The Injustices of Time: Rights, Race, Redistribution, and Responsibility

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Zinaida Miller is an Assistant Professor of International Law & Human Rights, School of Diplomacy and International Relations at Seton Hall University.

Resurgent debates in U.S. law and politics over reparations and racialized inequality reflect what this Article argues is a significant transnational legal phenomenon: courts, policymakers, and social justice advocates mobilizing pasts of racial and ethnic violence and dispossession to justify competing rules for the distribution of resources and power today. In the United States., South Africa, Canada, and Israel/Palestine, significant legal and political battles revolve around the relationships among past, present, and future. Judges and advocates identify progress from or rupture with the past; embrace or reject institutions intended to record and resolve past events; and attempt to silence or center past violence when interpreting rights in the present. In the U.S., arguments about whether and how slavery is relevant to contemporary racialized inequalities arise in litigation around affirmative action and reparations. These debates contest not the horror of that past but rather its linkage with the beneficiaries of racial privilege today given the passage of time and the formal legal end of slavery and segregation. In South Africa, a critical fault line has emerged between those who view the Truth and Reconciliation Commission, the post-1994 Constitution, and Constitutional Court judgments as representative of a flawed but foundational break with the atrocious past and those who assert that today’s radical, racialized inequalities derive from legal and constitutional continuities with the colonial and apartheid pasts. In Canada, recent public debates over the legal definition of genocide revealed tensions over the distribution of resources and power between Indigenous and settler Canadians. The question of whether genocide ended or continues represents a fundamental contest over the material consequences of colonialism in the present. The final case study examines the evasion of the past in the Oslo Accords and its subsequent effects on the structure of Israeli-Palestinian relations. While the predominant argument held that engaging the past would only provoke further conflict, activists and advocates countered that the radically unequal distribution of territory, population, and power in the present can be understood only in relation to past violence and dispossession. Together, the case studies reveal the material stakes of legal and political assertions of the resolution, distance, reproduction, legacy, afterlives, or erasure of racialized violence and dispossession.

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Criminal Responsibility for the COVID-19 Pandemic in Syria

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Roger Lu Phillips is the Legal Director of the Syria Justice and Accountability Centre (SJAC) where he leads the organization’s efforts in support of Universal Jurisdiction prosecutions of Syrian war crimes as well as the organization’s data analysis and documentation teams. He is an Adjunct Lecturer in international criminal law at Catholic University’s Columbus School of Law. Previously, he served as a UN legal officer at the Khmer Rouge Tribunal and the International Criminal Tribunal for Rwanda. He is a graduate of American University’s Washington College of Law and a member of the D.C. and Colorado Bars.

Layla Abi-Falah holds a juris doctorate degree with a concentration in International Law and a B.A. in International Relations with a concentration in Human Rights in the Middle East & Africa from the College of William & Mary. Layla has had the privilege of working on human rights issues across the Middle East, Sub-Saharan Africa, and Eastern Europe, working most recently as a legal consultant, fellow, and intern for Roads of Success, SJAC, the UN International Residual Mechanism for Criminal Tribunals, and the USAID Jordan CITIES Project.

Since the beginning of the Syrian conflict in 2011, the Syrian
government has bombed healthcare facilities, attacked healthcare
workers, and diverted humanitarian medical aid. These attacks not only
decimated hospitals and led to numerous fatalities, but they also crippled
Syrian healthcare capacity, leaving the country entirely unprepared to
address the COVID-19 pandemic. Health experts now estimate that an
unmitigated COVID-19 outbreak in Idlib, the last redoubt of the
opposition, could result in the deaths of up to one hundred thousand
persons—a situation that would not have arisen but for the Syrian
government’s campaign of violence against healthcare.

