Last week I had the privilege of interviewing Justine Harris, a partner at Sher Tremonte LLP in New York City. Justine is a seasoned criminal defense attorney, who has experience representing clients in both criminal and white-collar matters. Prior to going into private practice in 2001, Justine was an assistant federal defender at the Federal Defender’s office for the Eastern District of New York. She is currently a member of the Board of Director for the Federal Defenders of New York and Chair of the Thought Leadership Subcommittee for the Women White Collar Defense Association (WWCDA).
You have taken a leadership role in WWCDA to organize resources for members fighting for release of incarcerated clients relating to COVID-19. Can you tell us what inspired you to get involved with this project?
At the time the COVID-19 pandemic first began to intensify, I actually had an application for compassionate release of an elderly client pending in the EDNY. So, I was quite familiar with the statute and what a powerful vehicle it could be for advocates seeking to get clients released, especially during and in light of the dangers posed by the pandemic. Moreover, because I still have a foot in the defender world, both as a member of the Board of Directors for the Federal Defenders of New York, and as a member of the CJA panel for EDNY and SDNY, I am regularly updated regarding frontline issues in the criminal defense practice area. When I saw questions related to COVID-19 advocacy being asked on the WWCDA listserve, I realized that the members of WWCDA could benefit from access to the same information, and I was motivated to connect lawyers with clients in need to the best information possible.
Do you believe that the private bar has a harder time accessing resources such as sample briefs and materials on a novel issue like this?
There are certain organizations that play a role in trying to provide resources and support to the private bar, but in my experience, resources are not as readily available to the private bar as they are to the Federal Defender community. Federal Defenders have a national listserve, with a fairly comprehensive email system for all defenders, so sharing information nationwide quickly is relatively easy for them. There are other nationwide listserves accessible to the private bar, such as NACDL. The WWCDA was a natural platform for collaboration because of the enthusiasm and responsiveness of its members. The fact that the association has the top women criminal defense lawyers from all over the country on the listserve makes it a very powerful tool for sharing and disseminating information.
After you started seeing questions circulating on the WWCDA listserve regarding COVID-19 release issues, what did you do next?
At the time, not only did I have a pending application for compassionate release, but my firm was making bail applications for several other clients based on COVID-19, so I was familiar with the data and the resources available. It would be crazy if every attorney had to reinvent the wheel each time these arguments were made, especially given the emergency nature of the applications. Because I was familiar with the work being done, I started sharing sample motions, and briefs that my firm and other lawyers in New York were working on. Given the enthusiasm and response from the WWCDA listserve, Jodi Avergun, myself and a number of others convened a call to begin to formally organize the resources in the most useful way for the membership.
How did you provide the WWCDA membership access to this large collection of data?
First, our group divided up some of the different topics. Then, with the help of Jodi Avergun, Karen Popp and Candus Hinderer, we set up a file share system through a Box online account. We organized the materials by issue, so there are different folders for different circumstances. There are materials related to compassionate release, materials related to pre-trial release, materials related to the medical issues, stats, letters, general articles and templates. There are also orders from different districts. I also obtained and shared an expert affidavit from Dr. Brie Williams, who is a public health expert and professor of medicine at UCSF to demonstrate the danger of COVID-19 to incarcerated persons. Now, any WWCDA member is able to access the Box directly, by just requesting their own log-in credentials, rather than needing to sift through 500 emails to pull together the data and samples.
How does the criminal defense bar benefit from sharing multi-district resources on these issues?
The database is a national compilation of motions, briefs and especially court orders, and it empowers lawyers with access to these resources. There are some tricky issues, especially as it relates to compassionate release – in particular whether or not the requirement that a defendant must first exhaust administrative remedies can be waived given the emergency circumstances presented by COVID-19. I think a lot of the initial work around compassionate release was everyone brainstorming about the best way to argue that the administrative exhaustion requirement was not mandatory and how to convince judges to adjudicate the motions even before the 30 days had passed.
Can you give us a sampling of the kind of litigation that you are seeing around the country relating to COVID-19 as it relates to both out of custody and in custody defendants?
