Issue: 1 - Fall

People with disabilities sometimes have impairments that manifest in unacceptable and disruptive behavior, such as inappropriate language, angry outbursts, and conflict-generating harassment. Such behavior, which I call “impairment-related misconduct,” often leads to exclusion from work or public places. Notwithstanding the Americans with Disabilities Act’s goal of promoting the full and equal social participation of disabled people, legal challenges to those exclusionary responses have generally failed.

Using cases involving employees with Borderline personality disorder, this article criticizes this outcome as grounded in a conceptual conflation of duty and sympathy, which in turn arises from a tragic view of disability. It also offers an original approach to resolving these cases. Specifically, this article develops a novel category of reasonable accommodations for persons with disabilities. I call them “moral accommodations.” These are duties to tolerate, to various degrees, unacceptable behavior related to an impairment. They involve, for instance, giving people second chances, reassigning them to different positions or service providers, or exempting them from certain rules of conduct. Establishing the theoretical foundations for this new category, I argue that, like other reasonable accommodations moral accommodations are plausibly grounded in various conceptions of justice, most notably egalitarianism and the “capabilities approach.” I also address potential objections, both pragmatic and philosophical. For example, although misconduct causes harm to others, I argue that moral accommodations are nevertheless justifiable. By expanding the duties owed to persons with disabilities, moral accommodations develop our conception of a just society as one in which inappropriate behavior is sometimes tolerated.

This paper seeks to analyze the historical and political outcomes of the federal recognition process within the Bureau of Indian Affairs (BIA) and suggests that the BIA should eliminate the continuous existence requirement from that process. This paper also suggests that the BIA should consider ratifying state tribal recognition through an alternative criterion rather than the federal acknowledgment process. Without taking action, the current structure of recognition fails the United States’ duties to its Indigenous population and underscores its role in extinguishing the continuous existence of many Indian tribes.

Since they returned to power in August 2021, the Taliban are again imposing a regime of gender apartheid in Afghanistan in violation of international law, just as they did in the 1990s.  Given that it is pervasively discriminatory, gender apartheid poses specific human rights problems requiring particular, heightened responses. A system of governance based on subordination of women institutionalizes sex discrimination across state political, legal, and cultural infrastructures. It necessitates different counter-strategies.

This Article suggests conceptual architecture for analyzing and responding to this aspect of the current Afghan crisis.  Specifically, the robust international legal framework that helped end racial apartheid should be urgently adapted to address gender apartheid and concert the responses of other states to it. 

There are three principal arguments in favor of this approach. 1) It is essential for fulfilling states’ international legal commitments on sex discrimination across every document in the International Bill of Human Rights, as well as the specific target they affirmed in the Sustainable Development Goals to achieve gender equality by 2030. 2) Any other stance leads to an unacceptable imbalance in the manner in which international law addresses discrimination on the bases of sex and race. 3) This may be the only way to effectively tackle systematic Taliban abuses, as the organization is deeply committed to its violations of women’s rights and already sanctioned by the United Nations Security Council. Such an approach marshals the resources of the international community to constrain the Taliban, and is the best hope for ensuring the credibility, legitimacy and effectiveness of the international legal response.

In December 2021, following a year of sustained mass protests, farmers in India forced the repeal of three controversial Farm Laws that attempted to deregulate India’s agricultural sector in service of corporate interests. Farmers feared that the laws would dismantle price supports for key crops, jeopardize their livelihoods, and facilitate a corporate takeover of India’s agrarian economy. This Article situates India’s historic farmer protests in the context of the country’s longstanding agrarian crisis and the corporate capture of agriculture worldwide. I argue that the protests arose in response not only to the Farm Laws, but also to decades of state-sponsored ecological and economic violence that have relegated millions of Indian farmers to a state of precarity and desperation. I further argue that the protests hold key insights for social movements around the globe, and for the future of food in India and beyond.

The Article analyzes the farmers’ protests using a four-part paradigm to assess contemporary movements for social change: Roots, Resistance, Reform, and Reconstruction. In so doing, it makes several contributions to legal scholarship. First, it makes visible the lived realities of India’s rural masses who have been left behind amidst the country’s celebrated economic growth. Second, it reveals the many ways in which State violence manifests, and how that violence is mediated through agricultural policies. Third, it demonstrates the power of mass nonviolent resistance as a strategic tool to confront State violence. And fourth, it explores the tension between reform and revolution. I argue that the farmers’ reformist demands do not sufficiently address the ecological harms and caste-based inequities that underpin India’s agrarian crisis. But the movement’s building of broad-based alliances across caste and class has opened the door to more transformative change.

The phrase “legal name” appears everywhere. And wherever it appears, it seems to come with an assumption that it picks out one, clear such name for each person. So, do “legal” names as the phrase is commonly understood really exist? As far as federal and most state law is concerned, it turns out the answer is a clear no.