The Syrian government’s attacks on health facilities are well-
documented and were condemned in a series of reports issued by
United Nations entities, journalists, and non-governmental organizations.
But the death and suffering caused by these attacks is not fully
encompassed by reference to direct casualties alone. Thousands of
Syrians have been deprived of routine medical treatment for acute
illnesses as well as communicable diseases as a result of a deliberate
strategy of eradicating access to healthcare. This Article examines
whether individuals may be held criminally liable for the Syrian government’s campaign of violence against healthcare, which has led to
the death and suffering of the Syrian people through injuries and
illnesses, including COVID-19. By examining the concept of dolus
eventualis
, the Article concludes that the Syrian government’s acts and
omissions in furtherance of a policy to attack healthcare constitute
numerous crimes against humanity and war crimes, including murder
and extermination.

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Righting the Scales of Justice: The Critical Need for Contempt Proceedings Against Lawless Landlords

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Armen H. Merjian is a civil rights and poverty lawyer at Housing Works, Inc., the largest provider of HIV/AIDS services in the State of New York, and the Legal Director of the HIV Law Project, Inc.

In his Pulitzer Prize-winning book Evicted, Matthew Desmond demonstrates that lack of safe and stable housing, a fundamental human right, “is among the most urgent and pressing issues facing America today.” Yet, although more than one in three Americans (over one hundred million individuals) live in rental housing, landlord/tenant law is largely neglected in the scholarly literature. This Article is the first to address the use of contempt to enforce court orders to repair hazardous conditions. Hazardous living conditions affect millions of renters nationwide, and disproportionately affect communities of color and low-income individuals. This Article reviews the profound imbalance in power in the housing courts of New York, America’s largest city, and reveals that what was conceived as a forum to ensure safe and habitable housing has become a collection and eviction service for landlords. It is a system that, between 2011 and 2016, yielded 117,952 evictions, yet fewer than fifty contempt rulings for failure to obey court orders to repair hazardous conditions; this, despite landlords’ chronic and widespread flouting of such orders. The Article contends that rather than merely returning to court over and over for the reissuance of orders to repair, courts and practitioners must initiate contempt proceedings. The Article demonstrates, finally, how such proceedings can remedy this injustice, including (1) establishing deadlines for the completion of ordered repairs, with either imprisonment or fines for each day that the landlord continues to flout the court’s authority; (2) awarding damages to the aggrieved tenant, including damages for emotional distress and diminished habitability; and (3) awarding attorneys’ fees and costs to tenants’ counsel.

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Unwilling or Unable? The Failure to Conform the Nonstate Actor Standard in Asylum Claims to the Refugee Act

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Charles Shane Ellison is a Senior Lecturing Fellow at the Immigrant Rights Clinic at Duke Law School.

Anjum Gupta is a Professor of Law, Judge Chester J. Straub Scholar, and Director of the Immigrant Rights Clinic at Rutgers Law School.

Pursuant to its obligations to the international community, the United States provides asylum to individuals fleeing persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” For decades, both the Board of Immigration Appeals and federal courts recognized that individuals could obtain asylum based on a fear of persecution at the hands of nonstate actors, so long as the applicant demonstrated that their government was “unable or unwilling” to control the persecution.

As part of a wide-ranging attack on asylum, the Trump administration has sought to eliminate asylum based on nonstate actor persecution. In June 2018, the Attorney General (“AG”) issued a sweeping decision, Matter of A-B-, vacating a 2014 decision in which the Board of Immigration Appeals had held that those fearing domestic violence could obtain asylum relief. Among other things, the decision heightened the nonstate actor standard, requiring that applicants not only show that their governments were “unwilling or unable” to control the persecution, but also that the governments “condoned” or were “completely helpless” to stop the persecution.

After Matter of A-B- was decided, federal courts have disagreed as to which standard to apply, or, indeed, whether the two tests differ at all. Courts in some circuits found the two standards to be different and held that the change to heighten the nonstate actor test was arbitrary and capricious. Other courts held that the condone-or- completely-helpless formulation was merely a permissible interpretation of the familiar unwilling-or-unable standard.

In response, on January 14, 2021, the Acting AG issued Matter of A-B- II, redoubling the defense of the condone-or-complete-helplessness articulation and evoking the agency’s Chevron and Brand X authority to combat decisions from the courts of appeals that had rejected Matter of A-B- I. The Acting AG claimed that the condone-or-complete-helplessness articulation was not a departure from the older unable-or-unwilling test, but he argued that even if it was a change in policy, it constituted a reasonable construction of the ambiguous statutory term “persecution.” In his elaboration of the condone-or-complete-helplessness standard, however, the Acting AG revealed that the new test is vastly more difficult to satisfy. He concluded that any state effort to protect victims—including even the most minimal effort—is sufficient to deny asylum protections.

This Article provides the first systematic analysis of the impact of the heightened nonstate actor test in cases before both the Board of Immigration Appeals and federal courts. We argue that the two tests are, in fact, different by analyzing the plain language they employ as well as the divergent case outcomes they have produced. Then, rather than ground the nonstate actor standard in the term “persecution,” we anchor the standard in the statutory language defining refugees as those who are “unable or unwilling to avail [themselves] . . . of [state] protection,” a strangely ignored part of the U.S. asylum statute and international treaty. This novel theory has yet to be considered by the courts, but it demonstrates that the unwilling-or-unable test is the correct one. The heightened condone-or-complete-helplessness standard, by contrast, is antithetical to the protections afforded by the statute and treaty and poses an insurmountable hurdle for many of the world’s most vulnerable refugees.

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Charting Global Economic Inequalities and Emancipatory Human Rights Responses from the Ground Up: The Tea Workers’ Movement of Bangladesh

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Chaumtoli Huq is a Associate Professor at CUNY School of Law.

Tea workers in Bangladesh, a workforce created by the indentured labor system under British colonialism and whose exploitation is maintained by existing laws, have been mobilizing against the threatened seizure of the land that they cultivate for sustenance in order to create a special economic zone to attract foreign investors. Because it was the government of Bangladesh, rather than a multinational corporation, that was threatening to forcibly acquire the land, the tea workers’ movement did not draw popular attention as a global labor and human rights struggle, revealing that marginalized communities often do not have any legal recourse to challenge their displacement where nation-states collaborate with global capital. Using the tea worker movement as a case study, this Article examines the ways in which national and international legal structures and economic policies facilitate the entry of global capital in subnational spaces, threatening the displacement of marginalized communities and creating further economic inequality. Further, this Article reveals how neither domestic law nor international human rights law is adequate to address these harmful impacts of globalization. Thus, it posits that international human rights lawyers must develop legal responses to counter the harmful impacts of globalization. Using a socio-legal research methodology, this Article explores the possibilities of legal responses from the ground up that articulate new human and labor rights for workers. Finally, this Article shows how the tea workers’ movement of Bangladesh offers valuable lessons to other marginalized communities who are impacted by globalization and provides possibilities for mobilization around an alternative vision of how our laws and economies can be organized.

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Losing the Freedom to Be Human

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Evelyn Mary Aswad is the Herman G. Kaiser Chair in International Law and the Director of the Center for International Business & Human Rights at the University of Oklahoma College of Law. Previously, she served as the director of the human rights law office at the U.S. State Department from 2010–2013

In 2019, Apple’s CEO warned that contemporary business models, which are based on harvesting our personal data and monetizing everything we do online, violate our privacy and will eventually cause us “to lose the freedom to be human.” Others have taken this privacy concern a step further by questioning whether these business models undermine mental autonomy, i.e., the ability to think and form opinions. The burgeoning chorus of concerns has triggered a variety of high-profile calls to explore whether international human rights law protects against intrusions on the inner sanctum of one’s mind, particularly with respect to the business models of global platforms such as Amazon, Facebook, and Google.

