MOTION TO MODIFY CRIMINAL SENTENCE DUE TO CORONAVIRUS PANDEMIC*
Untitled, Engraved Printmaking Plate, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
I represent people who are being investigated for criminal conduct, people who are charged with such conduct and people who have been convicted of such conduct. I recently filed motions in state and federal court, addressing incarceration in the face of the virtual petri dishes of which jail and prison populations are part due to the pandemic.
Many members of the public don’t much care what happens to those populations. Such thinking is shortsighted and narrow. When society chooses to define conduct as criminal with restrictions on violators’ liberty interests, that society takes responsibility for their well-being and must protect them and provide them competent care. A jail or prison term should not be a death sentence. Jails and prisons are able to operate only because of thousands of personnel who come and go, interact with inmates and with members of the public. They and their families are also at risk. Moreover, the United States imprisons more people per capita than any other civilized country in the world. Many inmates are incarcerated for non-violent offenses. A high percentage of the people in jail have not been convicted of anything. They are charged with crimes but are awaiting trial. Presumably, those people are deemed innocent of the crimes with which they are charged but remain in jail because they cannot make bail or a judge has otherwise concluded they present a public danger, a flight risk (unlikely to show up for court) or both.
Below is a sterilized version of a motion I filed, removing personal information but explaining this serious problem and seeking relief on behalf of a generic defendant who was sentenced and must self-report to federal prison on a future date.
Defendant moves the Court to modify the terms of his sentence. Defendant wants to begin and serve his sentence and not otherwise delay his life with the concomitant impact on his family. As a person who falls squarely within a high-risk category for serious illness and death if he is exposed to the Coronavirus and contracts COVID-19, however, he also wishes to avoid those dire consequences. He asks the Court to modify his sentence so [he can be on home confinement and serve his sentence at home, receiving credit for the time he serves there], [to extend his report date] until such time as his health and safety are not at high risk by being placed within a prison population where the virus has, or inevitably will, spread.
People over the age of 60 or with certain maladies are among the highest risk for infection, serious illness and death from the Coronavirus pandemic. Defendant’s doctor has classified him as high-risk. See Letter from Dr. , attached as Exhibit A. Defendant has suffered from  throughout his life, frequently experiencing . He [carries prescription steroid inhaler or takes heart medication or receives insulin injections, or has cancer, etc.]. As a result, defendant has been proactive in protecting his health and wellbeing and that of his family. He has remained home in self-imposed quarantine, limiting all visits to “essential” and requiring all such visitors to wear protective gear.
The Court sentenced defendant on __, 2020, before the United Sates learned of its first COVID-19 case in a patient with neither travel history to an outbreak area nor contact with anyone diagnosed with the virus. The first reported death in the United States from COVID-19 was February 29, 2020. Subsequent reporting shows the infection was spreading in the United States much earlier, with the first known death on February 6, 2020.
Since February 29, 2020, a mere two months, the numbers of infected people and COVID-19-related deaths in the United States have grown exponentially. Even with safety measures in place in many places in the United States, as of this filing the number of known people infected with Coronavirus has grown to 959,000 [put in current number on the date of filing] and known deaths from COVID-19 exceeds 54,172 [put in current number on the date of filing] and growing. Even though the United States’ population represents 4.25% of the world’s population, approximately one-third of the known Coronavirus infections worldwide are in the United States and over one-fourth of the COVID-19 related deaths are here.
When the Court sentenced defendant, none of us had adequate warning that a worldwide pandemic was just over the horizon, and would ravage communities worldwide, killing people of all ages with a higher percent of serious illness and death among certain vulnerable populations including people with pre-existing health conditions, and overwhelming healthcare systems. The President of the United States gave repeated assurances the virus had been isolated and contained and would not spread. That, unfortunately, did not come to be. In a March 23, 2020 letter to United States Attorney General William P. Barr and Director of Federal Bureau of Prisons Michael Carvajal, a bipartisan group of United States Senators including Utah’s Senator Lee raised serious concerns about the unfolding crisis and encouraged the addressees to consider release, home confinement and other options for the vulnerable inmate population. The letter explained:
"The Centers for Disease Control and Prevention (CDC) has issued guidance indicating adults over 60 years old and individuals with chronic medical conditions, such as lung disease, heart disease, and diabetes, are at higher risk of contracting COVID-19 and suffering more severe illness and death. The CDC has advised these individuals to avoid crowds and stay at home as much as possible. Conditions of confinement do not afford individuals the opportunity to take proactive steps to protect themselves, and prisons often create the ideal environment for the transmission of contagious disease."
The inadequacies of testing in the United States, in terms of availability and accuracy, are known and widely reported. People who do not exhibit symptoms of COVID-19 may well be infected and contagious. Communities that create the most significant threat of infection, suffering and death are those where people are unable to follow the directives of the WHO, CDC and federal, state and local governments, including social distancing, staying at home and using appropriate cleaning agents. Rest homes, prisons, jails and like facilities are virtual petri dishes, creating optimal environments for infection and spread of the virus. Jails and prisons are “hot spots,” facilities with the highest rates of infection and spread in the country. Reports suggest jails and prisons around the country are pockets with the highest numbers of infection and, given the high rate of incarceration in the United States as compared to other countries, have not been adequately modeled in predicted numbers of infections and deaths. Indeed, a recent UCLA study suggests the high rates of incarceration will result in double the otherwise predicted number of deaths in the United States. See, e.g.,
Federal, state and local jurisdictions throughout the country are taking appropriate and compassionate measures to reduce the likelihood of infection and its spread among vulnerable populations including those in custody. Everyone who is paying attention to how the pandemic has progressed knows that waiting to take protective measures, waiting to see if the virus spreads to a location or population, costs lives. As noted in the sua sponte order in United States v. Garlock, No. 18-cr-00418-VC-1, 2020 WL 1439980 (N. D. Cal. Mar. 25, 2020):
"By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large—created by large prison populations. See, e.g., United States v. Stephens, No. 15-cr-95-AJN, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020); United States v. Barkman, No. 3:19-cr-0052-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020); In the Matter of Extradition of Toledo Manrique, No. 3:19-mj-71055-MAG-1 (TSH), 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020). The chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual. See, e.g., Sadie Gurman, Bureau of Prisons Imposes 14-Day Quarantine to Contain Coronavirus, Wall Street Journal (March 24, 2020), https://www.wsj.com/articles/bureau-of-prisons-imposes-14-day-quarantine-to-contain-coronavirus-11585093075."
Were it not for the health and welfare of defendant being placed in serious jeopardy, a risk that even the most astute protective measures by law enforcement have been unable to contain or control nationwide, defendant would not file this motion: he does not wish to delay serving and completing his sentence. The Court has discretion to exercise oversight and compassion for the health and safety of the people who come before the Court for sentencing and are within its jurisdiction. For these reasons, defendant asks the Court to modify his sentence to allow him to [report at a later date] [serve the front end at home and report to the designated facility] after the danger has passed via vaccine, herd immunity or other scientifically verifiable measures.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**Richard’s list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers