The Revelatory Nature of COVID-19 Compassionate Release in an Age of Mass Incarceration, 2020

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The Revelatory Nature of COVID-19 Compassionate Release in an Age of Mass Incarceration, 2020

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The Revelatory Nature of COVID-19
Compassionate Release in an Age of Mass
Incarceration, Crime Victim Rights, and Mental
Health Reform

Jennifer A. Brobst

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“Thucydides, describing the anarchy that followed the plague at Athens,
suggests how men, unrestrained from human laws and made cynical by
disaster about divine ones, lapse into lawlessness. Retribution needs to be
secure to be effective as a prudential argument; very often it is not.”
- MARY MARGARET MACKENZIE, PLATO ON PUNISHMENT 113 (1981).

ABSTRACT

The crime victim rights movement and mass incarceration grew
side-by-side in the United States, and in many ways they deal with similar
questions about the purposes, benefits, and effectiveness of the criminal
justice system. Among the dominant criminal justice theories, retribution
continues to receive stalwart support as an assurance of justice, but also as a
possible form of penance and individual and societal healing. This is in
some tension, however, with the prevalence of atypical neurology among
prisoners and the associated push for treatment rather than punishment for
those deemed less accountable for the harm they cause.. The COVID-19
worldwide pandemic in 2020 tested the value attributed to retribution,

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*
Jennifer A. Brobst, J.D., LL.M. is an Associate Professor at Southern Illinois
University School of Law. She began her career as a child victim advocate and state
deputy prosecutor in Indiana and then served as a policy advocate for both crime
victims and defendants in various capacities in other states. She was appointed to the
North Carolina Commission for Mental Health, Developmental Disabilities, and
Substance Abuse Services, and was the Legal Director of the Center for Child and
Family Health in North Carolina for nearly a decade, which provides medical and
mental health services related to abuse and neglect and child traumatic stress. Many
thanks are extended to Meg Garvin of the National Crime Victim Law Institute for
research access, and for the support of Southern Illinois University law student
Alhoun Lundy who provided research assistance in Summer 2020. This article was
accompanied by a presentation in November 2020 at the University of St. Thomas
virtual symposium on Neuroscience and the Law.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3876423

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rehabilitation, and other criminal justice goals in sentencing and
incarceration. Specifically, the First Step Act of 2018 enhanced
discretionary compassionate release from prison due to illness and
disability, requiring a post-sentencing balance of interests between
perceived risks to the prisoner while in prison and risks to the public if
release were granted. Early COVID-19 compassionate release decisions
reveal that courts continue to base early release decisions primarily on an
assessment of public safety risk from crime, not community impact, crime
victim impact, or even prisoner health. In so doing, judges and prosecutors
usurp and marginalize the role of the community and those most affected by
crime. Greater consideration of community and crime victims’ perspectives
would better serve justice, and its goals of retribution and rehabilitation.

INTRODUCTION

Mass incarceration in the United States is finally being identified by
policymakers as harmful to society and the result of ineffective efforts to
combat crime and protect the public, particularly the “War on Drugs.”1 Why
high levels of incarceration is problematic is a complex question, but many
prisoners have a serious diagnosable mental health disorder, including
neuroatypical conditions such as substance abuse addiction, intellectual
disabilities, or mental illness.2 Inequities are compounded by the fact that in
both state and federal jurisdictions, offenders who are caught in the net of the
criminal justice system are disproportionately young, African American or
Hispanic men who are relatively poor with less formal education.3 What is
more, low income men of color caught within the trap of mass incarceration

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See, e.g., First Step Act of 2018, P.L. 115-391, 132 Stat. 5194 (2018) (aiming,
through bipartisan legislation, to reduce mass incarceration of nonviolent offenders);
see generally Andrea Craig Armstrong, The Missing Link: Jail and Prison
Conditions in Criminal Justice Reform, 80 LA. L. REV. 1, 4 (2019); Susan Stuart,
War as Metaphor and the Rule of Law in Crisis: The Lessons We Should Have
Learned from the War on Drugs, 36 S. ILL. U. L.J. 1 (2011).
2
See E. FULLER TORREY ET AL., U.S. DEP’T JUSTICE, NCJ NO. 230531, MORE
MENTALLY ILL PERSONS ARE IN JAIL AND PRISONS THAN HOSPITALS: A SURVEY OF
THE STATES (2010), available at https://www.ojp.gov/library/abstracts/morementally-ill-persons-are-jails-and-prisons-hospitals-survey-states.
3
See generally Brett Dignam, Learning to Counter Mass Incarceration, 48
CONN. L. REV. 1217, 1220 (2016) (addressing the need for more educational services
to the prison population, disproportionately comprised of “young black men who
dropped out of high school”).

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comprise a population group less likely to have access to quality medical and
mental health services from a young age.4
Also, with the increase in urbanization and illegal drug use in the
United States, by the 1960s, a burgeoning middle-class victims’ rights
movement5 arose in response to the sharp increase in rates of property and
violent crime. Police purportedly were unable to address the spike adequately
and crime victims were reluctant to cooperate with no possibility of victim
compensation or voice at sentencing.6 However, those most fearful of crime
in the United States were those who lived in low-income communities, who
had less access to transportation and personal security measures, felt little
trust toward law enforcement, and feared retaliation by offenders.7 This
community of crime victims witnessed mass incarceration differently than
the policymakers.
In the 1990s, during the height of the Clinton tough-on-crime era,
criminologist Michael Tonry stated that communities afflicted with inner city
drug-related crime did not want mass incarceration and police crack downs;
they wanted “more drug treatment, more early childhood programs, and more

See generally MELISSA THOMPSON, RACE, GENDER, AND MENTAL ILLNESS IN
THE CRIMINAL JUSTICE SYSTEM 111 (2005) (finding that African-Americans are least

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likely to be psychologically evaluated in the criminal justice system); M. Gregg
Bloche, Race and Discretion in American Medicine, 1 YALE J. HEALTH POL’Y, L. &
ETHICS 95, 108 (2001) (“Working poor and unemployed patients, especially the
uninsured, tend to find their way to a bottom tier of public clinics staffed by rotating
house officers and salaried attendings with little institutional cache.”). Studies have
also shown that offenders have a three to six times higher rate of having a sexually
transmitted infection than the non-offender population, with higher rates among
women than men, and higher rates among Black offenders than White offenders.
Sarah E. Wiehe et al., Epidemiology of Sexually Transmitted Infections Among
Offenders Following Arrest or Incarceration, 105 AM. J. PUB. HEALTH, Dec. 2015,
at e26, e28 (studying approximately 250,000 Marion County, Indiana offenders
between 2003–2008).
5
The term “victim” will be used throughout for consistency with related victim
rights legislation, but the author acknowledges the importance and greater accuracy
of the alternative term “survivor”, as well as the dignity demanded by the person first
movement.
6
LESLIE W. KENNEDY & VINCENT F. SACCO, CRIME VICTIMS IN CONTEXT 51
(1998).
7
See JEFFREY REIMAN, THE RICH GET RICHER AND THE POOR GET PRISON:
IDEOLOGY, CLASS, AND CRIMINAL JUSTICE 170 (8th ed. 2007); KENNEDY & SACCO,
supra note 6, at 116–17.

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crime prevention initiatives.”8 Indeed, mandatory sentencing and mass
incarceration undermined the ability of offenders to provide victims of crime
with restitution, which again disproportionately impacted low-income
communities, where victims most needed restitution.9 Mandatory sentencing
also reduced the potential influence and relevance of crime victim impact
statements at sentencing.10
Mandatory sentencing guidelines, such as the Sentencing Reform
Act of 1984 and the Anti-Drug Abuse Acts of 1986 and 1988, ensured an
increase in arrests in minority communities with a focus on particular
controlled substances, such as crack cocaine, rather than promoting the
treatment of addiction.11 By 1994, every state had mandatory sentencing
laws.12 The continuing legacy of the War on Drugs has criminalized certain
conduct that disproportionately impacts low-income communities of color,
while declining to criminalize other significantly harmful activity, such as
white collar crime, industrial disasters, or political corruption - crimes that
would address a different, more affluent, demographic of offender.13 Due to
recidivism, reincarceration, and long prison sentences, many of these young
offenders find themselves eventually aging in prison, resulting in a growing
proportion of much older inmates with serious medical and mental health
needs.14 As stated before Congress:
8

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KENNEDY & SACCO, supra note 6, at 129; see also Richard R.W. Brooks, Fear
and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in
Minority Communities, 73 S. CAL. L. REV. 1219 (2000).
9
See REIMAN, supra note 7, at 170; ROBERT ELIAS, VICTIMS STILL: THE
POLITICAL MANIPULATION OF CRIME VICTIMS 40–41 (1993).
10
ELIAS, supra note 9, at 94.
11
CONTROLLING THE DANGEROUS CLASSES: A HISTORY OF CRIMINAL JUSTICE
IN AMERICA 50–54 (Randall G. Shelden ed., 2d ed. 2008).
12
HEATHER AHN-REDDING, THE “MILLION DOLLAR INMATE”: THE FINANCIAL
AND SOCIAL BURDEN OF NONVIOLENT OFFENDERS (2007).
13
See generally REIMAN, supra note 7, at 30; KENNEDY & SACCO, supra note 6,
at 58–59.
14
See generally Lindsey E. Wylie et al., Extraordinary and Compelling: The
Use of Compassionate Release Laws in the United States, 24 PSYCHOL., PUB. POL’Y
& L. 216, 216–217 (2018) (finding that inmates age 50 and older are the fastest
growing population segment in the United States prison system). A number of state
and federal appeals relate to age-related mental disorders among prisoners,
particularly Alzheimer’s disease. See, e.g., Wilson v. Adams, 901 F.3d 816 (7th Cir.
2018) (affirming a motion for summary judgment on a constitutional deliberate
indifference and medical malpractice state claim); Dahl v. Miles, 2017 WL 3600397
(D. Minn. Aug. 20, 2017) (denying on procedural grounds a habeas corpus claim for

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Our Nation's Federal prison population is rapidly aging. Of
the 1.5 million adults currently in State and Federal prisons,
there has been a 300 percent spike in the elderly population
since 1999. By 2050, it is estimated that one-third of the
prison population of the United States will be over age 50.15
Many thoughtful and perceptive grassroots advocates and concerned
scholars have addressed the factors impacting mass incarceration mentioned
above, but few have considered the role of crime victims in the conversation.
This is particularly unfortunate, for many offenders have also been victims
of crime. For example, one petitioner for compassionate release from prison
during the pandemic had convictions for firearms offenses and domestic
violence; had spent half of his life in prison after a childhood in which he had
been hospitalized due to physical abuse by the grandfather who raised him;
and received diagnoses for PTSD, depression, and impulse control disorder.16
Victims and offenders in such cases come from the same communities and
face similar societal barriers and prejudices.17
As will be discussed below, the crime victim rights movement has
been subject to efforts at manipulation and stereotyping by both offender
advocates and state agents.18 Victims of crime are not bent on revenge
regardless of the cost, nor are they without compassion for the serious and
negative impacts of excessive incarceration and the societal neglect of

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conditions of confinement, including denial of medications to forestall the
progression of Alzheimer’s disease); Stackhouse v. State, 2015 WL 4381703, at *5
(Tenn. Ct. Crim. App. July 17, 2015) (affirming the denial of postconviction relief
to a 77-year-old sexual offender with Alzheimer’s disease, in addition to having
Parkinson’s disease, diabetes, and high blood pressure); State v. Kirby, 173 Wis. 2d
307 (1992) (noting the “inability of the prison system to provide adequate
supervision for an elderly person with his chronic frailties of mind”).
15
Good Conduct Time Credits for Certain Elderly Nonviolent Offenders, H.R.
Rep. No.116-192, at H9191116th Cong. (2019) (statement of Rep. Ted Deutch
addressing the Second Chance Act of 2007).
16
U.S. v. Cannon, 2021 WL 231100, at *3 (D. Conn. Jan. 22, 2021).
17
See BUREAU OF JUSTICE STATISTICS, U.S. DEP’T JUSTICE, NCJ No. 255578,
NATIONAL CRIME VICTIMIZATION SURVEY: VIOLENT VICTIMIZATION BY RACE OR
ETHNICITY, 2005-2019, (2020), https://www.bjs.gov/content/pub/pdf/vvre0519.pdf
(finding, in 2005, 32.7 violent victimizations per 1,000 black persons age 12 or older
and 27.7 violent victimizations per white persons, falling to 18.7 for black persons
and 21.0 for white persons in 2019); KENNEDY & SACCO, supra note 6, at 14
(identifying research showing that the most likely victim of violent crime in the
United States is a young, black male who knows his offender).
18
See generally ELIAS, supra note 9.

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medical and mental health needs of inmates. Tough-on-crime government
voices have selectively lifted up only certain crime victims in the public eye,
profiling middle-class white victims who are far from typical for those most
victimized by crime while repeatedly portraying poor communities of color
as hardened criminals who choose to be so, even if they are subject to
victimization.19 Examples of the government’s choice to adopt primarily
public health approaches to the opioid crisis and fetal alcohol syndrome,
which impact middle-class communities, contrast vividly with the
criminalization of pregnant women who use crack cocaine or heroin in
predominantly low-income communities of color.20 All crime victim voices
are valuable, but more crime victims and more representative crime victims
need to weigh in for criminal justice reform to effectively incorporate a crime
victim rights perspective. This is more important than ever as the American
middle class shrinks and the divide between rich and poor grows ever
greater.21
History matters here. While each addressed different concerns, the
crime victim rights movement and the rise of mass incarceration largely
began during the same post-1960s period.22 Yet, as fierce public policy
debates about the causes and effectiveness of mass incarceration continue,
the quiet and modest progress of the crime victim rights movement has
continued to proceed relatively independently. However, it could be joining
more actively with immigrant rights, consumer protection, racial justice,
defendants’ rights, and other civil rights organizations to alleviate the causes

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See KENNEDY & SACCO, supra note 6, at 15 (suggesting that portraying
victims of crime who are poor and of color as receiving their just deserts alleviates
middle class guilt for failing to take responsibility for social inequity); ELIAS, supra
note 9, at 40–41(stating that the 1982 Presidential Task Force on Victims of Crime
selectively protected an unrepresentative group of crime victims, “not lower-class
minorities”).
20
See, e.g., Angela P. Harris & Aysha Pamukcu, The Civil Rights of Health: A
New Approach to Challenging Structural Inequality, 67 UCLA L. REV. 758, 803
(2020) (“Although the crack baby phenomenon proved not to be real after continued
medical and public health research, the panic led to widespread criminal and
administrative sanctions against pregnant women, especially poor Black and brown
women, and the effects of this stigmatizing public policy are still being felt today.”).
21
See PETER TEMIN, THE VANISHING MIDDLE CLASS: PREJUDICE AND POWER IN
A DUAL ECONOMY (2017) (asserting that wage stagnation, racial segregation, and
mass incarceration are components of a deliberate policy to maintain a cheap labor
force and ensure high profits for the wealthy few); SHELDEN, supra note 11, at 320
(finding that as of 2005 one-third of African-American men had been in jail, prison,
probation or parole).
22
See infra Part II.

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of social inequity that lead to much crime. Although crime victim rights are
of relatively recent origin, and a remarkable achievement for all victims of
crime, they take a narrow view of the crime victim’s experience. That is, the
crime victim rights movement has hesitated to focus on reform of the justice
system as a whole, the needs of the defendant, and the diversity of members
of the community. The history of criminal sentencing theory, in turn, has
patently ignored the role of crime victims, most of whom are far more likely
to understand the context within which the crime occurred than a judge or
other government agent far removed from the realities of the defendant’s
community and life experience. If their experiences were given more weight,
crime victims could have offered a perspective that would have helped the
criminal justice system avoid the unfortunate path of mass incarceration and
its terrible costs to so many both in and out of prison.
This dearth of victim-impact perspective is seen most poignantly
now, at a time when neuroatypical offenders and other inmates with medical
conditions have faced the terrifying risk of death in prison due to the COVID19 pandemic. The rapid and necessary spate of compassionate release claims
filed on behalf of inmates with conditions that place them at greater risk of
the contagion have vividly reflected the priorities and inequities of the
criminal justice system. With little time for reflection given the rapid spread
of the contagion, court and prison authorities have repeatedly emphasized
community protection from recidivism and notions of retribution first,
devaluing yet again the perspectives of those offenders and victims already
marginalized in the justice system. As a poignant example, it was reported
that North Carolina state officials designed a strict policy during the
pandemic of refusing compassionate release to any prisoner convicted of a
violent crime, even if she was pregnant and her sentence was nearly
complete.23
This article will address, in Part II, the intersection of the history of
mass incarceration in the United States and the development of crime victim
rights, highlighting the impact of mental health research on both. Part III
evaluates traditional sentencing theories against the benefits and risks of
mental health goals and the interests of crime victims and defendants. Finally,
Part IV specifically examines how public health crises, such as the COVID-

See Hannah Critchfield, Pregnant NC Prisoner Hopes of Release Fading,
N.C.
HEALTH
NEWS
(June
17,
2020),
https://www.northcarolinahealthnews.org/2020/06/17/pregnant-nc-prisoners-hopesof-release-fading/.

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19 pandemic, reveal the priorities of the criminal justice system and its
disregard of marginalized community voices in favor of state control.

II.

THE PARALLEL HISTORY OF MASS INCARCERATION AND
CRIME VICTIM RIGHTS

Several patterns mark the parallel history of mass incarceration and
the crime victim rights movement. Aside from occurring during the same era,
following the Civil Rights era of the 1960s and 1970s, both responded to the
tough-on-crime political climate of the subsequent 1980s and 1990s, and
both were strongly supported by President Reagan, President Bush, and
President Clinton.24 However, they did not speak to the same types of crimes.

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A. Legal Recognition of the Mental Health Needs of Crime
Victims and Offenders

While mass incarceration emerged from public fears related to the
rise in property crimes and homicides connected to increased availability of
illegal drugs, the movement for victims’ rights arose from both medical
recognition of child abuse and the women’s movement, which recognized
that women victims of interpersonal and family violence were wholly
marginalized in the criminal courts.25 Nonprofit crisis centers arose largely
serving women and child victims of crime, with a tenuous recognition of the
importance of race and class on the incidence of violence, aiming instead for
an alliance with government.26

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See Eliav Lieblich & Adam Shinar, The Case Against Police Militarization,
23 MICH. J. RACE & L. 105, 115 (2017–2018).
25
See Kristin N. Henning, What’s Wrong with Victims’ Rights in Juvenile
Court?: Retributive v. Rehabilitative Systems of Justice, 97 CAL. L. REV. 1107, 1110
(2009) (reviewing the historical development of crime victims’ rights); Karen-Lee
Miller, Purposing and Re-Purposing Harms: The Victim Impact Statement and
Sexual Assault, 23 QUALITATIVE HEALTH RES. 1445, 1449 (2013) (finding in a study
of victims of sexual assault that their victim impact statements emphasized the
opportunity to be recognized by the court, where their experiences of “marginality
and stigma” by the legal system had exacerbated their feelings of emotional distress
from the crime).
26
See ELIAS, supra note 9, at 47–48 (“[T]he victims movement we know has not
fundamentally challenged U.S. society on its crime-control strategies, social policies,
or otherwise.”); Office of Victims of Crime, Introduction and Executive Summary,
OVC ARCHIVE, https://www.ncjrs.gov/ovc_archives/repcong/intro.htm (last
accessed Mar. 6, 2021) (stating that the Victims of Crime Act (VOCA) of 1984
provided extensive funding for “pioneering partnerships” that included children's
advocacy centers, victim services centers, and interdisciplinary violence against

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Mandatory reporting of child abuse and mandatory arrest and
prosecution of domestic violence marked a serious systemic reach into the
lives of families that was needed to curb the retributory nature of
interpersonal violence, but the policies also enhanced the state control of
offenders through incarceration.27 As a movement, sympathy was difficult to
find among advocates for battered women or victims of sexual violence with
respect to the offender’s related substance abuse, putting forth the highly
prominent theme that violence is a choice to exert power and control, not a
result of a mental health disorder.28 Victims of violence sought accountability
and respect from the justice system, which political figures put to their own
use. Child victims of abuse and neglect were too young to fully exercise their
victim rights in the justice system in a meaningful way, which led advocates
and the State to speak for them.29
Remarkably, at this time the most common victim of violent crime
was a young man who looked much like the most common convicted
offender – a low-income, young man of color facing economic challenges
and hardship since birth. There were no crime victim advocacy centers for
these young men.30 Instead, their advocates in the criminal justice system

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women programs in order to “reduce the number of victim interviews, provide
settings especially designed for victims, and increase collaboration between criminal
justice and victim service agencies”).
27
See KENNEDY & SACCO, supra note 6, at 105 (describing interpersonal
violence as seen as retribution in the home).
28
E.g., ECHO A. RIVERA ET AL., NAT’L CTR. ON DOMESTIC VIOLENCE, TRAUMA
& MENTAL HEALTH, AN APPLIED RESEARCH PAPER ON THE RELATIONSHIP
BETWEEN INTIMATE PARTNER VIOLENCE AND SUBSTANCE ABUSE 1 (2015) (“IPV
[interpersonal violence] is best understood as an ongoing pattern of power and
control in romantic relationships that is enforced by the use of abusive tactics, such
as intimidation, threats, physical or sexual violence, isolation, economic abuse,
stalking, psychological abuse, and coercion related to mental health and substance
use.” (internal citation omitted)).
29
See Lisa Kelly & Alicia LeVezu, Until the Client Speaks: Reviving the LegalInterest Model for Preverbal Children, 50 FAM. L.Q. 383 (2016); Marlene A. Young
Interview Transcript, ORAL HISTORY OF THE CRIME VICTIM ASSISTANCE FIELD
VIDEO AND AUDIO ARCHIVE, UNIV. OF AKRON (Feb. 24, 2003),
http://vroh.uakron.edu/transcripts/Young.php (founding Executive Director of the
National Organization for Victim Assistance).
30
See Eric Stiles et al., Serving Male-Identified Survivors of Intimate Partner
Violence, NAT’L RESOURCE CTR. ON DOMESTIC VIOLENCE 8 (July 2017),
https://vawnet.org/sites/default/files/assets/files/2017-07/NRCDV_TAGServingMaleSurvivors-July2017.pdf (noting that the prevalence of women-focused

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rose up from the ranks of criminal defense, stating that their clients were
victims of the system. Discussion of childhood victimization did, however,
become important in sentencing hearings.31 Those who regularly worked
with child victims of crime could not help but recognize the pattern of victim
as offender, and offender as victim in communities with little social and
economic support.32 While politicians raged about the hardened criminal or
professional criminal class, they targeted the poorest and least politically
powerful rather than the professional affluent classes who, in the 1980s and
beyond, were rigging the economy and creating an ever widening class
division.33
Crime victims were pitted politically against criminal offenders,
which made little sense, particularly when constitutional rights generally
focus on curbing the arbitrary and inequitable use of state power.34 The
primary concern for both victim and offender was always the workings of the
criminal justice system itself and those who pulled its levers. In the
meantime, gains were made in the medical and mental health communities,
particularly since the 1990s.35 For example, pharmacological treatments for
serious mental illnesses such as bipolar disorder were developed, new best

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names of crisis centers “limits males’ ability to see themselves as victims and find
their way to service providers”).
31
See, e.g., Craft v. State, NO. SC19-953, 2020 WL 6788794 (Fla. Nov. 19,
2020) (holding that the trial court properly weighed defendant’s history of childhood
trauma as a mitigating factor at sentencing); Eaton v. State, 192 P.3d 36 (Wyo. 2008)
(holding that a murder defendant was not provided with ineffective assistance of
counsel at the penalty stage when counsel failed to investigate and present certain
mitigating abusive events in the defendant’s childhood).
32
See generally David Finkelhor et al., Office of Juvenile Justice & Delinquency
Prev., How the Justice System Responds to Juvenile Victims: A Comprehensive
Model,
JUV.
JUST.
BULL.
(Dec.
2005),
https://www.ojp.gov/pdffiles1/ojjdp/210951.pdf.
33
See Lucian E. Dervan & Ellen S. Podgor, “White-Collar Crime”: Still Hazy
After All These Years, 50 GA. L. REV. 709 (2016); Eli Wald, Serfdom Without
Overlords: Lawyers and the Fight Against Class Inequality, 54 U. LOUISVILLE L.
REV. 269 (2016); William J. Stuntz, Race, Class, and Drugs, 98 COLUM. L REV.
1795 (1998).
34
See KENNEDY & SACCO, supra note 6, at 57.
35
See
generally
DSM
History,
AM .
PSYCHIATRIC
ASS’N,
https://www.psychiatry.org/psychiatrists/practice/dsm/history-of-the-dsm (outlining
the history of the evolving classification of mental disorders in the Diagnostic and
Statistical Manual of Mental Disorders (DSM) and the International Classification
of Diseases).

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practices and identification for posttraumatic stress disorder and chronic
depression were implemented, and gains were made in understanding the
nature of cognitive disabilities that are relevant to the justice system.36
This modest renaissance in mental health research led offender
advocates in the new millennium to rightly argue that incarceration was more
inhumane and unjust for some with such mental health challenges. The
victim advocacy movement remained relatively silent, focusing instead on
the mental health gains in treatment for victims with these same conditions.
It demanded restitution from offenders for the costs of such treatment but
said little about the meaning of justice for similarly neuroatypical offenders.
Rehabilitation as a sentencing goal gained new life with new treatments,37
but also created the serious new risks of adding to the state’s power public
health surveillance and medically anesthetizing a population of low-income
communities of color already disproportionately impacted by state control.
In the last half-century, the medical and mental needs of both
convicted offenders and victims of crime have received substantially more
attention than in decades past.38 In 1972 in Jackson v. Indiana, the United
States Supreme Court held that substantive due process rights, specifically
the liberty interests of detained persons with intellectual disabilities, may
override the police power interest in community safety and allow for pretrial
release.39 In 1994 in Farmer v. Brennan, the Court put forth that, pursuant to
the Eighth Amendment Cruel and Unusual Punishment Clause, “[t]he
Constitution does not mandate comfortable prisons, but neither does it permit
inhumane ones” when reviewing whether a state facility had been
deliberately indifferent to the petitioner’s health needs.40 In Atkins v. Virginia

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Walter Alexander, Pharmacotherapy for Post-traumatic Stress Disorder in
Combat Veterans, 37 PHARMACY & THERAPEUTICS J. 32 (2012) (discussing the comorbidity and treatment of bipolar, schizophrenia, and posttraumatic stress disorder).
37
Richard Williams, Nat’l Conference of State Legislatures, Addressing Mental
Health
in
the
Justice
System,
23
LEGISBRIEF
(Aug.
2015),
https://www.ncsl.org/research/civil-and-criminal-justice/addressing-mentalhealth-in-the-justice-system.aspx.
38
See Executive Summary: Final Report of the APA Task Force on the Victims
of Crime and Violence, 40 AM. PSYCHOLOGIST 107, 108 (1985) (“It is clear from
research evidence that loss of personal property and/or bodily injury, commonly
thought of as the most unsettling aspect of victimization, may in fact be of less
importance than the psychological damage suffered by the victim.”).
39
406 U.S. 715, 731 (1972).
40
Farmer v. Brennan, 511 U.S. 825, 832 (1994).

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in 2002, the Court questioned the utility of imprisonment and capital
punishment of offenders with cognitive disabilities who do not meet the
criteria for involuntary commitment but cannot easily be rehabilitated or
deterred from future offending by imprisonment alone.41 In 2005 in Roper v.
Simmons, the Court acknowledged both international human rights
protection of minors and research on the adolescent brain as less developed
than previously understood when it abolished the death penalty for juvenile
offenders.42 Indeed, the unduly harsh conditions of prison that more
vulnerable offenders experience has led to an array of constitutional
challenges, most recently with respect to the restriction on the insanity
defense in state jurisdictions,43 as well as the mental health impact of solitary
confinement and the risk of assault in prison.44 Thus the criminal justice
system, since the 1960s, responded to the development of mental health
research with calls for the dignity and constitutional protection of both crime
victim and offender.

