Thursday, May 7, 2020

A Thought on The Confluence of Incarceration and Coronavirus (5/7/20)

I recently posted on the tip of the iceberg of motions from persons incarcerated in federal prisons based on the risks from the coronavirus pandemic.  Compassionate Release from Incarceration Based on COVID-19 Pandemic (Federal Tax Crimes Blog 4/20/20; 5/7/20), here.  I particularly focused on the types of incarcerated persons which I feature in this blog -- persons convicted of tax or related crimes (or sometimes the broader category of white collar crime).  (Today, I added to that earlier blog a reference and link to Peter's Reilly excellent offering from yesterday, Judge Urges Prison Furlough For Author Of “Biggest Tax Fraud Ever” (Forbes 5/6/20), here; highly recommended.)

I have been watching a recent case, United States v. Pursley (S.D. Tex. No. H-18-575) (Courtlistener docket entries here).  I have written on that case in a couple of blogs that I link at the end of this blog entry.  For present purposes, the key information is that, in September 2019, Pursley, a lawyer, was convicted of tax crimes.  The judge denied the Government's motion to remand Pursley to custody.  There were standard post-trial motions (e.g., new trial and acquittal) which were denied.  Sentencing was originally set for December 2019.  Sentencing has been postponed and rescheduled several times and is currently scheduled for July 27, 2020.

In order to set up the anomaly I offer today, I will assume that Pursley is sentenced to 5 years incarceration.  While he is awaiting sentencing in July 2019, he presumably has been in self-isolation at least to some degree because of the pandemic.  That period of self-isolation, which has some characteristics of incarceration, will not count towards his sentence.

However, if he had been sentenced before the pandemic (say before February 2020), he might have had a shot for compassionate release or furlough if his personal characteristics and conditions of incarceration supported release or furlough.  Since, for the reasons noted by Judge Pauley in the Daugerdas case (see my blog entry above and Peter Reilly's blog entry), it is not likely that he would get compassionate release, he might get a furlough which might at least mean that he could serve some of his incarceration period in a type of home confinement (somewhat analogous to pandemic self-isolation) which, I would think, beats prison.

The Pursley case might not be the best case for this discussion, since I have no idea of his personal characteristics that a judge or the Bureau of Prisons in the exercise of discretion might find compelling.  But there are undoubtedly convicted defendants in the system who may get release or furlough because they had the good fortune to be sentenced before the pandemic hit.  For those sentenced after the pandemic hit, well, they lost that opportunity.

All of which is to say that, for incarcerated persons with the right characteristics, a pandemic may be an opportunity to mitigate the consequences of the sentence of incarceration.

And, for those who had their sentencing delayed by the pandemic, perhaps they could make some type of pitch to the judge that the "incarceration" of the pandemic should be a factor in favor of a lesser sentence than the judge might have otherwise imposed.  On its face, it seems to be irrelevant to sentencing, but in a broader sense perhaps .... I am not sure exactly how that pitch would be made, but it is at least worthy of consideration.

Prior Blog entries on Pursley (reverse chronological order):
  • Houston Attorney Convicted of Klein Conspiracy and Tax Evasion (Federal Tax Crimes Blog 9/6/19), here.
  • Houston Attorney Charged With Tax Crimes Related to Offshore Accounts (Federal Tax Crimes Blog 9/21/18), here.

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