This Article provides the first in-depth scholarly examination of the scope of the right to “hold opinions without interference,” which is enshrined in Article 19(1) of the International Covenant on Civil and Political Rights (ICCPR). Because it was generally assumed that this right to think and form opinions could not be violated, it has been overlooked to date, and there is little jurisprudence available to define its scope. In response to calls for scholarly engagement to help define this right, this Article examines the text of the ICCPR, its negotiating history, the works of respected jurists, and the views of the United Nations human rights machinery.

The Article concludes that the right to hold opinions without interference includes protection against disclosure of one’s opinions, manipulation in the forming and holding of opinions, and penalization for one’s opinions. The Article assesses how contemporary business models grounded in capturing our attention, harvesting our personal information, and then monetizing that information may infringe this right. Using the corporate responsibility framework embodied in the U.N. Guiding Principles on Business and Human Rights, the Article concludes by recommending paths forward to promote respect for the right to hold opinions without interference in the digital age.

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Locked Out by Big Data: How Big Data, Algorithms, and Machine Learning May Undermine Housing Justice

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Valerie Schneider is the Associate Professor of Law, Howard University School of Law. She received her J.D. from George Washington University Law School and her B.A. from the University of Pennsylvania.

As housing-related decisions are increasingly being made by algorithms instead of individuals, it is critical that the technologies used to make those decisions do not replicate or even worsen patterns of discrimination and segregation. While it may be convenient to believe that bias can be eliminated by putting decision-making authority in the hands of machines instead of people, studies have shown that technologies such as algorithms and machine learning are often infected with bias.

Provisions of the Fair Housing Act (“FHA”) and its accompanying regulations that protect individuals from discriminatory algorithms are under attack from the Department of Housing and Urban Development (“HUD”), the agency responsible for enforcing the FHA. In particular, HUD recently issued a proposed rule that, if enacted, would undermine disparate impact jurisprudence and specifically exempt many housing providers who rely on algorithms developed by third parties. With the FHA under attack from the agency charged with its enforcement, it is particularly important to study how technological advancements might be used to either improve or undermine the law’s effectiveness.

This article describes the advent of big data, algorithmic decision-making, and machine learning, as well as HUD’s recent proposal to specifically immunize housing providers who rely on algorithms from disparate impact liability. It then discusses how the use of big data and algorithmic decision-making has touched all parts of the rental housing market, from advertising to tenant selection processes. Finally, it offers policy prescriptions that could help mitigate the discriminatory impacts of algorithmic decision-making in ways that are aligned with the FHA or, in some cases, that reach further than the protections currently offered under the FHA.

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Complicity of International Financial Institutions in Violation of Human Rights in the Context of Economic Reforms

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Juan Pablo Bohoslavsky is the coordinator of the postgraduate program on “Public policies and human
rights in Covid-19 times,” Universidad Nacional de Río Negro, Argentina. Previously, he was the United Nations Independent Expert on Foreign Debt and Human Rights (June 2014–May 2020).

This Article demonstrates that the introduction of austerity measures does not contribute to economic recovery, but instead has negative consequences in terms of economic growth, debt ratios, and equality, and routinely results in a series of negative human rights impacts. There is therefore a solid legal basis to make the case for a prima facie inconsistency between the imposition of austerity policies in times of recession and the enjoyment of human rights.

Because of the circumstances in which States usually find themselves when seeking assistance from international financial institutions, lender institutions often impose conditionalities that have not necessarily been negotiated with borrower States. States’ populations are even less involved than their governments in the associated consultations, discussions, or negotiations. The broad scope of such conditionalities, which has been continuously expanded over recent decades, helps to explain their pervasiveness and omnipresence in key sovereign businesses. These conditionalities are even seen in the context of the COVID-19 pandemic.

