,000 today.

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A prison has biggest COVID-19 outbreak in Ohio

Marion Correctional Institution is the site of the biggest coronavirus outbreak in Ohio, driving Marion County to the highest rate of COVID-19 cases in the state, reported the Marion Star.

The situation at MCI is serious enough that Gov. Mike DeWine on Friday called on the Ohio National Guard to assist at the prison. The Guard was previously dispatched to help at Pickaway Correctional.

Here's what we know so far.

The Marion Correctional Institution has become one of the nation's largest hotspots for COVID-19, as advocates for both the correctional officers and the inmates say the state is not doing enough to protect either.

At least 78% of inmates, or 1,950, have tested positive, as of Monday. A total of 154 staff members have been infected, and one guard and one inmate have died. 

Marion County had 1,834 cases of COVID-19 as of 2 p.m. Sunday, according to the Ohio Department of Health, ahead of Franklin and Cuyahoga. Marion County had 103 positive cases on April 14, before the MCI outbreak was reported. 

On March 29, Marion Correctional was the first prison to report a confirmed coronavirus case in a staff member. Five days later, the prison had become the first in Ohio to report a COVID-19 case in a prisoner.

Within 16 days, the cluster at MCI prisoners had ballooned to more than 1,800 confirmed cases. More than 70 percent of the inmates at Marion Correctional have tested positive for the novel coronavirus.

Overall, the state’s prison system has recorded 2,426 positive results among inmates, the Ohio Department of Rehabilitation and Correction said. That represents 21 percent of Ohio's confirmed COVID-19 cases.

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Federal prison officers file action over lack of personal protective gear

Correctional officers at the federal women's prison in Tallahassee have filed a complaint about the lack of masks and other personal protective equipment during the coronavirus pandemic, reported the Tallahassee Democrat. 

The officers filed what's called an "Imminent Danger Report" with the U.S. Occupational Safety and Health Administration, the federal agency that enforces workplace safety. 

The April 14 complaint says actions by the U.S. Bureau of Prisons are proliferating the spread of the potentially deadly contagion. 

One officer at the minimum-security prison, at the corner of Capital Circle and Conner Boulevard, has tested positive for the coronavirus and three others are quarantined. Also, one inmate is awaiting test results as of Friday evening. 

Weeks of requests from the American Federation of Government Employees (AFGE), a labor union, for a supply of protective equipment like masks and gloves boiled over when officers were supplied with what they call counterfeit N95 masks. 

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Protecting rights as court proceedings move to the virtual world

Monitoring court hearings has become difficult, in some cases even impossible, for dozens of court watch programs scattered throughout cities and towns in the country. They rely on volunteers to sit in open court and take notes in the interest of transparency and accountability. But they said their access has been slowed or halted as virtually every system in the country suspended or reduced public court and moved online during the pandemic, reported The Marshall Project.

In New York City, anyone wanting to see a hearing has to go to the courthouse and watch on a screen there, possibly risking contagion. In Los Angeles and Miami, officials have not given court watchers a way to join their courts’ video conferences. In New Orleans, access has depended on individual judges, with some being more reliable than others.

It’s not just a matter of convenience, the court watchers said. Public trust in what happens in court is eroded when they—or anyone else—can’t witness it, they said, and their presence helps ensure the courts function as they are supposed to.

“What we've seen over the past few years is that our presence really does matter,” said Zoë Adel, a lead organizer with the New York City court watch. “It changes people's behavior—judges set lower bail—when they know court watchers are watching and they're being held accountable.”

To be sure, most judges and court administrators have had little choice but to close courthouses under state orders or health guidelines aimed at slowing the virus. To be able to conduct hearings that can’t be postponed, they are joining many other Americans in adapting quickly to online platforms many had never used before, leading to technical problems. As NPR reported, other public meetings that used open online conferencing have at times been targets of harassment.

“This was the first time we've done Zoom proceedings, and we rolled it out fast,” said District Court Judge Keva Landrum in New Orleans, referring to a popular video conference platform. She said judges wanted to make sure it would work before finding out how to allow public access. “Now that it has been going well and judges are more settled with it, I think judges will be increasingly willing to provide access to interested parties,” she said.

Shortly after speaking with Landrum, The Marshall Project was granted access to observe a magistrate court session on Zoom, and faced no difficulties following along. On Saturday, Landrum provided access to Court Watch NOLA moving forward.

The move from physical court to online conferencing got a boost in the CARES coronavirus stimulus act, which allows the historically camera-averse federal judges to use video for some hearings during the national emergency. But the hastily written law left out language guaranteeing public access to those video proceedings.

On state and local courts, access has been spotty as each court comes up with its own rules on the fly, court watchers said.

The shift is happening so rapidly that legal observers are still largely playing catch up. Douglas Keith, counsel at the Brennan Center for Justice, a progressive advocacy organization, said the group was still piecing together the constitutional questions that video court proceedings might raise.

“How will remote hearings affect the quality of representation in criminal cases, and the ability of defendants to speak to their lawyers with the frequency and privacy they need? How will appearing on video affect the jury’s and judge’s view of a defendant?” he said, to name a few.

Keith noted that in the 1984 case Waller v. Georgia, the U.S. Supreme Court declared public trials to be “essential” for the people accused because “the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.”

Public access to the courts is particularly important during disasters, said Simone Levine, executive director of Court Watch NOLA in New Orleans.

"When a community is in an emergency, the community's fear and distrust of public agents and officials increase and in these times it is integral that public officials increase their transparency,” she said.

The New York City program, organized by some public defenders, the grassroots VOCAL-NY group and the Brooklyn Community Bail Fund, focus on first appearances, when judges typically decide whether a recent arrestee will be detained pretrial or allowed to go home. They’ve fully stopped observing courts in the midst of the city’s stay-at-home order. That concerned Adel, “especially at a time like now where, if a judge sets bail, or someone is otherwise incarcerated pre-trial that the stakes are so much higher,” given the acute risk of contracting coronavirus in jail.

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GateHouse: Texas governor puts the brakes on non-monetary bond during pandemic

Matthew T. Mangino

GateHouse Media

April 17, 2020

Nearly 140 prison employees and staff of the Texas Department of Criminal Justice and about 285 inmates have tested positive for COVID-19, and two inmates have died as of April 16, according to KWTX-TV in Waco, Texas.

This week, the Department of Criminal Justice sent letters to county sheriffs throughout the state announcing that state correctional facilities will temporarily stop taking inmates from county jails.

All of this in the shadow of Texas Governor Greg Abbott’s executive order thwarting judges from releasing pretrial detainees who cannot afford bail. Some sheriffs, prosecutors and judges had pledged to reduce the population of local jails in order to protect inmates and staff and help “flatten the curve.”

According to the Dallas Morning News, Abbott’s sweeping executive order blocks judges from releasing indigent defendants on non-monetary personal bonds. The no-cost bonds often carry other conditions of release - like home confinement, electronic monitoring or day reporting.

In pure Texas style, the state’s Attorney General Ken Paxton, who, according to the Texas Observer, is himself out of jail on personal bond for three pending felony charges, has intervened in support of Governor Abbott in several lawsuits challenging the governor’s executive order.

Many medical and public health experts have repeatedly emphasized that to mitigate the threat of COVID-19 spread in jails; local officials must do everything possible to reduce the jail population.

Prisons and jails make it virtually impossible to social distance; quarantine people who have been exposed; or isolate those who are ill. Prisons and jails are unsanitary, soap is at a premium and hand sanitizer is banned.

Abbott’s order highlights a wider problem. The incarceration of the poor. If a defendant has money for bail, no matter the underlying charges or the level of risk, he sleeps in his own bed, goes to work every day and walks the streets awaiting trial. If a person accused of a crime is without money she sits in jail until trial - and now risks exposure to a deadly virus.

The problem in Texas is as much about class and race as it is about protecting Texans from potential violent criminals as Abbott stressed when he put the order in place.

Abbott’s order suspends criminal procedure and all other relevant statutes and rules “to preclude the release on personal bond of any person previously convicted of a crime that involves physical violence or the threat of physical violence, or of any person currently arrested for such a crime that is supported by probable cause.”

At least four Texas prosecutors, including Dallas District Attorney John Creuzot, challenged Abbott’s executive order. The suit alleges, “It has become increasingly clear that relying on money bail, as opposed to the case-by-case decisions employed by every judge in this state, does not promote public safety and instead makes our communities less safe.”

In addition, 13 Harris County judges filed an injunction seeking to stop the governor from carrying out his order. The judges argued that the governor is attempting to suspend long standing procedural rules and “in so doing reaches beyond the statutory and constitutional authority of the governor.”

The injunction was granted by the lower court and then overturned by the Texas Supreme Court.

The suspension of criminal procedure has hamstrung judges and local officials in their efforts to address the needs of vulnerable inmates during this unprecedented health crisis. The injunction complaint alleged the governor’s action “threatens to explode jail populations during this deadly pandemic.”

Travis County District Attorney Margaret Moore recently tweeted, “We will not let the governor’s executive order limiting the availability of personal bond for certain defendants to impede our highly successful policies here that have reduced our jail population dramatically over the last month.“
This issue is about a lot more than crime and punishment - it is about life and death inside, and outside, prison walls.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Ten percent of inmates and 21% of staff test positive for virus in Michigan prison

A Michigan prison that's emerged as a hotspot for coronavirus cases has a rate of infection that exceeds jail systems in New York City and Chicago, both of which have garnered national attention as large sources of the outbreak, reported the Detroit Free Press. 

At Parnall Correctional Facility near Jackson, 10% of prisoners and 21% of staff have tested positive for COVID-19, according to a Detroit Free Press analysis of Department of Corrections data.

The percentage of the incarcerated population sickened by the novel coronavirus at Parnall has surpassed the 7% infection rate at the Cook County jail in Chicago, which The New York Times described last week as the largest known source of infections in the United States. 

Parnall’s rate is also higher than that of Rikers Island and other New York City jails, which have a collective infection rate of 8%, according to the Legal Aid Society. Like Chicago, New York City’s jail system has a higher COVID-19 case count and a population more than twice as large as Parnall.

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A Philadelphia judge rejected every request for emergency inmate release

As Philadelphia’s courts continue to hold emergency hearings to reduce the jail population amid a coronavirus outbreak behind bars, one Common Pleas Court Judge Anne Marie Coyle has rejected every request for inmate release — and has even increased the bail for four, reported the Philadelphia Inquirer.

That record over two days prompted the Defender Association to inform the courts Tuesday evening that it intended to withdraw all cases before Coyle, saying it no longer believed it was in its clients’ best interest to argue their cases in front of her.

In an email sent to the leadership of the First Judicial District and obtained by The Inquirer, Chief Defender Keir Bradford-Grey wrote that as Coyle increased some detainees’ bail during hearings ostensibly designed to expedite their possible release, the judge told attorneys in her virtual courtroom “that they should be careful what [they] wish for."

“We are compelled reach the unfortunate conclusion that Judge Coyle does not share the understanding reached by all of the stakeholders involved in this extraordinary circumstance," Bradford-Grey wrote.

This is the latest sign of discord among the city’s judiciary, defense lawyers, and the District Attorney’s Office, who have publicly bickered for weeks about how to best to respond to a virus that is spreading behind bars five times faster than the rest of the city.

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The decision also created some uncertainty in a process that, through Tuesday, had led to roughly 380 inmates securing an early release during five days of emergency hearings that began last week.

The judges have agreed to review the cases of scores of potentially releasable inmates from lists compiled by the District Attorney’s Office and the Defender Association in an effort to reduce the population of the county’s jails, which public health advocates have been warning for weeks could turn into a breeding ground for transmission of the coronavirus.

On Tuesday, city officials announced the first inmate death related to the coronavirus in the jails and said 54 more were infected with the disease.

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Trump reverses course on 'the total authority' of the presidency

One day after saying, “When somebody is the president of the United States, the authority is total,”  President Trump has backtracked.  The claim, with no legal or constitutional basis, had a monarchical or dictatorial  favor to it. The silence from the DOJ indicated that even the President's attorney general, a believer in the supreme authority of the executive branch of government, was skeptical.

Governors from both parties noted pointedly that they have and will retain the authority to lift social distancing rules they put in place, according to The Week. By his press conference the following day, Trump largely reversed course.

"I will be speaking to all 50 governors very shortly and I will then be authorizing each individual governor of each individual state to implement a reopening, and a very powerful reopening plan, of their state at a time and in a manner as most appropriate," Trump said. 

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SCOTUS will hear oral arguments through telephone conference

The US Supreme Court announced that it will hear oral arguments postponed by the COVID-19 pandemic through telephone conference conference between May 4 and May 13, reported Jurist.

A number of cases scheduled to be heard in March and April were postponed due to the pandemic, but now telephone conference availability of counsel has been confirmed for at least 10 cases, including McGirt v. Oklahoma, Chiafalo v. Washington, and Trump v. Vance. While hearing these cases, justices and counsel will participate remotely while a live audio feed will be available to news media. It is presently unknown how hearing oral arguments via teleconference will affect the date at which rulings are determined.

Fix the Court, a nonpartisan Supreme Court monitoring group, reports that 72 percent of Americans support remote conferencing for the Supreme Court during the ongoing pandemic. “The American public expects Supreme Court justices to use modern technology to continue doing their jobs,” says Fix the Court Executive Director Gabe Roth, “and that includes hearing oral arguments.”

This unprecedented move will present a logistical challenge, but is in the best interest of the justices’ health as six of the nine justices are in the most-vulnerable age group for contracting COVID-19. The Supreme Court Building remains open for essential business, but closed to the general public.

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SCOTUS: Public trials 'essential' for people accused of a crime

The pandemic has turned the court system upside down. Court watchers, volunteers who sit in open court and take notes in the interest of court transparency and accountability have been left out of the new virtual courtroom. Monitoring court hearings has become difficult, in some cases even impossible, for dozens of court watch programs scattered throughout cities and towns in the country, reported The Marshall Project. They said their access has been slowed or halted as virtually every system in the country suspended or reduced public court and moved online during the pandemic.

In New York City, anyone wanting to see a hearing has to go to the courthouse and watch on a screen there, possibly risking contagion. In Los Angeles and Miami, officials have not given court watchers a way to join their courts’ video conferences. In New Orleans, access has depended on individual judges, with some being more reliable than others.

It’s not just a matter of convenience, the court watchers said. Public trust in what happens in court is eroded when they—or anyone else—can’t witness it, they said, and their presence helps ensure the courts function as they are supposed to.

“What we've seen over the past few years is that our presence really does matter,” said Zoë Adel, who runs the New York City court watch. “It changes people's behavior—judges set lower bail— when they know court watchers are watching and they're being held accountable.”

To be sure, most judges and court administrators have had little choice but to close courthouses under state orders or health guidelines aimed at slowing the virus. To be able to conduct hearings that can’t be postponed, they are joining many other Americans in adapting quickly to online platforms many had never used before, leading to technical problems. As NPR reported, other public meetings that used open online conferencing have at times been targets of harassment.

“This was the first time we've done Zoom proceedings, and we rolled it out fast,” said District Court Judge Keva Landrum in New Orleans, referring to a popular video conference platform. She said judges wanted to make sure it would work before finding out how to allow public access. “Now that it has been going well and judges are more settled with it, I think judges will be increasingly willing to provide access to interested parties,” she said.

Shortly after speaking with Landrum, The Marshall Project was granted access to observe a magistrate court session on Zoom, and faced no difficulties following along. On Saturday, Landrum provided access to Court Watch NOLA moving forward.

The move from physical court to online conferencing got a boost in the CARES coronavirus stimulus act, which allows the historically camera-averse federal judges to use video for some hearings during the national emergency. But the hastily written law left out language guaranteeing public access to those video proceedings.

On state and local courts, access has been spotty as each court comes up with its own rules on the fly, court watchers said.

The shift is happening so rapidly that legal observers are still largely playing catch up. Douglas Keith, counsel at the Brennan Center for Justice, a progressive advocacy organization, said the group was still piecing together the constitutional questions that video court proceedings might raise.

“How will remote hearings affect the quality of representation in criminal cases, and the ability of defendants to speak to their lawyers with the frequency and privacy they need? How will appearing on video affect the jury’s and judge’s view of a defendant?” he said, to name a few.

Keith noted that in the 1984 case Waller v. Georgia, the U.S. Supreme Court declared public trials to be “essential” for the people accused because “the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.”

Public access to the courts is particularly important during disasters, said Simone Levine, executive director of Court Watch NOLA in New Orleans.

"When a community is in an emergency, the community's fear and distrust of public agents and officials increase and in these times it is integral that public officials increase their transparency,” she said.

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‘Stunning’ Drop in Crime Worldwide as a result of pandemic

In Chicago, one of the most violent U.S. cities, drug arrests have plummeted 42 percent compared with last year since the city shut down amid the pandemic. One reason is that drug dealers have no choice but to wait out the economic slump. “The feedback I’m getting is that they aren’t able to move, to sell anything anywhere,” said Joseph Lopez, a lawyer for accused drug dealers.

Chicago’s crime has declined 10 percent during the pandemic, a trend playing out globally as cities report stunning drops, the Associated Press reports. Still, officials worry about a surge of unreported domestic violence and what happens when restrictions lift or go on too long.

Across Latin America, crime is down to levels unseen in decades. El Salvador reported an average of two killings a day last month, down from 600 a day a few years ago. Much of the decrease is due to tougher security policies and gang truces, but near-total limits on movement are driving it down further. 

In Peru, where crime totals fell 84 percent last month, a mortician who usually has up to 15 bodies a day napped on a bench after six hours without a client. In South Africa, murders fell from 326 to 94 in the first week of a lockdown. 

New York city saw major crimes drop 12 percent from February to March. While narcotics arrests are down, drug sales continue, said Rodney Phillips, a former Chicago gang member. “These guys already face poverty and death in these areas,” he said. “They might be selling more online now. But they aren’t going to give up just because of the coronavirus.” 

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PA Gov. Wolf orders DOC to grant temporary reprieves to inmates due to COVID-19

Under the authority granted to him by the Pennsylvania Constitution and the Emergency Management Services Code, Governor Tom Wolf today ordered Department of Corrections officials to establish a Temporary Program to Reprieve Sentences of Incarceration to help aid the department in the transfer of qualifying individuals to community corrections facilities or home confinement amid the COVID-19 pandemic.

The Wolf Administration continues to take every possible action – and asks all Pennsylvanians to do the same – to help stop the spread of COVID-19. These actions, including those in the state corrections system, will save lives, help stop the spread of the virus and avoid overwhelming our already-burdened health care system.

“We can reduce our non-violent prison population and leave fewer inmates at risk for contracting COVID-19 while maintaining public safety with this program,” Gov. Wolf said. “I am pleased to direct the Department of Corrections to begin the process to release vulnerable and non-violent inmates at or nearing their release dates in an organized way that maintain supervision post-release and ensures home and health care plans are in place for all reentrants.”

The Temporary Program to Reprieve Sentences of Incarceration Program only applies to state prison inmates who have been identified as being non-violent and who otherwise would be eligible for release within the next 9 months or who are considered at high risk for complications of coronavirus and are within 12 months of their release.

“Just as everyone in the community is dealing with COVID-19, the state prison system is doing the same,” Corrections Sec. John Wetzel said. “We must reduce our inmate population to be able to manage this virus. Without this temporary program, we are risking the health, and potentially lives, of employees and inmates. We can safely release individuals to the community to reduce their vulnerability and allow the department to successfully manage COVID-19.

“Without any current legislation, we are moving forward with the understanding that future legislation could further advance these efforts.”

As of this morning, there are 11 COVID-19 cases at one prison, SCI Phoenix in Montgomery County, but concern for cases spreading to other facilities is another reason for the expedited release of eligible inmates.