B. The Crime Victim Rights Movement Appeals to Justice

Criminal justice was originally less of a structured system under
British common law, where the prosecutor was usually the victim and, if
poor, had little ability to compensate witnesses or ensure effective court
processes.45 This also shaped the early history of the American criminal
justice system.46 Initially, American jails were temporary holding facilities
where many punishments involved capital punishment, whipping, branding

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41
Atkins v. Virginia, 536 U.S. 304, 317 (2002) (“This consensus unquestionably
reflects widespread judgment about the relative culpability of mentally retarded
offenders, and the relationship between mental retardation and the penological
purposes served by the death penalty.”).
42
Roper v. Simmons, 543 U.S. 551 (2005).
43
See Kahler v. Kansas, 140 S. Ct. 1021 (2020).
44
See generally Jennifer A. Brobst, The Metal Eye: Ethical Regulation of the
Use of Technology to Observe Humans in Confinement, 55 CAL. W.L. REV. 1 (2018).
45
GEORGE RUDÉ, CRIMINAL AND VICTIM: CRIME AND SOCIETY IN EARLY
NINETEENTH-CENTURY ENGLAND 89–90 (1985).
46
See KENNEDY & SACCO, supra note 6, at 50 (discussing the lack of public
police or prosecutors in colonial America); Paul G. Cassell & Margaret Garvin,
Protecting Crime Victims in State Constitutions: The Example of the New Marsy’s
Law for Florida, 110 J. CRIM. L. & CRIMINOLOGY 99, 102–03 (2020) (citing William
F. McDonald, Toward a Bicentennial Revolution in Criminal Justice: The Return of
the Victim, 13 AM. CRIM. L. REV. 649 (1976)).

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and other mutilation, or being sent to serve the victim as laborer.47 In Britain,
given the strict class structure and the “savagery of the law” of property
crimes, victims were known to openly “hesitate to play a part,” recognizing
that the death penalty was an unjust punishment for stealing.48 By the midnineteenth century in England, the death penalty had been abolished for such
crimes, but metropolitan police departments emerged to keep the peace
against labor and political riots in a Dickensian rising industrialized society.49
In the United States, post-Civil War prisons in the late nineteenth century
housed debtors, vagrants, and served as the “depository” for the mentally
ill.50
Historian George Rudé found in early British records that the new
police officers, primarily from the class of laborers, craftsmen, and exsoldiers, would engage in acts of entrapment, aggression against vagrants,
and interfere with victims who recommended “mercy.”51 Jurors also resisted
through nullification of the harsh criminal laws against property offenders,
which they felt were “devised by a landlord-dominated Parliament.”52 Seen
in retrospect, Rudé argues that the British common law in the early Industrial
Age reflected “an increasingly central and omnicompetent State” comprised
of the poor, a new working class, middle-class Radicals, and “the
replacement of one class system of justice by another; an aristocratic system
geared to the land by one created in the image of a commercial and
manufacturing middle class.”53 Despite the new middle class strata serving
as a bridge in the legal system between the working class and upper class,
Rudé acknowledges that “[t]here was still the presumption that a poor man,
particularly one without movable possessions or a home of his own, was a
potentially dangerous malefactor who could be detained with impunity.”54
However, in the early 1900s, the more heavily populated regions of
the United States aimed for reformatory prisons, focusing on rehabilitation
and implementing parole boards that used new scientific psychological
testing to determine levels of dangerousness.55 Analogizing prison reform to
47

HERBERT A. JOHNSON, HISTORY OF CRIMINAL JUSTICE 149 (1988).
RUDÉ, supra note 45, at 89.
49
Id. at 90, 98.
50
JOHNSON, supra note 47, at 150.
51
RUDÉ, supra note 45, at 98–99.
52
Id. at 109.
53
Id. at 116.
54
Id. at 119–20.
55
JOHNSON, supra note 47, at 229.

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hospital treatment led to indeterminate sentencing at the turn of the
nineteenth century and the classification of prisoners by perceived
dangerousness, such as recidivists and sex offenders.56 Thus, the new
criminal justice systems in Britain and the United States reflected the class
divisions and fears of a changing society, as well as the hopes of new science.
By the 1970s, the United States Supreme Court began to frame these
concerns more frequently as social injustice, as seen in the concurring
opinion of Justice Douglas in Furman v. Georgia, addressing the imposition
of the death penalty:
Former Attorney General Ramsey Clark has said, ‘It is the
poor, the sick, the ignorant, the powerless and the hated who
are executed.’ One searches our chronicles in vain for the
execution of any member of the affluent strata of this
society. The Leopolds and Loebs are given prison terms, not
sentenced to death.57
Inequity persists for both crime victim and offender. According to historians,
“at no time has the majority of the U.S. adult population or households
managed to gain title to any more than about 10% of the nation’s wealth.”58
In 2001, the bottom half of American households reportedly owned only
2.8% of the nation’s wealth and 0.5% of stock investments.59
When the first federal crime victims’ rights legislation was presented
with the support of President Reagan’s Task Force on Victims of Crime in
1982,60 crime victims came forward to testify to their mistreatment by the
justice system and their relative disadvantage. Select witnesses decried
paying for the “staggering expenses” of the funerals of their murdered
children, while the convicted defendants were incarcerated, “getting all the
help they need” in the form of food, housing, clothing, education, and
medical and psychological care.61 At this time, the United States Supreme
56

SHELDEN, supra note 11, at 169–70.
Furman v. Georgia, 408 U.S. 238, 251–52 (1972) (internal footnote and
citation omitted).
58
REIMAN, supra note 7, at 189 (citing Carol Shammas, 98 AM. HIST. REV. 189
(1993)).
59
Id.
60
ROBERT C. DAVIS ET AL., SECURING RIGHTS FOR VICTIMS: A PROCESS
EVALUATION OF THE NATIONAL CRIME VICTIM LAW INSTITUTE’S VICTIMS’ RIGHTS
CLINICS 9 (2009).
61
Judge Lois Haight Interview Transcript, AN ORAL HISTORY OF THE CRIME
VICTIM ASSISTANCE FIELD VIDEO AND AUDIO ARCHIVE, UNIV. OF AKRON (Feb. 24,

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Court in Rhodes v. Chapman, held that prison overcrowding did not violate
the Eighth Amendment Cruel and Unusual Punishment Clause if there was
no actual injury from deprivation of essential food, medical care, sanitation,
or increased violence.62 Moreover, the Court held that lack of rehabilitation
is not inherently violative:
Although job and educational opportunities diminished
marginally as a result of double celling, limited work hours
and delay before receiving education do not inflict pain,
much less unnecessary and wanton pain; deprivations of this
kind simply are not punishments. We would have to wrench
the Eighth Amendment from its language and history to hold
that delay of these desirable aids to rehabilitation violates the
Constitution.63
Prosecutors and victim advocates shared how the justice officials
generally blamed victims for the inability to hold offenders “accountable”
when victims were reluctant to report crime or cooperate with the system.64
Victims were seen as “just one more piece of evidence,” and if they failed to
appear, they could be jailed for contempt.65 Judges failed to protect victim
privacy, routinely sharing their contact information with offenders in
discovery, and failed to ensure that victims received the return of their
property kept in evidence.66 In the early 1980s, victims in the vast majority
of states were not permitted to provide a victim impact statement at trial or
at parole hearings, and they were not informed when offenders obtained early
release.67
By the early 1990s, every state provided a victim compensation fund
for victims of violent crime and the right to be “informed, present, and
heard.”68 By 2005, the voters of 32 states had amended their constitutions to

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2003), http://vroh.uakron.edu/transcripts/Haight.php (a former prosecutor in
Oakland, California).
62
Rhodes v. Chapman, 452 U.S. 337, 348 (1981).
63
Id.
64
Judge Lois Haight Interview Transcript, supra note 61.
65
Marlene A. Young Interview Transcript, AN ORAL HISTORY OF THE CRIME
VICTIM ASSISTANCE FIELD VIDEO AND AUDIO ARCHIVE, UNIV. OF AKRON (Feb. 24,
2003), http://vroh.uakron.edu/transcripts/Young.php.
66
Judge Lois Haight Interview Transcript, supra note 61.
67
Id.
68
DAVIS ET AL., supra note 60, at 11.

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include crime victim rights, and all 50 states had protective legislation.69 In
2018, gains had slowed to where 35 states had constitutional provisions, with
six more states considering adoption of specific constitutional crime victim
rights.70 In this twenty year period, crime victim rights sought a tenuous
partnership with the State. However, when federal grant funding for crime
victim rights was first provided, crime victim advocates from nonprofit crisis
centers, who were doing most of the work, did not receive the same level of
funds as prosecutors and other state officials who “gobbled it up” with more
professional grant applications, creating, for example, internal victim witness
assistant programs.71 When prosecutors were tasked with ensuring that
victims were given the opportunity to exercise their rights, they often lacked
training,72 and law schools still rarely include crime victim rights education
in the curricula despite their constitutional status. State actors appear to have
been indifferent to the importance of the crime victim voice as a key to
justice, perhaps fearing that the victim would “distort the delicate balance of
[justice]” in a system “not designed for the remedy of private interests.”73
Some argued that lifting up the status of crime victims would interfere with
the role of the prosecutor to ensure not only justice for the victim, but for the
public as well.74 However, with respect to promoting the goals of the justice
system, Judge Haight, one of the first prosecutors to work with new victim
rights legislation in California, stated the problem succinctly:
If we treat victims poorly, if we don’t treat them well, they
will not cooperate with the criminal justice system and they
will not report crime or if they do report it, they won’t testify

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69
Sarah Brown Hammond, Nat’l Conference of State Legislatures, Enforcing
and Evaluating Victims’ Rights Laws, 13 LEGISBRIEF 1 (March 2005),
https://www.ncsl.org/Portals/1/documents/pubs/lbriefs/05LBMar_VictimsRights.p
df.
70
Anne Teigen, Rights for Crime Victims on the Ballot in Six States, NAT’L
CONFERENCE OF STATE LEGISLATURES: THE NCSL BLOG (Oct. 12, 2018),
https://www.ncsl.org/blog/2018/10/12/rights-for-crime-victims-on-the-ballot-insix-states.aspx.
71
Judge Lois Haight Interview Transcript, supra note 61.
72
Id.
73
Alan N. Young, Two Scales of Justice: A Reply, 35 CRIM. L.Q. 355, 358
(1993).
74
See Lawrence Schlam, Enforcing Victim’s Rights in Illinois: The Rationale
for Victim “Standing” in Criminal Prosecutions, 49 VAL. U. L. REV. 597, 602-03
(2015) (quoting concerns by the judiciary of “a dangerous return to the private blood
feud mentality”).

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and then the criminal is free to prey on more and more
victims. There is no accountability.75
To accompany an array of federal crime victim rights legislation in
the 1980s and 1990s,76 crime victim rights clinics were developed to
empower a cadre of attorneys to represent crime victims in court and ensure
that their rights were enforced.77 For example, crime victim attorneys could
seek orders of protection for privacy and safety, move to amend a plea to
include restitution, or file a writ with the court to allow the victim to be
present in the courtroom.78 Victims needed legal standing to enforce these
rights, which was not often provided, and remedies for violations of crime
victim rights were also absent.79 Standing elevated the status of crime victim
rights in the few states that permitted crime victims to be personally
represented in criminal court,80 with renewed efforts to amend constitutions
to grant such standing.81 During the pandemic, for example, the Supreme
75

Judge Lois Haight Interview Transcript, supra note 61.
See DAVIS ET AL., supra note 60, at 9–10 (discussing the legislative
chronology, including the Victim and Witness Protection Act of 1982, Pub. L. 97291 (authorizing victim restitution and victim impact statements); Victims of Crime
Act (VOCA) of 1984, Pub. L. 98-473 (providing victim compensation funding at the
state and local level); Victims’ Rights and Restitution Act of 1990, 42 U.S.C. §
10607 et seq., Pub. L. 101-647 (authorizing victim notification of criminal processes
in federal court, the right to attendance, notice of defendant’s release, right to inform
the prosecution on pleas and sentencing, and protection from aggressive acts by the
defendant); Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103322 (providing for a right for the victim to speak at sentencing, mandating restitution
in sex offense cases, and increasing funding for local victim services); Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. 104-132; Victim Rights
Clarification Act of 1997, Pub. L. 105-6; and Crime Victim Rights Act of 2004, Pub.
L. 108-405 (incorporated as part of the Justice for All Act of 2004)).
77
See generally DAVIS ET al. supra note 60. (a monograph for the RAND
Corporation). But see Paul G. Cassell & Margaret Garvin, Protecting Crime Victims
in State Constitutions: The Example of the New Marsy’s Law for Florida, 110 J.
CRIM. L. & CRIMINOLOGY 99, 136–137 (2020) (explaining that many crime victims
must assert their rights without the aid of counsel).
78
DAVIS ET AL., supra note 60, at xiv.
79
Id. at 12-13, Hammond, supra note 69.
80
DAVIS ET AL., supra note 60, at 10, 13 (identifying states with express
provisions granting legal standing to assert crime victim rights to include Ariz. Rev.
Stat. § 13-4437, Fla. Stat. § 960.001; Ind. Code § 35-40-2-1, and Tex. Const. Art. I,
§ 30).
81
See generally Paul G. Cassell & Margaret Garvin, Protecting Crime Victims
in State Constitutions: The Example of the New Marsy’s Law for Florida, 110 J.
CRIM. L. & CRIMINOLOGY 99 (2020).