According to standards of international law, international financial institutions may be held responsible for complicity in the imposition of economic reforms that violate human rights. The causal link between the assistance provided by international financial institutions (in the form of loans, surveillance and technical assistance, and attached conditionalities) in the commitment of an internationally wrongful act (complicity) and the harm done (human rights violations) is evident and well documented. An institution’s knowledge of the wrongful nature of the act can be presumed if, even when advancing the implementation of economic reforms that normally lead to human rights violations, no ex ante impact assessment is undertaken. Legal responsibility for complicity raises obligations in terms of cessation, non-repetition, and reparation.

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An Inherent Right to Health: Reviving Article II(C) of the Genocide Convention

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Adi Radhakrishnan is a member of the Columbia Law School Class of 2021.

Modern discourse on the Genocide Convention focuses primarily on cases of mass murder characterized by the overt targeting and persecution of a protected group, with the genocides in Rwanda and Bosnia serving as the contemporary paradigms. Notably, however, only one of the five provisions in Article II of the Convention, which defines the acts that constitute genocide, addresses mass killings. Of particular relevance, the “conditions of life” provision, Article II(c), has been neglected in scholarship and doctrinal development, ultimately falling out of the scholarship on genocide. As a result, numerous atrocity crimes have been relatively ignored over the last half-century that the Convention has been in force, even when they warranted scrutiny or preventive action by the international community.

This Note aims to address the currently narrow application of the Convention by reviving Article II(c). It will analyze the intent and origin behind the Genocide Convention by surveying the negotiating history of the Convention and examining one of the first petitions submitted to the United States to enforce Convention obligations, as well as subsequent genocide case law, in order to uncover the legal history of Article II(c). From this history, this Note argues that since its inception, the Article II(c) provision has encompassed a robust right to health protection that has gone largely unrecognized in its current application. This Note then incorporates the original intent and understanding of Article II(c) into a framework that aligns with both the enumerated definition of genocide as well as any prevention obligations States hold under the Responsibility to Protect doctrine and the treaty itself. This framework is ultimately applied to the Uyghur Muslim Crisis in Western China to demonstrate how returning to the original protectionist scope of Article II(c) can assist practitioners and advocates in addressing atrocity crimes.

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In Search of Judicial Compassion: The Cantu-Lynn Divide over Compassionate Release for Federal Prisoners

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Marielle Paloma Greenblatt is a member of the Columbia Law School Class of 2021.

Kevin Zeich was nearly blind, battling terminal cancer, and unable to eat or walk when he filed for compassionate release from federal prison in 2015.[2] Zeich, who was fifty-five at the time, had served twenty-four years of a twenty-seven-year non-violent drug sentence for distribution of methamphetamine. Though he had three years remaining on his sentence, prison doctors believed he had only eighteen months left to live.[3] Upon being diagnosed with advanced bile duct cancer, Zeich applied for compassionate release three times. Zeich’s warden approved one of his requests, but federal Bureau of Prisons (“BOP” or “the Bureau”) officials overrode his approval and rejected his claim, arguing that his life expectancy was “indeterminate.”[4] On Zeich’s fourth try, he was granted compassionate release. He died two days before he was set to head home.[5]

Between 2013 and 2017, the Bureau of Prisons[6] received 5,400 requests for compassionate release from people in federal prison[7] but approved just 6% of them, taking an average of 141 days to make a decision.[8] These delays proved deadly: 266 prisoners, nearly 5% of all applicants, died while waiting for the BOP’s answer.[9] In 2013, a Department of Justice (“DOJ”) report found that the BOP lacked basic timeliness standards for reviewing initial compassionate release requests.[10] The appeals process for individuals denied compassionate release was similarly unregimented: the Bureau failed to consider urgent or special medical circumstances in expediting appeals, even when applicants had life expectancies of less than one year.[11] The DOJ report found that the appellate review process for compassionate release requests could take more than five months to complete.[12]

Given these realities, scholars as well as government watchdog groups have long suggested that compassionate release would benefit from judicial oversight of BOP determinations.[13] In particular, some scholars urged legislative reform to permit people in prison to seek direct review of their compassionate release claims before Article III courts.[14]