Under the temporary reprieve program, approximately 1,500 to 1,800 inmates would be eligible, although given the reentry challenges of ensuring connection to the health care and behavioral health system, housing and food security, the number will likely be less than the eligible pool.

Vulnerable inmates will include inmates aged 65 or older; anyone with an autoimmune disorder; pregnant inmates; anyone with a serious, chronic medical condition such as heart disease, diabetes, chronic respiratory disease, bone marrow or organ transplantation, severe obesity, kidney disease, liver disease,[and] cancer; or another medical condition that places them at higher risk for complications of coronavirus as defined by the Centers for Disease Control and Prevention.

The releases could begin as early as Tuesday, April 14.

Sec. Wetzel stressed that a thorough reentry component has been developed to ensure inmates will be successful.

“While we need to release inmates to protect them and to allow us space to mitigate the impact of the virus in our system, we also know that we need to prepare inmates for release,” Sec. Wetzel said. “Our reentry plans will include several days of release planning with the inmate, preparing and connecting the inmate to treatment programs in the community, release transportation and a complete medical screening to ensure that we are not releasing sick inmates. We’ll also provide them with an appropriate medication supply and connect them to medical providers in the community.”

While on temporary reprieve, individuals will be monitored similarly to parolees and will be supervised by parole agents. Upon expiration of the order, individuals would be returned to prison to complete any remaining portion of their sentences.

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GateHouse: Barr makes about-face on fight against virus

Matthew T. Mangino

GateHouse Media

April 10, 2020

This week, Attorney General William P. Barr told Fox News’ Laura Ingraham that some of the government-imposed restrictions meant to control the spread of COVID-19 were “draconian.”

Barr acknowledged that governments, particularly state governments, have broad authority to impose restrictions on people in cases of emergency. He tempered that with the following admonition, the federal government should be “very careful to make sure that the draconian measures that are being adopted are fully justified.”

That’s a significant about-face for a guy who has argued that the sky is the limit when it comes to executive power.

In mid-March, after President Donald Trump declared a national emergency, Newsweek reported that the attorney general proposed granting himself immense, permanent powers extending far past the needs posed by a pandemic.

Barr proposed having the authority to personally ask any chief judge to hold a citizen, “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.”

Barr was essentially asking to suspend habeas corpus. Such a “draconian” move has happened rarely in our nation’s history - most notably the Civil War, Reconstruction and the World War II internment of Japanese Americans.

What are Barr’s new concerns with government intrusion?

Barr said during the Fox interview he is concerned about the “tracking of people” suggested by some experts to identify those infected and to quarantine or isolate those persons.

The New York Times reported Israel’s Prime Minister Benjamin Netanyahu has authorized the country’s internal security agency to tap into a vast and previously undisclosed trove of cell phone data to retrace the movements of people who have contracted the coronavirus and identify others who should be quarantined because their paths crossed.

Alan Z. Rozenshtein, an Associate Professor of Law at the University of Minnesota Law School, wrote on the Blog Lawfare, “the longer the pandemic drags on, the more willing (and rightly so) people will be to trade in some of their privacy for the freedom to work and play.”

There is already significant support for location tracking among both policy experts and the general public.

According Rozenshtein, any disease surveillance program is likely to be evaluated under the Fourth Amendment’s “special needs doctrine.” Through the special needs doctrine courts have, at times, permitted warrantless surveillance with less than probable cause. In those instances courts have weighed if the search is aimed at something other than a traditional law enforcement purpose, is reasonable, and not impractical under the circumstances.

On one hand the attorney general is willing to let a man or woman languish in jail awaiting formal charges or trial but, on the other hand, attack the efficacy of surveilling an ill person during a national health emergency.

The World Health Organization has provided guidance for surveillance during a pandemic. There is, of course, one problem with that - the president is blaming the WHO for the pandemic and threatening to withhold the organization’s funding.

According to the WHO, the primary objective of surveillance monitoring during a pandemic is to track the course of the pandemic. Surveillance will reveal geographical spread, disease trends, intensity of transmission, impact of the pandemic on health care services and changes in the epidemiology.

Social distancing has no doubt begun to save lives in the United States. As COVID-19 projections have been adjusted downward, Barr lamented a prolonged shutdown could cost lives. He made the following dubious comment while opposing prolonging the shutdown while on Fox News - ”(C)ancer researchers were probably at home now, not doing their critical work.”

There are always going to be competing interests, but drawing back on social distancing to restart the economy; kowtow to religious leaders; or win an election will never be the right thing to do.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Death row inmates in Pennsylvania get reprieve on prison restrictions

Convicted killers sentenced to death will have a slightly easier life in Pennsylvania’s prisons under a settlement approved  by a federal judge, reported PennLive.com.

Final approval of the deal by U.S. Middle District Judge John E. Jones III comes five months after the ACLU and the state Department of Corrections hashed out a tentative accord over easing restrictions for those facing capital punishment.

Those inmates, who had been spending 22 hours out of every day alone in their 8-by-12-foot cells will now be able to socialize, including with one another, and will have wider contacts with the outside world.