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Court of Arizona held in E.H. v. Slayton, that the Arizona Constitution gave
a crime victim the right to have an attorney at bar, as well as the statutory
right to “full” restitution, with no cap imposed at the plea hearing without
victim consent.82 Moreover, the Court held that “[a]t all times, . . . a trial
court's discretion to address seating arrangements [during the pandemic]
must honor a victim's constitutional right to be present and heard at criminal
proceedings and to be treated with fairness, dignity, and respect.”83
However, victims’ rights could not generally impinge on the
defendant’s constitutional rights, such as interference with an agreed upon
plea.84 Victim impact statements often have been limited to testimony
regarding the impact of the crime alone, whether a victim seeks vengeance
or mercy and a compassionate sentence.85 In State v. Glassell, the Arizona
Court of Appeals held that the trial court did not err in a capital case when it
failed to permit a victim witness to testify at the penalty phase in favor of a
life sentence, for the Eighth Amendment bars a victim from making a
sentencing recommendation.86 Despite the defendant’s argument that the
Eighth Amendment should only prevent victims from advocating for a death
sentence, not from advocating for leniency, the court held that the only
relevance of a victim impact statement is “evidence of the impact of the
crime.”87
As to offering substantive evidence, many evidentiary and witness
accommodations have been recognized since the 1980s, taking into account
trauma caused to victims from the criminal act and the trial process itself.88
And yet, a focus on the victim’s mental health, a source of advocacy for
restitution for the cost of counseling, became a basis for defense strategies to
diminish the credibility of crime victims.89 As an example, in a child physical
82

E.H. v. Slayton, 468 P.3d 1209 (2020).
Id. at 1217.
84
E.g,, State v. Means, 926 A.2d 328 (N.J. 2007).
85
See DAVIS ET AL., supra note 60, at 61.
86
State v. Glassel, 116 P.3d 1193, 1215 (2005), cert. denied, 547 U.S. 1024
(2006).
87
Id.
88
E.g., Walker v. State, 461 S.W.3d 599 (Tex. Ct. App. 2015) (holding that
when a child victim of sexual abuse testifies by closed circuit television to reduce
trauma it does not violate the defendant’s right to confrontation).
89
See, e.g., In re Michael H., 602 S.E.2d 729 (S.C. 2004) (upholding, as a matter
of first impression, a trial court’s order at the defendant’s request for an independent
psychological evaluation of a child sexual abuse victim witness). But see State v.
Horn, 446 S.E.2d 52 (N.C. 1994) (concluding that “the possible benefits to an

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abuse prosecution involving burns to a child with autism spectrum disorder,
the defendant unsuccessfully attempted to establish a compelling need to
order an independent psychological examination of the child to challenge the
child’s competency to testify.90 The factors included consideration of the
probative value of the evidence, but also “the resulting physical and/or
emotional effects of the examination of the victim.”91
While one might argue that “[i]deal victims are those who it is
believed would find it difficult or even impossible to protect themselves from
criminal offenders,”92 such preferred status is not offered to the many persons
in the United States suffering from addiction or mental illness who have been
both crime victim and offender. Also, most victims and offenders of violent
crime know each other as members of the same household or community.93
Stigma against certain crime victims reflects the existing prejudices in
society, likely influencing which victims have been more “heard” by
prosecuting attorneys and the courts. The perspectives of victims who
themselves have a criminal record or were engaged in criminal conduct at the
time of the offense may not be as valued by a court obliged to sentence the
defendant for similar conduct.94 Victims of crime who are perceived as
morally suspect, such as those who have contracted a sexually transmitted
disease, or exhibit aberrant behavior not identified as a mental illness, or who
live a life on the margins of society, may not be granted equal respect by the
criminal justice system.95 In a review of litigation involving either HIVpositive defendants or victims, one researcher has suggested that
“circumstances involving HIV-positive lives or homosexuality challenge

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innocent defendant, flowing from such a court ordered examination of the witness,
are outweighed by the resulting invasion of the witness' right to privacy and the
danger to the public interest from discouraging victims of crime to report such
offenses.”).
90
State v. Johnson, No. 2017-000873, 2019 WL 7369266 (S.C. Ct. App. Dec.
31, 2019).
91
Id. at *2.
92
KENNEDY & SACCO, supra note 6, at 12.
93
Id. at 14.
94
See generally Joshua Kleinfeld, A Theory of Criminal Victimization, 65 STAN.
L. REV. 1087 (2013) (examining the moral and theoretical justifications for
differential legal treatment of different types of victims, such as children or persons
with disabilities).
95
Ben Myers & Edith Greene, The Prejudicial Nature of Victim Impact
Statements, 10 PSYCHOL., PUB. POL’Y & L. 492 (2004) (finding that juries in capital
cases are more emotionally swayed by certain kinds of victim impact statements).

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decision-makers’ sense of familiarity and comfort” with race, gender
identity, and sexual orientation.96 Demonstrating a punitive approach to
social stigma, more than thirty states have enacted criminal felony offenses
for intentional transmission of an infectious disease, including HIV/AIDS.97
State actors and politicians manipulate what has been termed by
Professor Melissa Cole as a “hierarchy of disability,” where the statutory
framework identifying the need for legal protection excludes some
conditions more than others.98 Wrapped up in the definitions of disability are
notions of self-control and agency. In other words, if one can alleviate a
disability one should do so, such as taking medication for mental illness or
wearing corrective lenses or accepting a cochlear implant. Thus, the
individual “chooses”, with society’s approval, to no longer be disabled.99 In
the criminal justice system, this is apparent where some victims, such as
children and older adults, are granted higher status through enhanced
sentences and specific offenses to protect them as special victims,100
compared to those victims who are vulnerable based on class, race, or lack
of access to health care who receive no such protection. The latter are, in
essence, to be blamed for their victimization, despite the fact that victims
with mental illness experience significantly higher rates of crime
victimization than those without disabilities.101 Due to their relative lack of
access to law enforcement and reduced ability to detect and protect
themselves from offending behavior, victims facing an intersection of race,

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Carrie Griffin Basas, The Sentence of HIV, 101 KY. L.J. 543, 591–92, 599–
600 (2012-2013).
97
Mark E. Wojcik & David W. Austin, Criminal Justice and COVID-19, 35
CRIM. JUST. 44, 45 (2020).
98
See Melissa Cole, The Mitigation Expectation and the Sutton Court’s
Closeting of Disabilities, 43 HOW. L.J. 499, 528 (2000).
99
Id. at 527–28.
100
E.g., MO. REV. STAT. § 565.002 (2020) (providing sentencing enhancements
for assaults against certain special victims, such as law enforcement officers, persons
with a disability, elderly persons, employees of mass transit systems, and corrections
officers in the performance of their duties).
101
Office for Victims of Crime, First Response to Victims of Crime Who Have
a Disability, U.S. DEP’T. OF JUSTICE 1 (Oct. 2002) (addressing additional legal
protections and required accommodations for victims of crime with disabilities under
the Americans with Disabilities Act of 1990 and section 504 of the Rehabilitation
Act of 1973).

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class, and mental illness are at higher risk of becoming both a victim of crime
and targeted as an offender by the state.102
Victims’ rights are not duties and victims’ optional exercise of their
rights is inherently diverse. What crime victims want from the justice system
may vary from regaining control, being heard, obtaining compassion, seeking
vindication, and ensuring rehabilitation of offenders, but it also allows for
forgiveness as an element of healing for the victim.103 Anecdotal reports in
legal news have stated that “[s]ome crime victims and their families
expressed anger upon learning that inmates were released from prison
because of COVID-19.”104 On the other hand, this may merely reflect the
bias of reporters to reinforce the stereotype that victims of crime only seek
punishment at all costs. Anecdotal reports of crime victims advocating for
compassionate release, or declining to oppose it, would not make news, and
yet crime victims have done so throughout the pandemic.105 For certain types
of offenses, however, such as family violence, the risk of release to the victim
and the public may be quite serious. According to the National Bulletin on
Domestic Violence Prevention, the United Nations estimated that six months
of lockdown worldwide could lead to 31 million additional domestic violence
cases.106 Arguably, giving crime victims the power to accept or decline the
right to provide a victim impact statement or to seek restitution is beneficial
in itself for one disempowered by the criminal act and historically
disrespected by the justice system.

C. The Typical Prisoner is Neuroatypical

Just as many victims of crime experience trauma, most criminal
offenders experience significant trauma both before and during incarceration,
and after release.107 It is well established that more persons with mental
illness are incarcerated than are in mental health facilities in the United
States.108 Some would argue that addressing the mental health needs of those
102

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Id.
ELIAS, supra note 9, at 95.
104
Wojcik, supra note 98, at 48.
105
See infra Part IV.
106
DV in the News: DV and COVID-19, 26 NAT’L BULL. ON DOMESTIC
VIOLENCE PREV. (June 2020) (including data from Johns Hopkins University).
107
See Curtis Davis & Samantha Francois, Behind Closed Doors: Considering
a Triphasic Traumatic Incarceration Experience, 26 TRAUMATOLOGY 193 (2020).
108
See E. Fuller Torrey et al., U.S. DEPT. JUSTICE TREATMENT ADVOC. CTR.,
NCJ No. 230531, MORE MENTALLY ILL PERSONS ARE IN JAIL AND PRISONS THAN

103

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in prison “is nearly impossible” due to the paucity of resources, staff, and
funding.109 Supermax prisons with extreme isolation became misused for
housing the overflow of mentally ill and ungovernable prisoners, which led
to extreme psychological damage, including “states of psychosis, depression,
anxiety, and confusion.”110 In a 2002 prison study, inmates over age 65
accounted for over 30% of prison medical costs, including treatment for agerelated mental health disorders.111
Congress also recently recognized the inordinate number of
prisoners with mental illness, who in previous generations may have been
directed to treatment facilities rather than incarceration:
[T]he high incidence of offenders with mental illness in jail
is simply the lack of mental health treatment, particularly for
non-violent offenders. Once incarcerated, people with
mental illness have difficulty obtaining adequate treatment.
They are at high risk of suicide, and they may be preyed
upon by other inmates.112
In its best light, the severity of mass incarceration in large part reflects a
crime control policy premised on the philosophy of deterrence, and yet
researchers have not supported a deterrent effect on crime for the individual
or society due the criminogenic effect of incarceration.113 What came out of

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HOSPITALS: A SURVEY OF THE STATES, TREATMENT ADVOC. CTR. (May 2010),
https://www.ojp.gov/library/abstracts/more-mentally-ill-persons-are-jails-andprisons-hospitals-survey-states; see also Dominic A. Sisti et al., Improving Longterm Psychiatric Care: Bring Back the Asylum, 313 JAMA NETWORK 243, 243
(2015) (stating that in-patient psychiatric beds have declined by 95% in the last half
century).
109
AHN-REDDING, supra note 12, at 62.
110
Id. at 60; see also Kirsten Weir, Alone, in ‘the Hole’, Psychologists Probe the
Mental Health Effects of Solitary Confinement, 43 AM. PSYCHOL. ASS’N 54 (May
2012), https://www.apa.org/monitor/2012/05/solitary (identifying risks of solitary
confinement in supermax prisons to include “anxiety, panic, insomnia, paranoia,
aggression and depression).
111
AHN-REDDING, supra note 12, at 104.
112
Criminal Justice Responses to Offenders with Mental Illness: Hearing Before
the Subcomm. on Crime, Terrorism, and Homeland Security on the Judiciary, 110th
Cong., 1 (2007) (statement of Robert Scott, Chair, House of Rep. Committee of the
Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security).
113

CASSIA SPOHN, HOW DO JUDGES DECIDE? THE SEARCH FOR FAIRNESS AND
JUSTICE IN PUNISHMENT 291–93 (SAGE, 2d ed., 2009) (finding that incarceration
doubles the rate of recidivism of drug offenders compared to probation).

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the War on Drugs was not only mass incarceration, but increasing
opportunities for invasive surveillance and militarized approaches against
what the state portrayed as deviant communities.114 As reported violent crime
declined over the decades115 and the focus on violent crime victims took the
lead in the crime victim rights movement, “victimless” drug offenses became
the object of policies enabling mass incarceration.
Victims who wanted leniency in sentencing a criminal case were not
necessarily those who sought services from the crime victim rights
movement. Victim witness assistants, working for the state prosecutors’
offices, naturally promoted the objectives of the state, but could not easily
manage dual loyalties should a victim openly disagree with a prosecutor,
while still seeking support from the prosecutor’s office. The nonprofit crisis
center victim advocates, more independent from the state, although often
reliant on grant funding from the state,116 often worked with the most
egregious cases of violence, thus likely influencing their fears that offenders
presented a continual risk and deserved severe sanctions. Statewide victim
advocacy nonprofits that provide training to crisis advocates, prosecutorial
staff, police officers, and even judges, have consistently lobbied for greater
criminal sanctions against offenders.
While these factors all facilitate the crime victim rights movement’s
support of state control, it does not necessarily reflect the perspective of most
crime victims, who directly experience the impact of the criminal justice
system, mass incarceration and the tearing of social fabrics where both victim
and offender lived. Most crime victims who are victims of less violent crimes
are not sincerely asked to exercise their rights in the justice system. Also,
114

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Eliav Lieblich & Adam Shinar, The Case Against Police Militarization, 23
MICH. J. RACE & L. 105, 134 (2017-2018) (connecting racial profiling to militarized
approaches to civil unrest); REIMAN, supra note 7, at 48 (identifying the state’s
interest in normalizing perpetual surveillance with a panopticon effect); Paul
Finkelman, The Second Casualty of War: Civil Liberties and the War on Drugs, 66
S. CAL. L. REV. 1389, 1422 (1993) (presenting numerous reports of racist and
“groundless searches” of minorities during drug investigations, resulting in vastly
disproportionate numbers of arrests of black and Hispanic men for drug offenses);
ELIAS, supra note 9, at 67.
115
See John Gramlich, What the Data Says (and Doesn’t Say) About Crime in
the
United
States,
PEW
RES.
CTR.
(Nov.
20,
2020),
https://www.pewresearch.org/fact-tank/2020/11/20/facts-about-crime-in-the-u-s/
(explaining that while most Americans believe crime is on the rise, in fact, the violent
crime rate fell by 49% between 1993 and 2019).
116
See supra note 26.

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III.

many crime victims who are actively involved in the sentencing process are
not asked to consider justice, but are only asked to explain the impact on their
own life, ultimately to be measured by the system itself.117 If the typical
prisoner is neuroatypical, and both victims and offenders face similar societal
barriers, together they could present a vision of reform for the criminal justice
system that respects the needs of the communities most harmed. Whether
such an approach would comport with the goals and interests of the criminal
justice system warrants examination.

THE BENEFITS OF RETRIBUTION, DETERRENCE, AND RESPECT
FOR AUTONOMY

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The criminal justice system, when dehumanizing offenders and
crime victims, amplifies the interests of the state over the individual. Even
efforts at rehabilitation as a more humane cure for crime than punishment
can disguise an interest in enhancing state control in society. Importantly,
mental health researchers evaluating the criminal justice system have
highlighted the risk that applying psychological labels to offenders is
paternalistic and could diminish the legal autonomy of the offender.118 Given
court-ordered indeterminate treatment, such as involuntary commitment of
sex offenders, “the use of psychiatry in the legal system seems to provide
support for increased social control of felony defendants,” which shifts the
focus from punishment to the “management of aggregates of dangerous
groups.”119 Existing biases are infused in new justice approaches when
discretion is exercised by the same state actors. Research has found that
aggressive women prisoners, for example, are more likely to be provided
with a mental health placement, while aggressive men are more likely to be
placed in solitary confinement.120
What is absent in traditional theoretical approaches to sentencing is
direct consideration of the role of the crime victim in the criminal justice
system.121 The case law addressing victim impact statements reveals diversity
of viewpoint among victims of crime as to the appropriateness of

117

See supra notes 75–78.
THOMPSON, supra note 4, at 178.
119
Id. at 184.
120
Id. at 27.
121
KENNEDY & SACCO, supra note 6, at 93 (“The history of theoretical attempts
to explain crime can largely be read as a history of the neglect of the role and
significance of crime victims.”).