Applications for release have come up at every stage of the proceedings. The obvious kind of application for release is a bail application. Once the pandemic intensified, lawyers were going into court and arguing changed circumstances justified reconsideration of prior detention orders. Then there are individuals who are post-conviction and awaiting sentencing. As you know, in that posture the burden shifts and there is often a presumption of detention. In these instances, the battle can be somewhat more intense. Of course, there is a similar calculus with respect to bail pending appeal. Next, there are individuals who are already sentenced and have a surrender date but have not yet surrendered. In those circumstances, lawyers are seeking to adjourn their client’s surrender date. Just today on the listserve, there were a number of questions about individuals who were already sentenced and designated to a facility but had not yet surrendered. Lawyers for those clients wanted to go back to the judge to request a sentence modification. Finally, there are compassionate release applications for sentenced prisoners currently serving time. I don’t have an exact tally, but I know our members have had success getting their clients released at each of these stages. And I know that those successes were the product, at least in part, of the collaboration that happened on the listserve.
Can you tell us more about the process of requesting compassionate release for sentenced defendants already serving time?
The compassionate release statute, 18 U.S.C. § 3582(c) provides that inmates can be released if there are “extraordinary and compelling” circumstances. The procedure for seeking compassionate release was amended by the First Step Act. Prior to the First Step Act, only the Bureau of Prisons (“BOP”) could bring motions for compassionate release, and therefore motions were never brought. Congress made a clear record that it wanted compassionate release to be used more frequently, and the statute was amended so that inmates could petition the court directly for compassionate release (over the objection or inaction of the BOP). So, this provides a new powerful tool for sentenced defendants. Since the passage of the First Step Act there was a fair amount of litigation around the meaning of the language in the statute, especially the term “extraordinary compelling circumstances.” The majority of courts have concluded that judges have full discretion and authority to decide what circumstances are “extraordinary and compelling” and they are not limited by the definitions provided in either the sentencing guidelines or the BOP policy statements. So, those two aspects of the statute – the fact it doesn’t matter if the BOP objects or doesn’t do anything on your client’s behalf, and that the court is free to determine what constitutes extraordinary and compelling circumstances – are, in this moment of the COVID-19 pandemic, game changers. The extraordinary risk that COVID-19 presents within jails means that this statute is the perfect vehicle to bring petitions before the court, especially for vulnerable inmates who–either because of their age or pre-existing medical conditions–are particularly vulnerable to infection. In my view, the pandemic, and the risk of death to vulnerable inmates, certainly creates “extraordinary and compelling” circumstances.
Has taking up this leadership role in accumulating resources for members of the WWCDA helped you to stay focused and grounded personally during this crisis?
Well, everyone has different coping mechanisms, but I suppose for me it helps to feel useful. I feel like I am doing something to help members of society who are extremely vulnerable right now. Prisoners are really terrified and understandably so. I am inspired and motivated by all the work being done to advocate for these individuals in such a time of crisis.
Do you feel that BOP has stepped up and dealt with this pandemic appropriately?
No. Neither the BOP nor the Department of Justice, frankly, have done enough. The vast majority of the release applications are opposed. I’ve seen a few consents here and there, but they are rare. Moreover, the oppositions are often rooted on formalistic grounds. For example, in the case of compassionate release, the government will often argue that the prisoner has not exhausted administrative remedies. In other cases, the response will be that the BOP has it under control. There are certain facilities that appear to be implementing the directives of the memoranda issued by Attorney General Barr, by identifying and releasing inmates nearing the end of their sentences or who are particularly vulnerable and have completed at least 50% of their sentence. We will have to see how widespread and effective those efforts will be. But that kind of effort, a wholesale effort to release inmates in significant numbers, was demanded weeks and weeks ago and should have started much sooner, before people started to die. Just last week BOP started reporting numbers, and as expected the numbers are increasing every day. As of April 13th, BOP reported that there are 388 inmates who were infected, 201 staff infected, 13 inmate deaths, and 0 staff deaths.
Is there anything you want to add about this important effort that you have taken on?
I joke that all I really did was forward emails. But more seriously, I think my actions have resonated in this particular moment because we all felt so isolated. We were all suddenly thrust into these very lonely work environments, where we were separated from our colleagues and our greater legal community. In an instant, we lost the way that we traditionally interact and connect with each other. So, bringing people together on the listserve around an issue that felt pertinent and important not only to what was going on in the world, but to the criminal defense community as a whole, made everyone feel supported and connected. Also, connecting the resources of the Federal Defender and the CJA community with the private bar makes clear that we’re all in this together, which is a very important way to come together in this time of isolation and loneliness.
As this blog’s author and for me personally, it has. Even though our firm does not currently have an incarcerated client who would benefit from a motion for release, either pretrial or compassionate release, I have felt really supported seeing your emails on a regular basis. I feel so proud to be a part of both the WWCDA and the criminal defense community at large and relieved to know that if our firm needed the resource it is there for us.