11th Circuit tackles abortion case during COVID crisis

I missed this one last week.  Judge Jordan, joined by Martin and Rosenbaum upheld a preliminary injunction against an Alabama law that was being interpreted as prohibiting abortions during corona.

Bloomberg law summarizes the opinion here:

Alabama will remain partially blocked from imposing new restrictions on abortions in name of public health during the coronavirus pandemic, the Eleventh Circuit said.
Alabama State Health Officer Scott Harris mandated the postponement of “all dental, medical, or surgical procedures” except those “necessary to treat an emergency medical condition” or “to avoid serious harm from an underlying condition or disease, or necessary as a part of a patient’s ongoing and active treatment.”
The order is currently in effect until April 30, but may be extended. A violation would be a misdemeanor.
Planned Parenthood, the Alabama Women’s Center, and other abortion providers sued, and a federal court issued a preliminary injunction. It doesn’t entirely block the state from enforcing the order against abortion providers. But it does bar the state from “failing to allow healthcare providers to consider and base their decisions as to whether to provide an abortion without delay on certain factors,” including whether a delay would cause the patient to lose her legal right to an abortion under Alabama law after 20 weeks of pregnancy.
The injunction will remain in place, the U.S. Court of Appeals for the Eleventh Circuit said.
“The state argues that the order is a valid exercise of its power to issue public health orders during an emergency,” the court said. “But just as constitutional rights have limits, so too does a state’s power to issue executive orders limiting such rights in times of emergency.”

Judge Goodman continues great work on COVID-19 jurisprudence

Judge Goodman puts ICE's feet to the fire in this report and recommendation to Judge Cooke.  The Miami Herald covers it here:

A Miami federal magistrate judge recommended Wednesday that U.S immigration officials “substantially” reduce detainee populations at three South Florida detention centers as COVID-19 positive cases continue to climb behind bars.

In his 69-page recommendation — which still needs to be reviewed by U.S. District Judge Marcia G. Cooke — Magistrate Judge Jonathan Goodman said U.S. Immigration and Customs Enforcement should be required to prove that it is accelerating the release process for non-criminal detainees in an effort to stop the spread of the coronavirus. Those who qualify for release would be subject to detention alternatives like parole, telephone monitoring, physical check-ins or GPS monitoring through an electronic ankle bracelet.

Goodman stopped short of recommending that roughly 1,200 detainees be released from the Krome Processing Center in Miami-Dade and Broward Transitional Center in Pompano Beach and the Glades County detention center in Moore Haven. A lawsuit filed by immigration advocates sought an order for ICE to release as many as 90 percent of the detainees in the three facitilies. Goodman said the court does not have the authority to issue such an order.

***

“To eliminate any confusion, this [report] does not technically require ICE to actually release anyone. It requires ICE to only conduct its own, internal review in a good faith effort to cause the release of a substantial number of detainees,” Goodman added. “Thus, ICE would not be violating an order if it refused or otherwise failed to release detainees at the three centers. That hypothetical result would be horribly disappointing and extremely distressing, and it would undermine the spirit of this [order].”


Goodman said that “to encourage ICE to be reasonable and to help the court evaluate whether ICE is acting in good faith,” the agency should be required to also submit twice-weekly reports on how many of its detainees — and at which of the three centers — have no prior criminal convictions and no pending criminal charges, as well as those with criminal histories.

Goodman’s recommendation, filed in response to a lawsuit filed by immigration advocates last week seeking the immediate release of 90 percent of the detainees at the three South Florida centers, says the order he’s recommending would require ICE to immediately “make all efforts to reduce the population to 75 percent of capacity at each of the three detention centers” within two weeks, a “percentage sufficient to permit social distancing.”

Read more here: https://www.miamiherald.com/news/local/immigration/article242206461.html#storylink=cpy

“Lori Loughlin case should be dismissed if the prosecutors cheated”

That’s the title of my latest piece in the Hill. Here’s the intro:

Putting aside whether we really want cheating on a test or lying on a resume to count as a federal crime, we can all agree that prosecutors should not be able to cheat to obtain a conviction — especially in a case about cheating.
Yet it now appears that federal prosecutors and agents in the Lori Loughlin case may not only have been cheating but then suppressing the evidence of their cheating until after they failed in trying to get her to plead guilty.Recall that Loughlin and her husband are accused of bribing coaches at the University of Southern California with $500,000 to get their two daughters admitted. The money, according to the prosecutors, would go through the mastermind of the whole affair, Rick Singer, and then to the coaches. Loughlin has said from the beginning that she never thought that her money was going directly to a coach; instead she thought she was making a donation to the school or to the athletic department, which would be entirely legal. The prosecutors openly scoffed at this defense, saying that they had recordings of Loughlin and her husband which demonstrated that they knew the money was going to bribe the coach.They did so even though there was documentary evidence that appears to back up exactly what the defense was saying.

SDNY judges doing great work on compassionate release

The latest decision, by Judge Alison Nathan, rips the absurd BOP policy of holding defendants for 14 days after release orders in “quarantine.”  The truth, of course, is that it’s not a quarantine at all and just places the defendant at further risk.  The judge — aligning herself with the majority of courts around the country — also says that exhaustion is not required.

Politico covers the opinion here:

A federal judge in New York has slammed the federal Bureau of Prisons for what she contends are “illogical” and “Kafkaesque” quarantine policies that put inmates and the community at greater risk of contracting coronavirus.

U.S. District Court Judge Alison Nathan, in a decision dated Sunday, excoriated federal officials over their practice of putting inmates considered or approved for early release into a pre-release quarantine before they are sent home. The period typically lasts 14 days, but the judge noted that it can be extended, potentially repeatedly, if another inmate in the same group tests positive for the virus.

Nathan delivered the stinging rebuke of the federal prisons’ policy as she ordered the immediate release of Gerard Scparta, a former New York Police Department officer who pleaded guilty last year to involvement in a Social Security disability fraud scheme.

“In these circumstances, community spread through individuals not showing symptoms is inevitable, including in units of inmates who have been approved for home confinement,” Nathan wrote. “This is an illogical and self-defeating policy that appears to be inconsistent with the directive of the Attorney General, ungrounded in science, and a danger to both Mr. Scparta and the public health of the community.”

***

“Mr. Scparta is currently stuck in the bizarre limbo of the Bureau of Prisons’ quarantine policy, which, as the Court has discussed, achieves the backward result of prolonging incarceration and increasing community spread,” she added.

SCOTUS updates

1.  The Supreme Court ruled this morning that juries must be unanimous.  You'd think this one would be unanimous from the Justices, but it was 6-3.  Alito wrote the dissent (no surprise), but Roberts and Kagan joined him on stare decisis grounds.

2.  The Court also granted cert from this 11th Circuit case (Van Buren) on the following issue:

Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.

 Judge Rosenbaum wrote the opinion (joined by Martin and visiting judge Boggs), which starts this way:

Perhaps Dudley Field Malone said it best when he opined, "One good analogy is worth three hours’ discussion."* Or in this case, 15 pages of discussion. See infra at pp. 1199–205.

 Take, for example, this case.

"[A] lawsuit before a court" is a pretty big deal to most people. But a generic "question" or "matter," in common usage, maybe not so much.

That impression may change, though, if we clarify what we mean by "question" or "matter" in a specific context by analogizing to something else. So if we say that, for our purposes, to qualify as a "question" or a "matter," the question or matter must be of the same significance or scope as "a lawsuit before a court," a person would understand that we are not talking about just any old question or matter; we are referring to only questions or matters on the same scale as "a lawsuit before a court." To use a metaphor, the analogy here is a bridge to understanding.

In this case, though, that bridge was never built. The government charged Nathan Van Buren with honest-services fraud (through bribery) for undertaking an "official act" in his capacity as a police officer, in exchange for money. At the close of the evidence, the district court instructed the jury that an "official act" is a decision or action on a "question" or "matter." But it did not inform the jury that the "question" or "matter" in this context must be comparable in scope to a lawsuit, hearing, or administrative determination. The jury convicted Van Buren.

Since the jury was not instructed with the crucial analogy limiting the definition of "question" or "matter," and because the government itself did not otherwise provide the missing bridge, we cannot be sure beyond a reasonable doubt that the jury convicted Van Buren of the offense that Congress criminalized when it enacted the honest-services-fraud and bribery statutes. For this reason, we must vacate Van Buren’s honest-services-fraud conviction and remand for a new trial on that count. Van Buren was also charged with and convicted of computer fraud, and we affirm that conviction.

*Richard Nordquist, The Value of Analogies in Writing and Speech , ThoughtCo., https://www.thoughtco.com/what-is-an-analogy-1691878 (last visited Oct. 8, 2019). Along with Clarence Darrow, Dudley Field Malone defended John Scopes in the 1925 "Scopes Trial," formally known as State v. Scopes . Scopes Trial , Encyclopaedia Britannica, https://www.britannica.com/event/Scopes-Trial (last visited Oct. 8, 2019) ("Scopes Trial "); Malone’s Trial Speech (Full Text) , Historical Thinking Matters, http://historicalthinkingmatters.org/scopestrial/1/sources/44/fulltext/ (last visited Oct. 8, 2019) ("Malone’s Trial Speech "). In that case, Tennessee, led by William Jennings Bryan, prosecuted Scopes for allegedly teaching evolution at a Tennessee high school. Scopes Trial . Scopes was convicted and fined $100. Scopes v. State , 154 Tenn. 105, 289 S.W. 363, 367 (1927). The Tennessee Supreme Court then vacated the judgment since Tennessee law required a jury—not a judge—to assess any fine of more than $50.00, but in Scopes’s case, the trial judge had done so. Id. The Tennessee law Scopes was accused of violating was ultimately repealed in 1967. Scopes Trial .