118

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punishment.122 Given the recency of crime victim rights in the United States,
and lack of standing to assert them, it is not surprising if victim involvement
is sporadic. The few research studies directly addressing what victims usually
seek from sentencing hearings are limited.123
Enhancing the crime victim’s role at sentencing has potential to
improve the effectiveness and fairness of the system. And yet, the risks are
cyclical if public policy fails. In one view, “[c]rime must be adequately
punished by the state; if the prison is not sufficiently punitive, a system of
private revenge will arise to supplement it.”124 This assumes that victims and
society require punishment. A rehabilitative alternative could be oppressive,
anesthetizing offenders and rendering them incapacitated against their will.
The latter would offend American notions of autonomy, and, without
economic and racial justice reform, would yet again disproportionately
disadvantage the low-income, purportedly “deviant” classes. Prison should
never have been the primary treatment facility for Americans. Offender
programs, alternate sentencing, and other efforts at individual reform will
have little impact, anyway, until the United States better addresses income
inequality and equal opportunity.125 If policymakers cannot see this, perhaps
a stronger, combined voice of offender and victim will right the imbalance
and reestablish proportionality, dignity and respect for the individuals in the
justice system.

A. Theoretical Approaches to Sentencing

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In matters of criminal justice reform, sentencing policy must be
informed by its goals. Historically, and at present, these could very generally
be summarized to include the goals of rehabilitation, including education,
medication, involuntary commitment, restorative justice, and therapeutic
jurisprudence; specific and general deterrence, including tailored specialty
courts, incarceration, electronic monitoring and other forms of community

122

See infra Part IV.
E.g., Uli Orth, Punishment Goals of Crime Victims, 27 L. & HUMAN BEHAV.
173 (2003) (studying victims of sexual assault and non-sexual assault and finding
that victims prioritized the goals of deterrence of the offender, victim security, and
societal security, followed by general deterrence, retribution, and rehabilitation least
of all).
124
HERBERT A. JOHNSON, HISTORY OF CRIMINAL JUSTICE 293 (1988).
125
See SHELDEN, supra note 11, at 323.

123

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supervision; and retribution.126 Disparate forms of sentencing such as orders
of restitution, hard labor, and prisons requiring solitary confinement could all
be argued to serve the three goals listed in some way.
The call for retribution strikes a chord in most people, as it is meted
out in quotidian human interactions where one might feel another deserves
to be punished, regardless of the outcome. As a matter of state condemnation,
retribution performs an expressive role, avoiding the appearance that the
State is complicit in the misconduct.127 However, according to Protagoras,
one should seek a more rational approach to punish in order to deter future
harm, and thus avoid the animal instincts of vengeance.128 Plato’s theory of
punishment would reform the “curable criminals,” seek to obtain forgiveness
from victims, and incapacitate the “incurables” in order to deter others.129
Personal responsibility is favored over pity for the offender or victim, where
Plato finds utility to be derived only from punishment upon the “satisfaction
of the grievance of the victim” who will benefit “simply by witnessing the
wretchedness of the man who originally made him suffer.”130 Philosophy
scholar Mary Margaret Mackenzie identifies correlates between Greek and
modern cultural attachments to the impulse toward retributivism.131 Such an
impulse reinforces concepts of culpability, freedom, and self-determination
to reassure humans that they are not merely creatures of circumstance.132
Offering an offender an opportunity to redress harms and pay for his or her
wrongdoing is more respectful of human autonomy than assuming the
offender is incapable of choosing whether or not to commit a crime.
However, proportionality in sentencing remains a foundational concept for
retribution, proportional in the sense that the punishment fits the crime and
that individual offenders are treated fairly with respect to each other.
126

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See generally Beware of Punishment: On the Utility and Futility of Criminal
Law, in 14 SCANDINAVIAN STUDIES IN CRIMINOLOGY (Annika Snare ed., 1995);
EDMOND CAHN , CONFRONTING INJUSTICE, THE EDMOND CAHN READER (Lenore L.
Cahn ed., 1966); Dena M. Gromet & John M. Darley, Punishment and Beyond:
Achieving Justice Through the Satisfaction of Multiple Goals, 43 L. & SOC’Y REV. 1
(2009); Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of
Retribution, 39 UCLA L. REV. 1659 (1992).
127
MARY MARGARET MACKENZIE, PLATO ON PUNISHMENT 25 (1981).
128
PAMELA HUBY, PLATO AND MODERN MORALITY 72 (1972) (noting that
Protagoras is a pre-Socratic philosopher who died in 411 B.C.E.).
129
MACKENZIE, supra note 127, at 227–28.
130
Id. at 229.
131
Id. at 237.
132
Id. at 238.

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Jeremy Bentham, the English philosopher, jurist, and social reformer
regarded as the founder of modern utilitarianism, put forth the principle that
the greatest happiness of the greatest number is the measure of right and
wrong.133 Here the utilitarian would welcome the offender’s suffering if it
deterred future misconduct, but not as a form of retributivist justice or just
deserts.134 As a paternalistic approach, it would impute consent to
punishment and forced rehabilitation on the part of the offender as a member
of society and disregard any “encroachment upon the autonomy of the
individual.”135 Influencing early American sentencing theory, utilitarianism
asserted that proportionality in punishment would be required to avoid
greater harm and to promote general deterrence, but individual victim
impacts and restitution would not further the wider utilitarian goal.136 Today,
victim advocates would suggest that victim impact statements supply critical
information to the judiciary in determining the extent of the harm caused and
thus benefit the determination of a proportional sentence.137
In the modern era, the Supreme Court has held that the Eighth
Amendment Cruel and Unusual Punishment Clause is measured, not by
“historical conceptions,” but by the “evolving standards of a mature society,”
which “[do] not mandate adoption of any one penological theory.”138 And
yet, “[r]etribution is a legitimate means to punish,” in order to “express
[societal] condemnation of the crime and to seek restoration of the moral
imbalance caused by the offense.” 139 However, the Court has reasoned that
“[t]he heart of the retribution rationale is that a criminal sentence must be
directly related to the personal culpability of the criminal offender.”140
Bentham and other philosophers, for various reasons, would consider
punishment of infants or the insane to lack utilitarian value, proportionality,
and any possibility of specific deterrence or retributive value.141
133

See id. at 35.
Id. at 39.
135
MACKENZIE supra note 127, at 57.
136
Id. at 37–38.
137
See generally Paul G. Cassell, In Defense of Victim Impact Statements, 6
OHIO ST. J. CRIM. L. 611 (2009).
138
Graham v. Florida, 560 U.S. 48, 58, 71 (2010).
139
Id. at 71.
140
Id.
141
See, e.g., Jeremy Bentham, Inefficacious Punishment, in PHILOSOPHICAL
PERSPECTIVES ON PUNISHMENT 186, 186 (Gertrude Ezorsky ed., 1972); Thomas
Hobbes, Of Punishments and Rewards in PHILOSOPHICAL PERSPECTIVES ON

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134

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To determine a just and proportionate sentence, predominating
factors also evolve over time and vary by jurisdiction, undermining what
Immanuel Kant would have espoused as essential consistency to elevate
retribution over “mere private judgment.”142 Crime victims and advocates
would easily note that individual jurists cannot escape their own private
judgments and cultural familiarity.143 In People v. Rhoades, the Illinois Court
of Appeals stated that it need not compare its standards with that of other
states.144 The Illinois Constitution article I, section 11 requires considering
the seriousness of the offense and restoring useful citizenship to the
defendant, but the court held in Rhoades that it would primarily protect
vulnerable members of society, specifically children, from sexual abuse in
imposing a life sentence.145 The goals of protective restraint and specific
deterrence seem to predominate over goals of rehabilitation or retribution in
this determination.
Nevertheless, retribution alone has value for crime victims of
violence and their families, who themselves may never fully recover from
the impact of the criminal act. There is also a purpose to collective suffering
evident in the creation of the modern crime victims’ rights movement, as well
as other humanitarian and civil justice reform efforts. They hearken back to
the publicly performed Greek tragedies, provoking fear and pity for manifest
unfairness, emotions bringing comfort when felt together by many.146
However true this remains today, many victims and offenders do pursue the
end of suffering for themselves and others, but find revelation and selfawareness through suffering as well. Modern sentencing alternatives, such as
restorative justice embrace this concept.

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PUNISHMENT 3, 3-4 (Gertrude Ezorsky ed., 1972) (asserting that the right to punish
inheres from an ability to consent to society’s right to punish); J.E. McTaggart,
Hegel’s Theory of Punishment, in PHILOSOPHICAL PERSPECTIVES ON PUNISHMENT
40, 40–41 (Gertrude Ezorsky ed., 1972) (promoting the offender as a moral being
with capacity for repentance).
142
Immanuel Kant, Justice and Punishment, in PHILOSOPHICAL PERSPECTIVES
ON PUNISHMENT 103, 104 (Gertrude Ezorsky ed., 1972).
143
See Joe D. Whitley et al., A Prisoner’s Dilemma: COVID-19 and Motions for
Compassionate Release, PRACT. INSIGHTS COMMENT. (May 28, 2020) (describing
the randomness of judicial rulings from a legal practitioner’s perspective).
144
People v. Rhoades, 115 N.E.3d 1238, 1243 (Ill. App. Ct. 2018).
145
Id. at 1243–44.
146
MACKENZIE, supra note 127, at 101, 112 (explaining that Greek tragedies
portrayed that “life is neither fair, kind, nor ordered” to remind the public that they
at least suffer injustice together).

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Restorative and community justice approaches also call for greater
victim and community input in sentencing, although they were initially only
acceptable for the category of low-level nonviolent offenses which did not
pose a physical threat to victims.147 Their efficacy is unproven but promising.
For example, some studies have indicated that the impact of victim
statements in court-ordered proceedings does not tend to generate feelings of
empathy or remorse among homicide offenders at the sentencing hearing,
and that victims may not care or expect to receive an apology from the
offender.148 Additionally, specific deterrence and rehabilitation programs
may be less effective with some neuroatypical offenders. Some offenders
with mental health diagnoses demonstrate difficulty in finding empathy, and
they may not respond as expected by the court or victim.149 As shown below,
a broader role for crime victim and community in sentencing could assist the
court in determining whether incarceration is appropriate for offenders with
mental health disorders.

B. Mental Health Research and the Meaning of Justice

147

In general, crime victims remain interested in retribution and
deterrence as goals to ensure justice, including those victims who are also
offenders. In one study, for example, offenders who have been raped in
prison asserted that they perceive justice to require punishment of the
perpetrator, and would not be satisfied with the mere opportunity to file a
civil claim 150 Yet empirical research has also demonstrated that offenders
subject to life in prison express distress over the denial of an opportunity for

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See AHN-REDDING, supra note 12, at 195–96; Michael Wenzel et al.,
Retributive and Restorative Justice, 32 L. & HUM. BEHAV. 375 (2008).
148
See Tracey Booth, Victim Impact Statements and the Nature and Incidence
of Offender Remorse: Findings from an Observation Study in Superior Sentencing
Court, 22 GRIFFITH L. REV. 430, 433 (2013) (noting that out of court voluntary
restorative justice proceedings may have more positive impact).
149
See Francesco Margoni & Luca Surian, Mental State Understanding and
Moral Judgment in Children with Autism Spectrum Disorder, 7 FRONT PSYCHOL.
1478 (2016) (recommending treatment to develop empathy, as “ASD [autism
spectrum disorder] individuals show the ability to produce a basic moral judgment
by relying on external cues such as the action outcomes and the victims' emotional
reactions”); Alan M. Leslie et al., Transgressors, Victims, and Cry Babies: Is Basic
Moral Judgment Spared in Autism?, 1 SOC. NEUROSCIENCE 270 (2006).
150
See Sheryl P. Kubiak et al., Do Sexually Victimized Female Prisoners
Perceive Justice in Litigation Process and Outcomes?, 23 PSYCHOL., PUB. POL’Y, &
L. 39 (2016).

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redemption, which they feel cannot occur within the prison setting.151 Over
time, the criminal justice system and reform advocates have responded to
criticism of punitive approaches by claiming to engage in rehabilitative
measures that arguably deter crime and protect community safety.152 In the
context of some of its most stringent new measures, the criminal justice
system has adopted criminal registry requirements, indefinite involuntary
commitment of sex offenders, and other purportedly rehabilitative
programming, which the courts have deemed to be civil, not punitive, actions,
and therefore beyond the scope of constitutional protections for criminal
defendants.153 This approach is painted as humane and in the best interests of
offenders, but risks the exercise of a different kind of state control over
marginalized communities.154
For example, in 2020 the Supreme Court, Appellate Division, of the
State of New York determined that the state Department of Corrections and
Community Supervision had the statutory right to impose an additional
lengthier term of sex offender treatment programming against the inmate’s
wishes.155 The court acknowledged its traditional deference “to the discretion
of correction officials on matters relating to the administration of prison
facilities and rehabilitation programs.”156
In Wisconsin, the involuntary commitment of prisoners with
psychosis and delusions, including forced administration of psychotropic
medications, may be authorized by prison authorities even without a finding
of dangerousness.157 Unlike the general population where a finding of
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151
See Adelina Iftene, The Bad, the Ugly, and the Horrible: What I Learned
About Humanity by Doing Prison Research, 43 DALHOUSIE L.J. 435, 443 (2020).
152
See, e.g., Andrea Craig Armstrong, The Missing Link: Jail and Prison
Conditions in Criminal Justice Reform, 80 LA. L. REV. 1, 4 (2019).
153
See, e.g., Williams v. Annucci, 189 A.D. 3d 1839, at *2 (N.Y. App. Div.
2020) (holding that the sex offender management program is part of a remedial
statute “intended to prevent future crime, rather than a penal statute imposing
punishment for a past crime”).
154
See generally Jennifer A. Brobst, Miranda in Mental Health: Court Ordered
Confessions and Therapeutic Injustice for Young Offenders, 40 NOVA L. REV. 387
(2016) (addressing the legal risks of court-ordered mental health treatment of
juvenile sex offenders who are forced to disclose additional crimes).
155
Id.
156
Williams v. Annucci, 189 A.D. 3d 1839, at *2 (N.Y. App. Div. 2020).
157
In re Mental Commitment of Christopher S., 878 N.W. 2d 109 (2016)
(addressing a state correctional inmate diagnosed with schizophrenia paranoid type).