This article seeks to highlight the legal, moral, and philosophical wrongness of the notion that people have one uniquely identifying legal name. To do that, we survey the status of names in various legal domains, highlighting that legal consensus tends to be that there is no one “correct legal name” for individuals (if anything, people often have many “legal” names). We argue this common notion that every person has a single, clearly defined “legal” name is a kind of collective delusion we all seem to share (emerging somewhere in the late twentieth century), but is not grounded in legal or social reality. To address this harmful delusion, we present a series of ready-to-cite conclusions about the current state of the law and introduce a normative framework for how institutions and individuals ought to choose between people’s various legal names. Engaging with legal theory, feminist philosophy, and philosophy of language, we discuss the social function of names and argue that names enable people to communicate important social information about themselves—which can include their gender, religion, and familial relations. Thus, we conclude by arguing that individuals and legal institutions have a normative responsibility to respect peoples’ preferred legal names, thereby allowing them to authentically represent these facets of their social identities.

History is deeply embedded in federal Indian law. According to jurisprudence, Indians were nonagricultural “savages” prior to 1492. Indians’ supposed lack of sophistication played a vital role in foundational cases determining Indian rights and the extent of tribal sovereignty. The process of stare decisis has resulted in repetition of the principles formulated on the belief in Indian simplicity; consequently, historic ideas of Indians continue to impact present-day Indian rights—often for the worse. This is the time trap.

The time trap is the popular belief that Indian cultures were simple, non-commercial, hunter-gatherers prior to European arrival. Encapsulated within this belief is the idea that indigenous cultures are static and erode as they merge with mainstream society. However, this perception is incorrect: the indigenous peoples of North America had complex societies prior to 1492, including agriculture and expansive trade networks. Indian tribes organically incorporated previously unknown items from Europe, such as the horse and gun, into their cultures. This Article asserts that reexamining how society and the law view Indian history is the key to unlocking the time trap.

This Note considers the question of how to protect cultural property in an era of rising cyberwarfare. The Note argues that the law of armed conflict (LOAC)—also referred to as international humanitarian law (IHL)— should apply to protect the three categories of cultural property which cyberwarfare could affect: real-word cultural property, digitized cultural property (cultural property which has been converted into digital form), and digital cultural property (cultural property which has always existed in digital form). Lastly, this Note argues for a novel interpretation of the 1954 Hague Convention for the Protection for Cultural Property that would encompass digital and digitized cultural property.

At least 228 people executed in the modern era—or more than one in every seven—were right too soon. That is, they had claims in their case that today would render their execution unconstitutional, but were killed because of a legal regime that arrived too late. Roughly 30% of our total include the children and persons with intellectual disability who were executed prior to Roper v. Simmons and Atkins v. Virginia, respectively. But the great majority of the people identified in our study raised claims based on doctrine that had already been clearly established by the Supreme Court. If the lower courts had applied Supreme Court caselaw correctly, these people would have gotten relief. Yet the lower courts resisted the doctrine and for years the Supreme Court did nothing to correct them. This resistance was particularly egregious in Texas and Florida. In Texas, at least 108 people were executed after the Supreme Court had already established the relevant basis for relief, and in Florida, the total is at least 36. At least when it comes to the death penalty, the lower courts seem especially unwilling to follow Supreme Court doctrine that would save a person from execution. The result is a system that routinely kills people even when they are right.

Each year, employers bring hundreds of thousands of temporary foreign workers into the United States only to return them to their communities of origin when their visas end. During their short months working in the United States—whether in agricultural fields, hotels, traveling carnivals, or private homes—many of these workers experience violations of their rights: wages are stolen, injuries are ignored, and those who complain are punished on the spot or sent home.

Temporary foreign workers who choose to file a lawsuit to vindicate their rights typically do so once they are no longer in the United States, often litigating from rural communities in other countries. During litigation, the employers and the employers’ lawyers regularly use the fact that the workers are no longer present in the United States to gain a procedural or substantive advantage in litigation. This strategy, which we call “scorched border” tactics, is a standard litigation practice and is enabled by the very design of temporary foreign work programs, themselves rooted in the United States’ long history of low-wage foreign labor exploitation. Scorched border litigation drives up costs for a deeply under-resourced public interest bar and can chill lawyers’ case selection, shutting down access to justice for some of the most vulnerable of the working poor. However, to date, there exists no study documenting or analyzing this undeniable phenomenon.

This Article documents and critiques scorched border litigation tactics, drawing on a broad range of sources including a survey of practitioners who represent temporary foreign worker (“TFW”) plaintiffs, a collection of case histories, and a review of court rulings. We find that federal court litigation has already adapted to handle the complexities presented by these TFW cases, such as modifying the manner and location of a TFW plaintiff’s deposition. These types of adaptations are not new to experienced lawyers representing TFW plaintiffs and are regularly permitted by courts. However, these adaptations are often so far out of the litigation norm that defense lawyers seek to gain an advantage by creating costly and unnecessary disputes in a case.

The forced adaptation of the civil justice system to the COVID-19 pandemic, however, may open new opportunities for countering scorched border tactics. With courts now experienced in remote proceedings, what was the subject of ridicule or pushback by defense lawyers in TFW cases is suddenly the norm. A review of new pandemic-era federal court rules offers concrete prescriptions for federal district courts on how to proceed when an individual litigant does not reside in the United States. In so doing, we aim to ensure that the return of TFW plaintiffs to their communities of origin after their employment in the United States is over—as is required by the very programs that allow them to work here—can no longer be used by employers to block their access to justice.

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.

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.

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.

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.

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.

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 116^th 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. ↑