On December 21, 2018, Congress empowered Article III judges to overrule the BOP’s compassionate release determination for the first time. The 116th Congress passed and the President signed the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act (“the First Step Act” or “the FSA”), which included a number of significant changes to federal compassionate release.[15] The FSA alters compassionate release in two ways: first, it gives prisoners the power to appeal the BOP’s denial or neglect of the prisoner’s request for a compassionate release directly to their sentencing court, providing federal district courts the ability to review and overrule BOP decisions for the first time.[16] Second, the Act gives judges newfound discretion to grant release under a catch-all “other reasons” provision. Clemency experts have deemed the Act’s catch-all provision “the hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention”;[17] indeed, scholars have yet to analyze how U.S. district courts are interpreting and applying the catch-all.

Though it is only in its second year, the Act’s changes to compassionate release have transformed federal prison resentencing. Nearly three times more defendants were granted relief in the first nine months of 2019 alone than in all of 2018.[18] As of October 2020, approximately 1,800 federal prisoners have been granted compassionate release since the FSA’s passage, with the overwhelming majority coming from judicial approvals overturning BOP denials.[19] Many district court judges have responded quickly to their new role under the Act, with some granting relief within just a few days of prisoners’ requests.[20] The COVID-19 epidemic only heightened judicial responsiveness to compassionate release claims, with some judges taking extraordinary efforts, including bypassing time length and exhaustion requirements, in order to release prisoners more quickly.[21]

Yet there is an emerging circuit split between the courts that construe this newfound discretion broadly and those that continue to grant compassionate release only in cases of terminal or debilitating illness.[22] Moreover, the courts that construe their discretion more expansively (which this paper calls “Cantu courts”) continue to use the catch-all “other reasons” provision to grant relief.[23] Cantu courts stand in marked disagreement with the courts construing their discretion narrowly (“Lynn courts”), which have continued to adhere strictly to preexisting policy guidance by federal agencies.[24]

This Note examines the Cantu-Lynn doctrinal split and its implications for the United States’ federal prisoners. The analysis proceeds in three parts. First, Part I considers how the Act altered compassionate release by authorizing courts to engage in BOP oversight and to grant relief to deserving defendants. Part II examines the emerging circuit split concerning whether federal district courts have license to consider an expansive range of factors under the First Step Act. Part II then provides data on the key factors and judicial outcomes across U.S. courts evaluating compassionate release claims. Part III provides a close reading of the Act’s statutory text and builds off of Shon Hopwood’s historical research into “second look” resentencing, ultimately concluding that the Cantu approach to compassionate release criteria best serves Congress’s statutory intent in enacting the FSA. Finally, the Conclusion considers how the Cantu construction could reduce recidivism and promote rehabilitation among America’s federal prisoners.

  1. * J.D. Candidate 2021, Columbia Law School. The author would like to thank Professor Daniel Richman and Professor Shon Hopwood, as well as the staff of the Columbia Human Rights Law Review for their thoughtful work on this piece.
  2. .  Christie Thompson, Frail, Old and Dying, But Their Only Way Out of Prison Is in a Coffin, N.Y. Times (Mar. 7, 2018), https://www.nytimes.com/
    2018/03/07/us/prisons-compassionate-release-.html (on file with the Columbia Human Rights Law Review).
  3. .  Christie Thompson, Old, Sick, and Dying in Shackles, Marshall Project (Mar. 7, 2018), https://www.themarshallproject.org/2018/03/07/old-sick-and-dying-in-shackles [https://perma.cc/J5QU-PCLG].
  4. .  Id.
  5. .  How Much Compassion in ‘Compassionate’ Release?, WNYC Studios: The Takeaway (Mar. 19, 2018), https://www.wnycstudios.org/podcasts/takeaway/
    segments/despite-compassionate-relief-program-prisoners-find-little [https://perma.cc/MUR2-EYYU].
  6. .  The BOP, with “over 163,000 people in [its] custody . . . is America’s largest jailer,” making its bureaucratic decisions and leadership particularly worthy of study. Keri Blakinger & Keegan Hamilton, “I Begged Them to Let Me Die”: How Federal Prisons Became Coronavirus Death Traps, Marshall Project (Jun. 18, 2020), https://www.themarshallproject.org/2020/06/18/i-begged-them-to-let-me-die-how-federal-prisons-became-coronavirus-death-traps [https://perma.cc/DZ6G-YS4P].
  7. .  Although this Note focuses exclusively on federal compassionate release, state prisoners also have access to compassionate release through their parole systems, almost all of which include some provision for compassionate release of terminally ill defendants. See Marjorie P. Russell, Too Little, Too Late, Too Slow: Compassionate Release of Terminally Ill Prisoners—Is the Cure Worse Than the Disease?, 3 Widener J. Pub. L. 799, 816–36 (1994) (reporting that, in a 50-state and federal survey, Russell found that the federal system is by far the most restrictive for ill prisoners). Because the First Step Act covered only federal reform, state prisoners’ experiences are not included in this analysis, though they represent the vast majority of those imprisoned in the U.S. today.
  8. .  Letter from Stephen E. Boyd, Assistant Att’y Gen., U.S. Dep’t of Just., Off. of Legis. Aff., to Sen. Brian Schatz, at 1 (Jan. 16, 2018), https://www.themarshallproject.org/documents/4369114-1-2018-BOP-response [https://perma.cc/RZH3-XSZH].
  9. .  Thompson, supra note 2, at 6 (presenting empirical findings).
  10. .  See Off. of the Inspector Gen., U.S. Dep’t Of Just., The Federal Bureau of Prisons’ Compassionate Release Program 27–29 (2013) [hereinafter DOJ, BOP Compassionate Release Program] (finding that the BOP does not consider “the special circumstances of medical compassionate release requests” in timeliness standards, and further concluding that the BOP does not consistently expedite the administrative review process, even when inmates had less than a year to live).
  11. .  Id.
  12. .  Id.
  13. . See, e.g., Press Release, U.S. Sent’g Comm’n, U.S. Sentencing Commission Approves Significant Changes to the Federal Sentencing Guidelines (Apr. 15, 2016), https://www.ussc.gov/about/news/press-releases/april-15-2016 [https://perma.cc/C75F-NMHD] [hereinafter April 2016 Sentencing Press Release] (“[T]he BOP has failed to use its authority to recommend compassionate release in the past. We encourage BOP to use its discretion consistent with this new policy so that eligible applications are reviewed by a trial judge.”).
  14. .  See, e.g., Paul J. Larkin, Jr., Revitalizing the Clemency Process, 39 Harv. J.L. & Pub. Pol’y 833, 912–13 (2016) (suggesting that Congress “eliminate the provision barring a district court from considering a compassionate release petition unless the BOP has asked the court to consider it . . . [because] the recidivism rate for federal prisoners granted compassionate release is far lower than the rate for other federal inmates”).
  15. .  See Shon Hopwood, The Effort to Reform the Federal Criminal Justice System, 128 Yale L.J.F. 791, 795, 816–17, n.114 (2019).