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applied the state’s statutory commitment scheme in which the inmate “can
receive treatment for his or her mental illness” when the prison system cannot
adequately provide it.158
Public health advocates often see their role as one of a beneficent
power and service to society, with secondary attention paid to the autonomy
of the individual. As Lawrence Gostin wrote:
[P]roperly conceived correctional facilities could present a
public health opportunity. Prior to incarceration, many
inmates are in poor health, and many have communicable
diseases, which are difficult to identify and treat among the
poor, the homeless, and the disenfranchised. Society is illserved by policies that fail to deal with, and even exacerbate,
inmates’ diseases during confinement . . .. Therefore, it is far
more cost effective and beneficial to inmates, their families,
and to society to use the period of confinement to reach this
otherwise elusive group.159
However, individual autonomy is critical. Not all treatment options are
efficacious or well tested, such as physical and chemical restraints for mental
illness, which may have serious side effects.160 The marginalized
communities Gostin writes of are marginalized further if the criminal justice
system imposes a coercive, medicalized regime. Public health scholar Scott
Burris argues more clearly for patient autonomy and mutual respect in the
prison setting, contending that “controlling TB is every bit as dependent on
cooperation between health workers and patients as controlling HIV.”161
Even Sweden, a nation known for excellence in providing a social safety net,
has experienced growing criticism of its welfare state for creating too much

158

Id. at 119.
Lawrence O. Gostin, The Resurgent Tuberculosis Epidemic in the Era of
AIDS: Reflections on Public Health, Law, and Society, 54 MD. L. REV. 1, 69–70
(1995).
160
See Lamiece Hassan et al., Prevalence and Appropriateness of Psychotropic
Medication Prescribing in a Nationally Representative Cross-Sectional Survey of
Male and Female Prisoners in England, 15 BMC PSYCHIATRY 346 (2016) (“Whilst
psychotropic drugs can help to manage symptoms of mental illness, they have also
been linked with addiction, unpleasant side effects, physical health risks and even
early mortality.”).
161
Scott Burris, Prisons, Law and Public Health: The Case for a Coordinated
Response to Epidemic Disease Behind Bars, 47 U. MIAMI L. REV. 291, 306 (1992).

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159

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social control, learned helplessness, boredom, and crime, with criminologists
seeing calls for punishment of crime, rather than treatment.162
Self-determination lies at the core of freedom, a fact which the
dissenting justices in Kahler v. Kansas recognized in the context of criminal
culpability, recalling early texts which set the test for insanity upon a showing
of a mental disorder which “takes away from the party all moral agency and
accountability.”163 Although reform of the insanity defense is beyond the
scope of this article, the decision does require reflection on the value in
respecting the autonomy of criminal defendants, including those with mental
illness and intellectual disabilities. Punishment should be a means to some
good, whether making amends, counseling against future harm, or restraint
for public safety; and, from a theological perspective, St. Thomas Aquinas
would argue that evil must be overcome by good, promoting “charity
whereby we are bound to love all men.”164 Sentencing should also be cautious
and critical in determining whether psychological measures and assessments
are not misused in sentencing. For example, neuroimaging results related to
psychopathy have evinced racial bias resulting in higher sentencing.165
One benefit is that mental health research promotes the value of
censure to ultimately increase a sense of well-being in the individual who is
censured. Communicative public condemnation of the offender is meant to
create feelings of guilt, self-awareness and remorse,166 but whether that can
occur if the sentence is disproportionately severe or inequitable is doubtful.
Regardless of the mental health status of the offender, there is a point when
a sentence is simply too long to serve any rehabilitative purpose. In the

162

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Henrik Tham, From Treatment to Just Deserts in a Changing Welfare State
in BEWARE OF PUNISHMENT: ON THE UTILITY AND FUTILITY OF CRIMINAL LAW 89,
114, (Annika Snare ed., 1995).
163
Kahler v. Kansas, 140 S. Ct. 1021, 1043 (2020) (Breyer, J., dissenting)
(citation omitted).
164
St. Thomas Aquinas, Whether Vengeance is Lawful in PHILOSOPHICAL
PERSPECTIVES ON PUNISHMENT 135, 135 (Gertrude Ezorsky ed., 1972).
165
See Allison J. Lynch & Michael Perlin, “I See What is Right and Approve,
But I Do What is Wrong”: Psychopathy and Punishment in the Context of Racial
Bias in the Age of Neuroimaging (2015) (unpublished manuscript) (on file with
author).
166
See FRANCES E. GILL, THE MORAL BENEFIT OF PUNISHMENT: SELFDETERMINATION AS A GOAL OF CORRECTIONAL COUNSELING 18–21 (2003)
(describing counseling strategies where suffering will “pave the way for reflection
on the wrongness of his offense” and the need to take responsibility).

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United States, sentences for many are simply too long, which motivated the
recent enactment of the First Step Act.167
Again, whether all offenders are able to attain a sense of reforming
contrition from the criminal justice system is questionable. Juvenile
offenders, who are still undergoing rapid brain and moral development, may
be more receptive to learning empathy.168 On the other hand, an offender’s
mere desire to reform without the skills or capacity to do so, because of
addiction or mental illness, could be fruitless.169 Perhaps the greatest pending
risk of misusing mental health strategies are those that deprive offenders of
autonomy by suppressing impulses through neurological treatment, and
offering this as an alternative to prison:
Even though the idea of preventing future crimes by
neurotechnical treatment of criminals may, as indicated,
strike some almost as science fictional, from a penal
theoretical perspective, it is more déjà vu. A large part of the
penal theoretical thinking of the last century was heavily
influenced by rehabilitationist ideals.170
A less accommodating view of neuroscientific interventions in the criminal
justice system suggests that public censure remains an important component
of justice for all offenders, communicating a sense of retributive justice and
respecting the autonomy of the individual offender.171 That is, an
167

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First Step Act of 2018, P.L. 115-391, 132 Stat. 5194 (2018). See Richard S.
Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment:
“Proportionality” Relative to What?, 89 MINN. L. REV. 571 (2005) (addressing
Supreme Court jurisprudence upholding long sentences against constitutional
challenge and proposing retributive proportionality limits).
168
Compare Carrie L. Masten et al., Witnessing Peer Rejection During Early
Adolescence: Neural Correlates of Empathy for Experiences of Social Exclusion, 5
SOC. NEUROSCIENCE 496 (2010) (finding that adolescents who themselves feel social
exclusion, may develop neural pathways that promote empathy), with Kristin N.
Henning, What’s Wrong with Victims’ Rights in Juvenile Court?: Retributive v.
Rehabilitative Systems of Justice, 97 CAL. L. REV. 1107, 1148 (2009) (questioning
the effectiveness of victim impact statements in proceedings involving adolescents).
169
GILL, supra note 166, at 29 (2003).
170
Jesper Ryberg, Neuroscientific Treatment of Criminals and Penal Theory in
TREATMENT FOR CRIME: PHILOSOPHICAL ESSAYS ON NEUROINTERVENTIONS IN
CRIMINAL JUSTICE 2 (David Birks & Thomas Douglas, eds., 2018) (arguing that
neurological treatments may provide rehabilitation and comport with retributivist
purposes).
171
David Berks, Can Neurointerventions Communicate Censure? in DAVID
BIRKS & THOMAS DOUGLAS, TREATMENT FOR CRIME: PHILOSOPHICAL ESSAYS ON

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anesthetized offender cannot be truly reformed, even if there is a utilitarian
purpose in forced medication approaches, and the crime victim would yet
again be silenced in the process.

IV.

HOW EMERGENCY RESPONSES TO COVID-19 IN PRISONS
REVEAL SYSTEMIC PRIORITIES

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While sentencing theory can aid an evaluation of rational measures
of justice, in reality, the practicalities of any ordered system are unpredictable
and hybrid approaches emerge.172 Public health emergencies force judges to
prioritize which factors should take precedence in determining whether and
when a prisoner could be released, including considerations of
proportionality, perceived dangerousness to the community, crime victim
perspectives, and health risks.
As seen from the Black Death in the Medieval Ages to modern crises
such as the AIDS epidemic, plague can bring discredit to political leadership
when it appears to fail to come to the defense of the common welfare, leading
to lawlessness, distrust, and an incentive for governments to respond with
harsh and restrictive policies.173 Highly communicable contagions, such as
the bubonic plague and smallpox, have impacted culture, class, and
government throughout the centuries, and are increasing in occurrence as
population and climate change bring different species in contact with each
other.174 Even today, culture and politics interfere with scientific and medical
best practices. For example, despite a global vaccination campaign in effect
since 2000, measles still killed over 140,000 persons worldwide in 2018, with
some deaths involving parents who refused to allow their children to be
vaccinated, although the campaign prevented an estimated 23.2 million child

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NEUROINTERVENTIONS IN CRIMINAL JUSTICE (2018) (suggesting that
neurointerventions with harmful side effects would be the only means of
communicating censure as punishment, which would be inhumane and
unacceptable).
172
Cf. Gabriel A. Fuentes, Federal Detention and “Wild Facts” During the
COVID-19 Pandemic, 110 J. CRIM. L. & CRIMINOLOGY 441, 442 (2020)
(“‘wild facts’ are ‘subtle, unexpected particulars’ that lie not in law but in human
experience, and that militate against the mechanical and impersonal application of a
society's laws.”).
173
See DAVID HERLIHY, THE BLACK DEATH AND THE TRANSFORMATION OF THE
WEST 64, 69 (1997).
174
See Robert S.Gottfried, A Natural History of the Plague and Other Early
European Diseases in THE BLACK DEATH 29 (Don Nardo ed.,1999).

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deaths.175 More coercive modern public health approaches rapidly gaining
political clout as the COVID-19 epidemic rages on are, at times, justifiably
more concerned with the survival of the human species than with
considerations of individual civil liberties. However, this temporary exercise
in enhanced state control can shift public willingness towards diminishing
civil liberties after the emergency subsides.

A. Pre-COVID-19 Legal Approaches to Contagion in Prison

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In the prison system, the widespread and imminent risk of contagious
disease permits a unique view into how the judicial system reevaluates the
balance of interests between public and private priorities. According to the
Supreme Court of Oregon, the role of government in such circumstances is
paramount:
As we all know, a novel coronavirus was first detected in
late 2019, and it has spread rapidly across the globe, killing
hundreds of thousands of people. Even more people have
fallen ill, and healthcare systems in cities around the world
have been overwhelmed, including in the United States. As
the virus has spread, government leaders have taken actions
to protect people in their jurisdictions from illness and death.
They have done so in constantly changing circumstances,
and they have responded to new information about the virus
and its effects as it has become available.176
In 2020, when the deadly and highly contagious COVID-19 virus struck the
prison environment with a vengeance,177 judges and prison authorities were
175

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Centers for Disease Control and Prevention, Progress Toward Regional
Measles Elimination – Worldwide, 2000–2018, 68 MORBIDITY & MORTALITY
WKLY.
REP.
1
(Dec.
6,
2019),
https://www.cdc.gov/mmwr/volumes/68/wr/pdfs/mm6848a1-H.pdf.
176
Elkhorn Baptist Church v. Brown, 366 Ore. 506, 509 (2020) (addressing a
challenge to the Governor’s Executive Order to limit the size of gatherings to ensure
social distancing and reduce COVID-19 transmission).
177
See Emily Widra, Visualizing Changes in the Incarcerated Population
During COVID-19, PRISON POL’Y INITIATIVE (Sept. 10, 2020),
https://www.prisonpolicy.org/blog/2020/09/10/pandemic_population_changes/
(identifying higher rates of COVID-19 transmission and deaths in the prison
population than in the general population); Dan Rozenzweig-Ziff, Incarcerated
Texans are Dying from COVID-19 at a Rate 35% Higher than Rest of the U.S. Prison
Population, UT Study Finds, TEXAN TRIB. (Nov. 10, 2020),
https://www.texastribune.org/2020/11/10/texas-prison-deaths-coronavirus/.

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faced with an influx of varied legal motions to release prisoners early for
their own safety.
For example, in Illinois, Governor Pritzker issued an Executive
Order pursuant to the state’s Emergency Management Agency Act
specifically setting aside statutory restrictions so as to grant the Department
of Corrections Director “with discretion to use medical furloughs to allow
medically vulnerable inmates to temporarily leave IDOC facilities, when
necessary and appropriate and taking into account the health and safety of
the inmate, as well as the health and safety of other inmates and staff in IDOC
facilities and the community[.]”178 By June 2020, the Centers for Disease
Control and Prevention reported that the case rate for COVID-19 was 5.5
times higher among the prison and jail populations than among the general
populations.179 “Mass testing in select prisons revealed wide COVID-19
outbreaks, with infection rates exceeding 65% in several facilities.”180
At the federal level, in March 2020, U.S. Attorney William Barr
issued a memorandum encouraging the Bureau of Prisons to exercise its
authority under 18 U.S.C. § 3624(c)(2) to permit home confinement rather
than incarceration, in order to avoid risks to certain prisoners from COVID19. Specifically, for “some at-risk inmates who are non-violent and pose
minimal likelihood of recidivism and who might be safer serving their
sentences in home confinement rather than in BOP facilities.”181 By January
2021, the Office of the Attorney General issued an additional memorandum
reminding the Bureau of Prisons that home confinement measures were only
temporary and that prisoners should be “recalled” to correctional facilities
following the covered emergency period under the Coronavirus Aid, Relief,
and Economic Security (CARES) Act if they had not completed their
sentences.182 By December 2020, approximately 12% of the federal prison
178

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Governor Pritzker, COVID-19 Executive Order No. 19, State of Illinois
(April 6, 2020).
179
Brendan Saloner et al., COVID-19 Cases and Deaths in Federal and State
Prisons, 324 JAMA 602, 602–03 (Aug. 11, 2020).
180
Id. at 603.
181
OFFICE OF THE ATTORNEY GEN., MEMORANDUM FOR DIRECTOR OF BUREAU
OF PRISONS FROM THE ATTORNEY GENERAL: PRIORITIZATION OF HOME
CONFINEMENT AS APPROPRIATE IN RESPONSE TO COVID-19 PANDEMIC (2020).
182
See Memorandum Opinion from Jennifer L. Mascott, Deputy Assistant
Attorney General to the General Counsel for the Federal Bureau of Prisons, on Home
Confinement of Federal Prisoners After the COVID-19 Emergency (Jan. 15, 2021)
(addressing the Coronavirus Aid, Relief, and Economic Security (CARES) Act); see

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population had been transferred to home confinement, of which 40% would
not have been eligible for such release without emergency authority.183 No
mention was made of crime victim input as a factor of consideration for the
initial decision to engage in home confinement in these memoranda, nor of
their input regarding return to a correctional facility.
Public health advocates and scholars were well aware that prisons
would be among the hardest hit by a disease pandemic, because they had
already experienced managing other contagions.184 However, this current
pandemic presented an opportunity to reduce growing concerns related to
mass incarceration and to test the role and value of victim involvement in the
criminal justice system. Also, in order to understand how a pandemic brings
to light criminal justice system priorities, understanding the parallel coercive
practices and policies of public health is also key. In an era involving more
frequent global contagions, civil rights advocates in the United States, prior
to the COVID-19 epidemic, had been arguing for greater attention to the
constitutional rights to resist public health quarantines and the risk to civil
liberties in granting public health authorities excessive, indiscriminate
power.185 Deep ethical concerns are at stake. For example, in In re
Washington, a patient mother who had recently delivered a baby in the
hospital refused to cooperate when she was ordered into quarantine for a
diagnosis of non-infectious tuberculosis, and was forced by court order to
remain in long-term quarantine in the county jail, rather than a health facility,
to prevent the disease from becoming contagious.186

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also Declaring a National Emergency Concerning the Novel Coronavirus Disease
(COVID-19) Outbreak, 85 Fed. Reg. 15,337 (2020). The “‘covered emergency
period’” starts on “the date on which the President declared a national emergency
under the National Emergencies Act with respect to the Coronavirus Disease 2019
(COVID-19)” [March 13, 2020] and ends “30 days after the date on which the
national emergency declaration terminates.” CARES Act § 12003(a)(2).
183
Memorandum Opinion from Jennifer L. Mascott, at 3.
184
See Lawrence O. Gostin et al.¸ The Law and the Public’s Health: A Study of
Infectious Disease Law in the United States, 99 COLUM. L. REV. 59, 99 (1999)
(“Population growth, urban migration, and overcrowding in the congregate settings
of prisons, homeless shelters, mental institutions, nursing homes, and child care
centers facilitate person-to -person transmission of disease.”).
185
See Wendy E. Parmet, Quarantining the Law of Quarantine: Why
Quarantine Law Does Not Reflect Contemporary Constitutional Law, 9 WAKE
FOREST J.L. & POL’Y 1 (2018).
186
In re Washington, 304 Wis. 2d 98, 128 (2007).

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Reflecting on the Ebola crisis that emerged in the summer of 2014
and other global epidemics, Professor Wendy Parmet argued that “quarantine
is rarely an effective public health strategy, and no evidence exists that it has
proven effective in reducing morbidity and mortality in the U.S. in the last
half century.”187 Public health scholar Lawrence Gostin also called for less
compulsory measures to curb contagions when he wrote, regarding the
spread of tuberculosis, that coercive measures may counterintuitively deter
more persons from seeking testing and treatment, thereby increasing the risk
to public health.188 In stark contrast, during the COVID-19 pandemic, when
the disease was swiftly spreading among inmates, guards and other staff,
prisoners cried out for greater quarantine and social distancing measures, or
to be released if that could not be accomplished. Those most vulnerable to
COVID-19 in the general population, low-income persons of color, have
comprised those most likely to face higher incarceration rates in the United
States.189
The numerous serious contagious illnesses that have stricken prison
populations over the years have been approached with varying urgency by
the courts.190 Prior to the COVID-19 pandemic, prisoners had filed early
release or transfer claims on the basis of medical conditions, including

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187
See generally Parmet, supra note 185, at 28– 29 (criticizing China, as well,
for “wide-scale quarantines for SARS”).
188
Gostin, supra note 159, at 130.
189
See Lucy Erickson, The Disproportionate Impact of COVID-19 on Women
of Color, SOC’Y FOR WOMEN’S HEALTH RES. (Apr. 30, 2020), https://swhr.org/thedisproportionate-impact-of-covid-19-on-women-of-color/; Michael Ollove, How
COVID-19 in Jails and Prisons Threatens Nearby Communities, PEW CHARITABLE
TRUSTS: STATELINE BLOG (July 1, 2020), https://www.pewtrusts.org/en/researchand-analysis/blogs/stateline/2020/07/01/how-covid-19-in-jails-and-prisonsthreatens-nearby-communities.
190
See generally Uribe v. Perez, No. 5:17-00558 CJC (ADS), 2020 WL 1318358
(C.D. Cal. Mar. 3, 2020) (providing an overview of cases where the courts have
found an unacceptable and serious health risk of disease in prison, such as MRSA,
hepatitis C, HIV, and tuberculosis, as well as environmental hazards, such as tobacco
smoke and asbestos, but declining to recognize norovirus as an unacceptable health
risk).

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dangerous airborne contagions191 or exposure to bloodborne pathogens.192
The courts considered whether the risks were those experienced primarily in
prison or also in the society at large.193 Even with the latitude to consider
numerous factors, state decisionmakers have chosen not to weigh crime
victims’ perspectives to any significant extent in these early release cases. A
prisoner’s medical condition, however, has garnered attention, possibly more
in previous years than during the reviews of COVID-19 compassionate
release petitions, as will be discussed below.194 This may have been due not
only to timing, where the courts now face the urgency of a global pandemic,
but to the sheer number of cases involved and the practical need to make a
quick determination without a public hearing.
In any case, the courts consistently have recognized that the
government has a duty to care for the health and safety of its prisoners. Under
the common law parens patriae doctrine, the United States Supreme Court
has held that prisoners under government supervision are entitled to a
minimal level of medical care, a right that the general population does not
have.195 The Court referred to the “common-law view that ‘(i)t[sic] is but just
that the public be required to care for the prisoner, who cannot by reason of
the deprivation of his liberty, care for himself.’”196 As Justice Stevens stated

191

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See, e.g., Jackson v. Brown, No. 1:13–cv–1055–LJO–SAB, 2015 WL
5522088 (E.D. Cal. Sept. 17, 2015) (denying a motion for judgment on the pleadings
in a racial discrimination claim as to whether California state prison authorities were
required to better protect at-risk African-American inmates from the deadly flu-like
infection known as Valley Fever), rev’d in part by Hines v. Youssef, 914 F. 3d 1218
(9th Cir. 2019) (denying a race-based equal protection claim for risk of contracting
Valley Fever).
192
See Patel v. County of Orange, No. 8:17-cv-01954-JLS-DFM, 2019 WL
4238875 (C.D. Cal. June 19, 2019) (addressing plaintiffs’ claim that being forced to
clean up blood after an inmate’s suicide, without adequate protective gear, caused
them to experience “depression, insomnia, nightmares, an inability to eat, panic
attacks, and loss of libido”).
193
Jackson v. Brown, 2015 WL 5522088, at *23 (“And to determine whether
the risk posed is one society is willing to tolerate, the Court must assess whether the
complained-of exposure to cocci and the resultant incidence rates of Valley Fever
are similar to those of other communities where cocci are endemic.”).
194
See infra Part IV(B).
195
See DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199200 (1989); Estelle v. Gamble, 429 U.S. 97 (1976).
196
Estelle, 429 U.S. 97 at 103-04.

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in dissent in Estelle v. Gamble, “denial of medical care is surely not part of
the punishment which civilized nations may impose for crime.”197
Since the 1980s, human immunodeficiency virus (HIV), the virus
that causes acquired immunodeficiency syndrome (AIDS) has remained a
systemic concern among inmates in terms of adequacy of treatment, the risk
of infection among inmates due to drug use and needle-sharing, and
transmission through sexual contact.198 The latter inferred a lack of security
in the prison setting by the inability to prevent forced sexual contact,
demonstrated in part by the necessity for the legal protections of the Prison
Rape Elimination Act of 2003.199 By 1997, the rate of confirmed AIDS in the
U.S. prison population was “more than five times higher than the rate in the
general population.”200 Ten years later, the incidence of AIDS in prison has
remained three to five times the incidence in the general population.201 While
mandatory testing is not required by many jail or prison facilities, in some
jurisdictions crime victims may require HIV testing of offenders if the victim
was placed at risk of infection.202 For example, in the State of New York
victims of sexual violence offenses may require a defendant be tested for HIV
and that the results be communicated to the victim and defendant.203
Segregation of prisoners with HIV has, however, been successfully
challenged as it restricts available programming and creates unnecessary and
harmful stigma.204
197

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Id. at 116 (Stevens, J., dissenting).
See generally Basas, supra note 96.
199
Prison Rape Elimination Act of 2003, 42 U.S.C. § 15601 et seq. (enacting
the first federal law intended to deter sexual violence against prisoners). See also
David M. Siegal, Rape in Prison and AIDS: A Challenge for the Eighth Amendment
Framework of Wilson v. Seiter, 44 STAN. L. REV. 1541 (1992).
200
Jin Hee Lee, Excerpts from Jailhouse Lawyer’s Manual, Fifth Edition,
Chapter 22: AIDS in Prison, 31 COLUM. HUM. RTS. L. REV. 355, 357 (2000).
201
Liza Solomon et al., Survey Finds that Many Prisons and Jails Have Room
to Improve HIV Testing and Coordination of Postrelease Treatment, 33 HEALTH
AFFS.
434,
434
(2014),
https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.2013.1115.
202
Id. at 440 (finding that 37% of prison systems studied mandate routine HIV
testing of prisoners).
203
E.g., N.Y. CRIM. PROC. LAW § 390.15 (Westlaw 2021).
204
See Henderson v. Thomas, 913 F. Supp. 2d 1267 (M.D. Ala. 2012) (holding
that segregation of prisoners on the basis of HIV-status violates the Americans with
Disabilities Act and the Rehabilitation Act, which permit suits against prisons as
public entities). But see Onishea v. Hopper, 171 F.3d 1289 (11th Cir. 1999), cert.
denied, 528 U.S. 1114 (2000) (denying relief to prisoners under section 504 of the
198

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Tuberculosis has also posed challenges for inmates in correctional
facilities. Because HIV causes a weakened immune system, it increases the
risk by a hundred fold of developing active tuberculosis among those who
have latent tuberculosis.205 By 1980, in New York state correctional facilities,
ninety-five percent of inmates with tuberculosis were infected with HIV, as
well.206 As an airborne disease, the close living quarters and lack of
ventilation, as well as inadequate medical services, contributed to the
tuberculosis crisis.207 Lawrence Gostin attributed some of the rapid increase
in transmission of tuberculosis to the overcrowding that occurred from
mandatory sentencing of drug offenses in the 1990s and resulting mass
incarceration.208
State jurisdictions evaluating early release claims will not employ
the factors discussed below under the federal First Step Act of 2018 for
compassionate release.209 Indeed, state law varies more than federal as to
which factors are relevant for release. At sentencing in Michigan, for
example, the trial court would only consider the statutory element of “the
seriousness of the circumstances surrounding” the defendant and the offense,
in addition to a possible medical probation or commutation if the medical
needs of the defendant were sufficiently serious at the time of sentencing.210
The court in at least one case determined that it would not have been
appropriate to impose a more lenient sentence later, even if the trial court had
been aware of the pandemic at the time of sentencing.211 Other efforts to
obtain release in state court, such as judicial release to home confinement,
may not be available even for heightened risks due to COVID-19 if the
defendant was serving a mandatory term and did not produce substantial
supporting documentation of risk from correction officials.212 Still other
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Rehabilitation Act, which prohibits discrimination against an individual with a
disability).
205
Lee, supra note 200, at 370 (citing Centers for Disease Control data).
206
Gostin, supra note 159, at 51.
207
Id. at 52.
208
Id. at 53.
209
See infra Part IV(B).
210
People v. Johnson, No. 350186, 2021 WL 137274, at *4 (Mich. Ct. App.
2021).
211
Id.
212
E.g., State v. Watkins, No. 20AP-313, 2020 WL 6503632, at *9 (Ohio Ct.
App. 2020), granting stay pending appeal, 160 Ohio St. 3d 1516 (Ohio 2020).

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of exhaustion of administrative remedies, including initiation of a
compassionate release claim by prison or parole authorities, before a court of
appeal will consider an order appealable.213
For state prisoners, medical parole continues to be an option for early
release, when inmates have terminal health conditions or may be so
incapacitated that they cannot care for themselves.214 Such policies indicate
that medical parole is an option when an existing medical condition changes.
That is, “[g]enerally, medical parole consideration shall not be given to an
offender when the offender’s medical condition was present at the time of
sentencing, unless the overall condition has significantly deteriorated since
that time.”215 Medical concerns are not the sole consideration where the risk
to public safety upon parole may result in a denial of a petition. Here, the
crime victim’s perspective offers important information to the court. The
California Court of Appeals, for example, held that an inmate who had
become a quadriplegic should receive medical parole as he no longer posed
a threat to public safety, despite the court’s recognition that he had been
sentenced for the heinous crimes of physical and sexual violence against
women, and continued to engage in similar behavior while incarcerated.216
According to the court, “[w]e are satisfied that Martinez’s behavior problems
are ‘some evidence’ that he remains an angry, repulsive person,” but he does
not pose “a reasonable threat to public safety” if released.217
Another avenue for relief in state court is a writ of habeas corpus
alleging illegal confinement due to medical need. For example, the Superior
Court of Connecticut addressed a 58-year-old petitioner with HIV who filed
a habeas corpus petition seeking release from state prison through emergency
compassionate release or medical parole due to the risk of contracting
213

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See People v. Bryant, 2020 WL 5012135, at *1 (Cal. Ct. App. 2020)
(addressing the claim of an inmate convicted of second-degree robbery who had
contracted COVID-19 in state prison).
214
See, e.g., Buckman v. Commissioner of Correction, 484 Mass. 14, 138 N.E.
2d 996 (2020) (holding that restrictive state regulations that require a diagnosis of
terminal illness or incapacitation for a petition to initiate a claim for medical parole
are void as against public policy).
215
Ducksworth v. Louisiana Dep’t of Pub. Safety and Corr., 298 So. 3d 757, 759
(La. Ct. App. 2020) (affirming a dismissal of a petition for medical parole with
prejudice where the defendant presented no medical evidence that his laryngeal
condition had become permanent).
216
In re Martinez, 148 Cal. Rptr. 3d 657, 673 (Cal. Ct. App. 2012) (reversing
denial of a habeas corpus petition for medical parole).
217
Id. at 673-74.