Under the final settlement sanctioned by Jones, those prisoners will receive at least 42 ½ hours of out-of-cell activity weekly, including exercise time in the prison yard. They will have access to phones daily and be allowed contact visits with family, lawyers and religious advisors.

The inmates won’t be routinely shackled any more and will be allowed to hold prison jobs. Those affected by the previous de facto solitary confinement practices will be provided “resocialization assistance.” The prisoners still will be housed separately from the general population in Capital Case Units in the prisons.

The ACLU and the Abolitionist Law Center filed the civil rights suit against the Corrections Department in 2018, claiming the state prison system was violating the constitutional protections of its 156 death row inmates, including their rights against cruel and unusual punishment and to due process of law.

The prisoners named as plaintiffs in that suit are Anthony Reid, Ricardo Natividad, Mark Spotz, Ronald Gibson and Jermont Cox.

Reid killed two men in Philadelphia in 1989. Natividad committed a 1996 murder in Schuylkill County. Spotz is on death row as the result of a 1995 killing spree in Clearfield, Schuylkill, Cumberland and York counties. The victims included Spotz’s brother and three women he encountered at random.

Gibson fatally shot two people, including an off-duty police officer, at a Philadelphia bar.

Cox was sentenced to death for a 1995 slaying in Philadelphia. Last year, the state Supreme Court rejected a petition filed in Cox’s name urging it to abolish the death penalty in Pennsylvania.

Jones called the prior restrictions on the death row inmates “draconian” in his order approving the settlement. He also approved an agreement for the state to pay $507,500 for the legal services the prisoners received.

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PA Supreme Court refuses to order release of juvenile offenders in face of coronavirus

The Pennsylvania Supreme Court refused to order the blanket release of juvenile criminal offenders and delinquents centers over fears that the coronavirus might run rampant in those facilities, reported PennLive.com.

The high court didn’t stand in the way of releases ordered by the county court judges who sent the juveniles to those detention, corrections and residential centers, however. And they directed county courts to restrict the number of new juvenile commitments to those facilities.

The Supreme Court ruling came in response to a petition filed by the Philadelphia-based Juvenile Law Center and the Youth Sentencing & Re-entry Project. Those organizations also asked the court to order that new juvenile offenders not be placed in detention until the COVID-19 pandemic abates.

Essentially, the justices said, the court system already has the situation covered. They cited an order they issued last month authorizing county courts to act to reduce the numbers of adult inmates and juvenile detainees as a precaution against the spread of the virus.

Although the court system in Pennsylvania in largely shut down, county judges are still addressing such matters, the high court noted. Prison inmate and juvenile detainee reduction efforts already are underway across the state, the justices said.

“The potential outbreak of COVID-19 in facilities housing juveniles in detention poses an undeniable threat to the health of juvenile detainees, facility staff and their families, and the surrounding community. Accordingly, action to mitigate the potential of a public health crisis is appropriate,” the justices wrote.

“We emphasize, however, that the immediate release of juveniles detained in various facilities, as sought by petitioners, fails to take into account the individual circumstances of each juvenile, including any danger to them or to others, as well as the diversity of situations present within individual institutions and communities,” they added.

They directed county president judges to address the situations regarding juveniles “immediately.”

“Judges are to undertake efforts to limit the introduction of new juveniles into the juvenile detention system during the COVID-19 pandemic,” the justices wrote.

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Federal appeals court supports resumption of federal executions

A divided federal appeals court sided with the Trump administration’s efforts to resume federal executions after a nearly two-decade hiatus, reported the Washington Post.

While the ruling was a victory for the government, it does not mean executions can begin immediately. The appeals court sent the case back to a lower court and put its own order on hold to allow lawyers for the death row inmates to challenge it. 

The decision by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit comes months after the Justice Department had intended to resume carrying out death sentences under a plan announced by Attorney General William P. Barr last year.

The federal government has not executed a death row inmate since 2003. When Barr declared last summer that the Justice Department had adopted a new lethal-injection procedure and set execution dates for five inmates, he said officials owed it to the victims and their relatives.

But in November, just weeks before the first scheduled execution, U.S. District Judge Tanya S. Chutkan of Washington issued an injunction blocking four that were scheduled. The fifth was separately stayed by a different court.

Chutkan said the government’s new protocol — which laid out a lethal-injection procedure using one drug, pentobarbital — was inconsistent with the Federal Death Penalty Act, writing that the 1994 law required federal executions be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.”

On Tuesday, the appeals court panel split 2 to 1 in deciding to lift the injunction. In three separate opinions, each member took a different view of what the law requires when it comes to guidelines for federal executions.

Because two judges — Gregory Katsas and Neomi Rao, both recent nominees of President Trump — agreed Chutkan had misinterpreted sections of the law, they lifted the injunction and sent the case back to lower court. 

Both Katsas and Rao rejected the arguments for the four people on death row, but for different reasons. 

Katsas concluded the law applies only to the top-line choice among execution methods, such as whether to use lethal injection instead of hanging or electrocution. Rao, meanwhile, found the law also requires the federal government to follow execution procedures set forth in state law, but not procedures set forth in less formal state execution protocols. 