  16. .  Families Against Mandatory Minimums, Compassionate Release and the First Step Act: Then and Now 3, https://famm.org/wp-content/uploads/Compassionate-Release-in-the-First-Step-Act-Explained-FAMM.pdf [https://perma.cc/PZH6-8SY3].
  17. .  RJ Vogt, How Courts Could Ease the White House’s Clemency Backlog, Law360 (Aug. 29, 2019), https://www.law360.com/articles/1191991/how-courts-could-ease-the-white-house-s-clemency-backlog [https://perma.cc/733W-87LE] (reporting on the statement of Margaret Love, former U.S. pardon attorney and clemency expert).
  18. .  Oversight of the Federal Bureau of Prisons and Implementation of The First Step Act of 2018: Hearing Before the H. Judiciary Comm. Subcomm. on Crime, Terrorism, and Homeland Sec., 116th Cong. 23–25 (2019) (statement of Antoinette Bacon, Associate Deputy Att’y Gen.) (announcing that, as of October 2019, 109 prisoners had been granted compassionate release, compared to just 34 total in 2018); Dep’t of Just., Department of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk and Needs Assessment System (2019) (discussing the FSA’s impact in its first six months).
  19. .   The 1,800 number comes from two sources: DOJ reports for 2019 and the Marshall Project’s 2020 reporting. Press Release, Dep’t of Justice, Department of Justice Announces Enhancements to the Risk Assessment System and Updates on First Step Act Implementation (January 15, 2020) (announcing that, as of January 2020, “124 requests have been approved, as compared to 34 total in 2018.”); Keri Blakinger & Joseph Neff, Thousands of Sick Federal Prisoners Sought Compassionate Release. 98 Percent Were Denied, Marshall Project (Oct. 7, 2020), https://www.themarshallproject.org/2020/10/07/thousands-of-sick-federal-prisoners-sought-compassionate-release-98-percent-were-denied [https://perma.cc/YQG4-SL95] (“So far, more than 1,600 people have been let out on compassionate release since the start of the pandemic—many of them despite the bureau’s best efforts to thwart them.”); Off. of Sen. Dick Durbin, Durbin, Grassley Introduce New Legislation New, Bipartisan Legislation To Reform Elderly Home Detention And Compassionate Release Amid COVID-19 Pandemic (Jun. 23, 2020), https://www.durbin.senate.gov/newsroom/press-releases/durbin-grassley-introduce-new-bipartisan-legislation-to-reform-elderly-home-detention-and-compassionate-release-amid-covid-19-pandemic [https://perma.cc/5APJ-N48Y] (noting that “nearly all [compassionate release approvals have been] by court order over the objections of the Department of Justice and BOP.  BOP has reportedly refused to approve any compassionate releases based on vulnerability to COVID-19.”).
  20. .  Carrie Johnson, Seriously Ill Federal Prisoners Freed as Compassionate Release Law Takes Effect, NPR News (Mar. 15, 2019), https://www.npr.org/2019/03/15/703784886/seriously-ill-federal-prisoners-freed-as-compassionate-release-law-takes-effect [https://perma.cc/PSN6-M4JV].
  21. . United States v. Sanchez, No. 18-cr-00140-VLB-11, 2020 U.S. Dist. LEXIS 70802, at *10–11 (D. Conn. Apr. 22, 2020) (granting relief despite prisoner’s failure to exhaust administrative requirements within the BOP because “the Court finds it has the discretion to waive the 30-day waiting period where strict enforcement would not serve the Congressional objective of allowing meaningful and prompt judicial review. The immediate case, where each day threatens irreparable harm to a uniquely susceptible defendant, calls for such a waiver.”); United States v. Decator, No. CCB-95-0202, 2020 U.S. Dist. LEXIS 60109 (D. Md. Apr. 6, 2020) (granting release on similar grounds); United States v. Colvin, No. 3:19cr179 (JBA), 2020 U.S. Dist. LEXIS 57962 (D. Conn. Apr. 2, 2020) (excusing failure to exhaust administrative remedies); cf. United States v. Field, No. 18-CR-426 (JPO), 2020 U.S. Dist. LEXIS 68655 (S.D.N.Y. Apr. 20, 2020) (noting that it cannot grant release outright due to failure to exhaust administrative remedies, but urging BOP to release prisoner outright because his preexisting conditions, including obesity, made him high-risk for COVID-19).
  22. .  See infra Section II.B.
  23. .  See infra Section II.A.
  24. .  See id.
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