Updated BOP and FDC-Miami numbers

As of 04/18/2020, there are 479 federal inmates and 305 BOP staff who have confirmed positive test results for COVID-19 nationwide.

There are 5 staff members at FDC-Miami who have tested positive.

The good news -- no clients in custody have tested positive at FDC-Miami.

The bad AND ABSURD news -- FDC-Miami has not tested one inmate!  You read that right -- none of the inmates have been tested for COVID-19.  Instead, FDC-Miami is doing taking random temperatures twice a week.  Truly unbelievable.

Friday news and notes

1. The Herald is doing a lot of good reporting on the awful conditions in Florida prisons and what judges and lawyers are doing to help folks.

2. Michael Cohen was released. (So was Avenatti).

3. But more needs to be done. From the Brennan Center for Justice.

4. From Professor Berman's blog, check out these numbers which are now dated:

To provide some context for these number, consider that the federal inmate population is "only" 175,000, and yet there are already 13 official COVID deaths within the federal inmate population [as of 4/13; this number is now way higher]. This is more COVID deaths than are being reported right now by the Worldometer accounting in seven distinct US states: Wyoming (population nearly 600,000), Alaska (nearly 750,000), North Dakota (nearly 800,000), South Dakota (nearly 900,000), Montana (over 1 million), Hawaii (nearly 1.5 million), and West Virginia (population nearly 1.8 million). This is also more COVID deaths than are reported right now by the Worldometer accounting in countries such as Qatar (population nearly 3 million), New Zealand (nearly 5 million), Slovakia (nearly 5.5 million) Singapore (over 5.5 million).

Judge Goodman orders ICE to release corona numbers

Well done!

The Herald has the story here:

A federal magistrate judge in Miami has ordered U.S. immigration officials to disclose how many of its detainees and third-party contractors at three South Florida detention centers have tested positive for coronavirus.

The court order was issued Tuesday night following a Miami Herald story that revealed U.S. Immigration and Customs Enforcement did not consider its contractors ICE “staff,” and that the agency said it had no obligation to include them on its website detailing how many employees at its detention centers nationwide had contracted the virus. The Herald also reported that the agency got around having to disclose that a Miami detainee was sick with COVID-19 because the detainee was technically no longer at the detention center, but rather at a hospital. All three detention centers in South Florida are operated by third-part contractors.

“That isn’t something we have to provide,” the agency said, later noting that ICE’s role isn’t to publish or discuss information about a third party.

The Herald’s reporting was cited in a federal lawsuit filed in Miami federal Court Monday seeking the release of detainees at three South Florida detention centers. As part of the case — filed by immigration advocates against ICE and the U.S. Attorney General— Magistrate Judge Jonathan Goodman ordered that the government file the previously undisclosed information by Friday.

As of Wednesday morning, ICE says only 21 of its employees have tested positive. However, that does not include third-party contractors that operate at least 217 of its 222 detention centers nationwide.

“The purpose of the declarations is to provide the Court with information, and the information should be comprehensive and not limited by technicalities, such as whether a guard or officer is a government employee or an employee of a third-party contractor or contracting vendor,” Goodman said in his order. “For purposes of gauging the health risk to detainees, it matters little whether a COVID-19-infected guard or officer receives a paycheck from the United States or from Akima (or some other company).”

Akima Global Services is the government contractor that operates ICE’s Krome detention center in Miami-Dade. Last week, the Herald reported that two guards had contracted the virus, and that at least 60 others had been sent home to wait for test results or to quarantine.

In the magistrate judge’s order, Goodman specified that “staff members” is not limited to actual ICE employees or employees of the United States or one of its agencies or departments.

“To the contrary, it is designed to encompass anyone and everyone who works at the three facilities — including, by way of example, employees of third party contractors who provide services and personnel to the detention centers,” he said.

He continued: “Thus, to provide one specific illustration, if a company, such as Akima, provides services or employees at the Krome detention facility, then Akima employees who work as guards (or nurses or counselors or administrative aides or any other position at the detention center) would be included in the term ‘staff members.’ This same definition applies for all three detention centers.”

Goodman told ICE that if the clarification required them to obtain information from its contractors, “then so be it. The point is, I don’t want to be on the short end of the information stick.”