The law requires federal executions to “follow the method of execution provided by the law of the state in which the sentence is imposed, but it does not require federal executions to follow the ‘additional procedural details’ invoked by the district court,” Katsas wrote in a 31-page opinion. Katsas also said the claims presented by the death row inmates “are designed to delay lawful executions indefinitely.” 

In his dissent, Judge David S. Tatel pointed out that for decades almost all federal executions were carried out by state officials who executed federal prisoners in the same “manner” as they executed their own. 

Congress subsequently “signaled its intent to continue the same system — for federal executions to be carried out in the same manner as state executions,” wrote Tatel, who was nominated by President Bill Clinton. 

To rule otherwise, Tatel wrote, would defeat the purpose of the law, which he writes was “to make federal executions more humane by ensuring that federal prisoners are executed in the same manner as states execute their own.” 

A spokesman for the Justice Department did not immediately respond to a request for comment. Attorneys for the inmates facing execution said the federal government had “rushed the process” to carry out the lethal injections without letting courts review new execution protocols. 

 “Without action by the full court, the panel’s splintered decision will allow the government to execute prisoners even while serious questions remain unanswered about the legality of the government’s execution procedures under federal law,” Catherine Stetson, an attorney for the death row inmates, said in a statement. 

Stetson wrote in a separate email that attorneys for the inmates were “considering all options,” including review by a full complement of D.C. Circuit judges.

The Justice Department had appealed Chutkan’s ruling and asked the Supreme Court to let it sidestep that injunction and carry out the executions late last year, but the high court refused, letting the case play out before the federal appeals court.

Lethal injection is the primary method of execution nationwide, but the specific procedures governing executions can vary by state, including the types of drugs, how many are used and other details laid out in execution plans. 

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SCOTUS extends police authority to stop a vehicle based on a hunch

The US Supreme Court ruled this week that it is reasonable under the Fourth Amendment for a police officer to make an investigative traffic stop after running the license plate of a vehicle and learning that the owner’s driver’s license has been revoked, even if the officer is unsure that the owner is driving the vehicle, reported Jurist.

The question of whether the stop was reasonable came to the court through a Kansas case, Kansas v. Glover. In the state trial court, Glover attempted to suppress all evidence seized during the stop, claiming that the officer lacked reasonable suspicion. The district court granted the motion to the suppress—a decision that has been disputed by the appellate courts. The Kansas Court of Appeals reversed the district court’s decision. Then, the Kansas Supreme Court reversed the Court of Appeals. Finally, the US Supreme Court, in an 8-1 decision, reversed the Kansas high court.

In the opinion of the Supreme Court, authored by Justice Clarence Thomas, the court said that “the level of suspicion [that reasonable suspicion] requires is considerably less than proof of wrongdoing by a preponderance of the evidence” and “depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

The court went on to say that “common sense suffices to justify” the officer’s inference that the owner was driving with a revoked license, and “Kansas law reinforces that it is reasonable to infer that an individual with a revoked license may continue driving.” In Justice Sonia Sotomayor’s dissent, she argued that the inference made was not a product of the officer’s training. The majority responded by saying that “[t]he inference that the driver of a car is its registered owner does not require any specialized training; rather, it is a reasonable inference made by ordinary people on a daily basis.”

The court concluded by reaffirming its precedents that the “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,'” and that the officer in this case “drew an entirely reasonable inference.” The court held that the stop was reasonable because the officer lacked any information that would rebut the reasonable inference that the owner of the vehicle was driving.

Justices Elena Kagan and Ruth Bader Ginsberg joined the court’s opinion, while also concurring. In the concurring opinion authored by Kagan, the note that the Kansas statutory scheme demonstrates that a revocation of a license stems from serious and repeated offenses, giving way to a reasonable inference that the owner was likely to continue breaking the law. They found Kansas’ unique statutory scheme to be a dispositive fact that leads the court to its conclusion.

In its narrow holding, this court said it has reaffirmed its precedents on the reasonable suspicion inquiry.

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Pennsylvania Supreme Court denies request to reduce jail populations in light of pandemic

Well it didn't take long, the Pennsylvania Supreme Court denied a request by the American Civil Liberties Union (ACLU) to order the release from county jails certain classes of persons in response to possible COVID-19 outbreaks, reported Jurist.

The ACLU had filed an application for relief under the court’s King’s Bench jurisdiction, which would allow the court to decide an issue that is not pending before any lower court. The group asked for the court to order county common pleas courts to release people who are at high risk from covid-19, as well as those persons held pretrial and persons being held on short sentences for minor offenses.

In denying the order, the court emphasized that the ACLU’s request did not “take into account the potential danger of inmates to victims and the general population.” However, the court did recognize the dangers covid-19 poses to persons in county jails who are unable to practice isolation and social distancing in any meaningful way, and ordered the president judges of each judicial district “to coordinate with relevant county stakeholders” to determine appropriate measures, including “to identify individuals and/or classes of incarcerated persons for potential release or transfer . . . [i]f utilization of public health best practices is not feasible due to the population of the county correctional institutions.”

In a concurring opinion, Chief Justice Saylor wrote that, “In my view, the primary authority to release qualifying prisoners on account of a disaster emergency rests with the Governor . . . and/or the General Assembly” rather than with the judiciary.

Witold Walczak, legal director at ACLU of Pennsylvania, nonetheless thought the court’s decision represented a victory, since the order to the president judges “shows that the court agrees with our underlying premise that action must be taken to reduce jail populations in order to keep them safe.”

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ACLU files emergency request to release some inmates from county jails

The ACLU of Pennsylvania on behalf of the Pennsylvania Prison Society filed an emergency request asking the state Supreme Court to use its “King’s Bench” power to protect public health by ordering county common pleas courts to release some people from county jails, including those who are at high risk of serious illness or death if infected by COVID-19 and those who are held pretrial or on short sentences for minor offenses.

The petition argues that drastically reducing jail populations to allow jails the space to follow CDC-recommended safe social distancing and hygiene practices is the only way to prevent widespread contagion, which will inevitably infect people who are incarcerated, jail staff, and the surrounding communities. 

The emergency request asks the Supreme Court to order every Court of Common Pleas president judge to limit new jail admissions to the most serious offenses and order the presumptive release of everyone already held on cash bail or for technical and minor-offense probation violations; in a work release program; who are medically vulnerable because they are older or have certain serious health conditions; or who are within three months of completing their minimum sentence. 

The petition was filed on behalf of the Pennsylvania Prison Society and five people detained in jails around the commonwealth. It is joined by the Public Defender Association.

To read the Petition CLICK HERE

GateHouse: Compassionate release of inmates a moral imperative

Matthew T. Mangino

GateHouse Media

April 3, 2020

The coronavirus is particularly hard on elderly and infirm people. There are a lot of elderly and infirm people in prison.

Prison inmates age at an accelerated rate when compared to people living outside the prison walls. The health of a 50-year-old person in prison is comparable to the health of a 65-year-old. That is not a good thing - especially in the midst of a pandemic.

Compassionate release, sometimes called medical or geriatric parole, is a process that allows for the release of prisoners who are elderly or sick. Some form of compassionate release exists in 49 states, the District of Columbia and with the federal government.

Prison demographics have changed dramatically in the last several decades. According to The Pew Charitable Trust, in Virginia for instance, 822 state prisoners were age 50 and over in 1990, about 4.5% of all inmates. By 2019, that number had grown to more than 8,000, or 21% of all inmates.

The Boston Globe recently reported that prisons are “Petri dishes for disease in the best of times, but they could become incubators for COVID-19 now.”

In prison, social distancing is impossible. Inmates are elbow to elbow when eating, showering and engaging in recreational activity. Besides the “graying” of inmates, many suffer from diabetes, cardiovascular disease, asthma, cancer and other conditions that, according to the Globe, make them more susceptible to COVID-19 which will likely result in intensive care, isolation and quite possibly death.

Compassionate release was created as a safety valve for elderly and infirm inmates. Unfortunately, even in the throes of a national health emergency, the release of ailing inmates has been anything but compassionate. As a result of the slow and cumbersome nature of the compassionate release process and its high denial rates, many infirm and terminally ill inmates die waiting on decisions - and many more will die as a result of COVID-19.

According to an investigation by The Marshall Project and the New York Times, from 2013 to 2017, the Federal Bureau of Prisons approved 6% of the 5,400 applications for compassionate release, while 266 inmates who applied died in custody awaiting a decision.

Congress created compassionate release as a way to release certain elderly and sick inmates when it becomes “inequitable” to keep them in prison any longer. Supporters viewed the program as a humanitarian measure and a sensible way to reduce health care costs by releasing inmates who pose little risk to public safety, reported the Times.

Last week, 14 United States Senators wrote to the Federal Bureau of Prisons seeking to ramp up the use of the Elderly Home Detention Pilot Program which permits terminally ill and elderly inmates to serve a portion of their sentence on home confinement.

The governor of Kentucky has reduced the sentences of 186 inmates who have been screened based on the Centers for Disease Control and Prevention guidelines and determined to be most susceptible to the COVID-19. The governor has signaled that there may be more to come. There are about 24,000 prisoners in Kentucky state prisons.

In California, where 10,500 inmates are age 60 or older, lawyers told a judicial panel overseeing prison conditions that 17,000 prisoners are a medically high risk. According to the Los Angeles

Times, lawyers argued that without immediate action, “COVID-19 will spread like wildfire in (the state’s) crowded prisons ... overwhelming hospital capacity and needlessly infecting thousands.”

This week California Governor Gavin Newsom stopped all new prison admissions, but said he had “no interest in ... releasing violent criminals from our system.”

Unfortunately, too many governors and lawmakers share Newsom’s sentiments, even if those elderly and unhealthy inmates have about zero chance of reoffending. A lengthy sentence, even a life sentence, should not be turned into a death sentence.

Compassionate release can save lives and is morally the right thing to do. Terminally ill, handicapped and infirm inmates are generally not a threat to society and are susceptible to the wrath of this terrible virus. The early release of at-risk inmates can help flatten the curve and save the lives of other inmates and prison staff.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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