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COVID-19 and its significant risks associated with his lowered immune
system.218 The prisoner informed the court that he had hepatitis C, kidney
problems, cirrhosis of the liver, high blood pressure, and bipolar disorder.219
However, the writ was denied, in part, for procedural reasons: in Connecticut
the granting of medical parole is only within the discretion of the Board of
Pardons and Paroles, not the trial court, and his treating physician in the
prison facility explained that petitioner’s immunity had improved with
medication while in prison.220 In its decision, the trial court quoted the United
States Supreme Court in Farmer v. Brennan, which held that “[t]he
Constitution does not mandate comfortable prisons, but neither does it permit
inhumane ones” pursuant to the Eighth Amendment Cruel and Unusual
Punishment Clause.221
If the prison authorities are not responsive, state and federal prisoners
with medical needs may file constitutional claims under the Eighth and
Fourteenth Amendments of the U.S. Constitution, which may provide
compensatory damage awards as opposed to early release.222 However,
qualified immunity poses a challenge to claimants unless the claimant can
demonstrate that the official violated a constitutional right and that the right
was clearly established at the time of the conduct in question.223 Potential
constitutional claims include assertions that deprivation of medical and
mental health treatment demonstrates the state’s deliberate indifference to the
prisoner’s serious medical needs in violation of the Fourteenth Amendment
Substantive Due Process Clause and the Eighth Amendment Cruel and
Unusual Punishment Clause. For example, the estate of an inmate who
committed suicide while in solitary confinement unsuccessfully brought a
civil rights action against a municipal corrections facility responsible for

McKinnon v. Comm’r of Corr., CV205000659S, 2020 WL 4814245 (Conn.
Super. Ct. 2020).
219
Id. at *3.
220
Id. at *3-4 (explaining that the inmate had also tested negative for COVID19).
221
Id. at *2 (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)).
222
E.g., Hill v. Marshall, 962 F.2d 1209, 1213-15 (6th Cir. 1992) (holding that
deprivation of necessary tuberculosis medication constituted an Eighth Amendment
violation, affirming jury’s award of $95,000 in actual damages).
223
Wood v. Moss, 572 U.S. 744, 745 (2014) (internal citations omitted).

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218

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monitoring the inmate.224 It is a difficult standard to meet, where deliberation
on the part of state actors is required, rather than mere negligence. In a
deliberate indifference claim by an older inmate with Alzheimer’s disease
and other serious medical conditions who alleged delays in treatment, the
court dispatched with the claim “because Dr. Murphy was the only physician
treating more than two thousand inmates.”225
All of these rights must be balanced against “legitimate penological
interests.”226 Constitutional claims related to an inmate’s serious health needs
may consider risks to the public health, such as the denial of a due process
and equal protection claim by a prisoner with HIV who was denied the right
to conjugal visits in consideration of the risk of transmission to the visitor.227
While these civil rights claims may be a wise legal strategy in many
instances, if time is short and the emergency is urgent, they are not an
effective approach. They simply take too long to achieve a disposition,
particularly given their procedural hurdles.
In the early stages of the COVID-19 pandemic, compassionate
release claims were not the first line of defense for inmates. In Wilson v.
Williams, for example, the Sixth Circuit addressed a federal habeas corpus
petition filed as a class action asserting an Eighth Amendment deliberate
indifference claim for alleged failure to provide safe prison conditions during
the pandemic in a low security facility with dormitory-style housing.228 By
April 2020, fifty-nine inmates and forty-six staff members had contracted
COVID-19 in the facility, and six inmates had died.229 The District Court
granted a preliminary injunction and enforcement order against the Bureau
of Prisons on April 22, 2020. Weeks later, on June 9, 2020, the Sixth Circuit
addressed the Bureau of Prisons’ interlocutory appeal. The Bureau of Prisons
admitted the objective factor that the risk of COVID-19 had created “a
Troutman v. Louisville Metro Dep’t of Corr., 979 F.3d 472 (6th Cir. 2020)
(affirming the lower court’s determination that the municipality did not act with
deliberate indifference to serious medical need).
225
Wilson v. Adams, 901 F.3d 816, 822 (7th Cir. 2018).
226
Turner v. Safley, 482 U.S. 78 (1987); see Estelle v. Gamble, 429 U.S. 97,
103 (1976).
227
In the Matter of Doe v. Coughlin, 518 N.E.2d 536 (N.Y. 1987), cert. denied,
488 U.S. 879 (1988).
228
Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020). Habeas relief is also
available to state prisoners who are unconstitutionally confined, pursuant to the
Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(a).
229
Id. at 834.

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224

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substantial risk of serious harm leading to pneumonia, respiratory failure, or
death.”230 But as to the subjective prong, the court in Wilson, in accord with
several other federal Circuit Courts of Appeal, held that the Bureau of Prisons
had not been deliberately indifferent to such risk despite the Bureau’s
struggle to cope with the rapidly evolving events of the pandemic.231
In vacating the preliminary injunction granted by the District Court
in Wilson, the Sixth Circuit held that because the Bureau of Prisons had
engaged in cleaning, social distancing, quarantine, and testing in the facility,
“its failure to make robust use of transfer, home confinement, or furlough to
remove inmates in the medically-vulnerable subclass . . . does not constitute
deliberate indifference.”232 The court noted as a final point that the District
Court should have more carefully considered “the legitimate concerns about
public safety the BOP raised,” as supported by the United States Supreme
Court’s instruction that when the Government is the opposing party in a
motion for injunctive relief, the interests of the opposing party and the public
interest merge.233 Thus, where prisoners are concerned, the voice of the
community and victim is ultimately that of the government. If crime victim
rights are not available, the actual voice of the victim is rendered a nullity.
Administrative, procedural, and time-consuming hurdles are
daunting in a case, such as the following, that involve the high risks of
COVID-19 transmission in a state geriatric prison. In Valentine v. Collier,
the United States Supreme Court denied an application to vacate the Fifth
Circuit’s stay of a preliminary injunction against the Texas Department of
Criminal Justice.234 Even Justices Sotomayor and Ginsberg wrote that
“[n]othing in this Court's order, of course, prevents the Fifth Circuit from
amending its stay. Nor does anything in our order prevent applicants from
seeking new relief in the District Court, as appropriate, based on changed
circumstances.”235 Yet the Fifth Circuit noted in originally issuing the stay of
the District Court injunction that an enforcement order against the
correctional facilities would prevent them “from responding to the COVID-

230

Id. at 840.
Id. at 841; accord Marlowe v. LeBlanc, 810 Fed. Appx. 302 (5th Cir. 2020)
(per curiam); Swain v. Junior, 958 F.3d 1081 (11th Cir.) (per curiam).
232
Wilson v. Williams, 961 F.3d at 844.
233
Id. (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
234
Valentine v. Collier, 140 S. Ct. 1598 (2020).
235
Id. at 1601.

231

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19 threat without a permission slip from the district court.”236 Thus, while
time is of the essence for prisoners at risk of infection, the prison system also
needs flexibility and discretion to adapt in an emergency. Also, the Fifth
Circuit had identified the significant barrier to litigation under the Prison
Litigation Reform Act, pursuant to 42 U.S.C. § 1997e(a), requiring inmates
to exhaust all available administrative remedies prior to filing suit in federal
court to challenge state prison conditions.237 The United States Supreme
Court has outlined very narrow exceptions,238 which have not applied to most
COVID-19 litigation for safer conditions. Thus, for the reasons shown above,
compassionate release under the First Step Act of 2018 ultimately became
the strategy of choice for most inmates seeking relief from the dangers of the
pandemic as it serves as a swifter and more permanent remedy.

B. COVID-19 Compassionate Release Cases Under the First
Step Act

236

The First Step Act of 2018, signed into law on December 21, 2018
by President Trump, allows a defendant to move a federal court to grant
compassionate release after the defendant has “fully exhausted all
administrative rights to appeal a failure of the Bureau of Prisons to bring a
motion on the defendant’s behalf or the lapse of 30 days from the receipt of
such request by the warden of the defendant’s facility, whichever is
earlier.”239 The thirty-day exhaustion period is substantially less than many
other potentially applicable claims, and some jurisdictions have permitted
waiver.240

Valentine v. Collier, 956 F.3d 797, 804 (5th Cir. 2020) (per curiam).
Id. See also Baqer v. St. Tammany Par. Gov’t, No. 20-980-WBV-JCW, 2020
WL 1820040 (E.D. La. Apr. 11, 2020); Denbow v. Maine Dep’t of Corr., No. 1:20cv-00175-JAW, 2020 WL 4736462 (D. Maine Aug. 14, 2020) (holding in a COVID19 related federal habeas corpus claim that one of the remedies not exhausted was
state post-conviction relief).
238
Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016) (including when procedures
are a mere “dead end,” when an “opaque” administrative scheme cannot reasonably
be accessed, and when prison officials “thwart” prisoners from using existing
grievance processes).
239
18 U.S.C. § 3582(c)(1)(A) (2018).
240
See, e.g., U.S. v. Atwi, 455 F. Supp. 3d 426 (E.D. Mich. 2020) (permitting
waiver of the exhaustion requirement for compassionate release); but see U.S. v.
Brown, Crim. No. 3:18-CR-228-DPJ-FKB, 2020 WL 3213415 (S.D. Miss. June 15,
2020), reconsideration denied, 2020 WL 5723524 (S.D. Miss. 2020) (denying a
compassionate release claim without prejudice for failure to exhaust administrative

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237

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Under the United States Sentencing Guidelines, the Sentencing
Commission has stated that “extraordinary and compelling reasons” must
exist for compassionate release.241 There is currently a split in authority
regarding the role of the Bureau of Prisons and whether federal courts may
now “independently determine what constitutes other ‘extraordinary and
compelling reasons’ for compassionate release.”242 Nevertheless, expressly
stated factors include whether:
1) a defendant has a terminal or serious medical condition;
2) a defendant with deteriorating health is at least 65 years old and has
served ten years or 75% of the term of imprisonment;
3) certain family circumstances arise in which a defendant must serve as
a caregiver for minor children or a partner; or
4) the Bureau of Prisons determines other circumstances create
“extraordinary and compelling reasons” for sentence reduction.243
As to the final catch-all factor, no particular sentencing theory,
policy or goal is noted, which provides broad discretion to the trial court and
the Bureau Prisons to favor the priorities that they wish when identifying
reasons for granting or denying a motion for compassionate release. From a
legal practitioner’s perspective, any exercise of government discretion
invites a degree of arbitrariness, and compassionate release decisions have
been no different: “Whether a prisoner is released depends on a host of
influences, including the judge who sentenced them, the warden over the
facility where they are held, and the prosecutors. It involves politics,
geographic influence and aspects of complete randomness beyond the
prisoner's control.”244 Judges cannot help but be influenced by their “own

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remedies); U.S. v. Robinson, Crim. Action No. 1:17CR27-3, 2020 WL 3182719
(N.D. W. Va. June 15, 2020) (denial for failure to exhaust remedies).
241
For a history of the compassionate release statutory framework, see Lindsey
E. Wylie et al., Extraordinary and Compelling: The Use of Compassionate Release
Laws in the United States, 24 PSYCHOL., PUB. POL’Y & L. 216 (2018).
242
See, e.g., U.S. v. Richardson, Crim. No. JKB-09-0288, 2020 WL 3267989
(D. Md. June 17, 2020) (federal courts may judge factors independently); but see
U.S. v. Aruda, 472 F. Supp. 3d 847 (D. Haw. 2020) (only the Bureau of Prisons may
judge the factors for compassionate release).
243
U.S. SENTENCING GUIDELINES MANUAL § 1B1.13 cmt. n.1(A)–(D) (U.S.
SENTENCING COMM’N 2018).
244
Joe D. Whitley et al., A Prisoner’s Dilemma: COVID-19 and Motions for
Compassionate Release, PRACT. INSIGHTS COMMENT, May 28, 2020, 2020 WL
2762836.

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beliefs of morality and proper behavior”245 when assessing release factors.
While such a position is difficult to refute, in a cursory review of the appellate
decisions regarding COVID-19 compassionate release in 2020 and 2021 to
date, some preliminary patterns do emerge as to what is and is not considered
of significance at this historic time.

1. Health and Safety of Prisoners

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With respect to the first factor addressing “a terminal or serious
medical condition,” courts have generally looked to the CDC COVID-19
guidelines to define which medical conditions create a substantial risk of
contracting the virus.246 Courts and inmates have been expected to track the
CDC’s occasional revision of the list of risk factors during the pendency of
an appeal.247
“The mere existence of COVID-19 in society” is not enough to
warrant compassionate release, according to the Third Circuit in United
States v. Raia, a case in which the court denied compassionate release to a
68-year-old inmate with Parkinson’s disease, diabetes, and heart disease.248
Prior to the pandemic, a similar position generally was taken, where the Fifth
Circuit, in evaluating a deliberate indifference constitutional claim, asserted
that “isolated examples of illness, injury, or even death, standing alone,
cannot prove that conditions of confinement are constitutionally inadequate.
Nor can the incidence of diseases or infections, standing alone, imply
unconstitutional confinement conditions, since any densely populated
residence may be subject to outbreaks.”249 This appears to be a consistent
theme in compassionate release jurisprudence. The Southern District of
Mississippi explained,

245

KENNEDY & SACCO, supra note 6, at 184-85.
U.S. v. Patten, Crim. No. 18-cr-073-LM-1, 2021 WL 275444, at *3 (D. N.H.
Jan. 27, 2021); see COVID-19, People with Certain Medical Conditions CENTERS
FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-with-medical-conditions.html (updated Feb. 3,
2021).
247
See U.S. v. Gionfriddo, No. 3:18-cr-00307 (JAM), 2020 WL 3603754, at *3
(D. Conn. July 2, 2020); U.S. v. Belcher, No. 2:19-CR-00019-1-JRG-CRW, 2020
WL 3620424 (E.D. Tenn. July 2, 2020).
248
U.S. v. Raia, 954 F.3d 594 (3d Cir. 2020).
249
Shepherd v. Dallas County, 591 F.3d 445, 454 (5th Cir. 2009) (affirming a
jury verdict for a pretrial detainee denied access to medication with respect to a
section 1983 federal civil rights claim).

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246

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The Court agrees with other courts that have considered
similar arguments and concluded that ‘[g]eneral concerns
about the spread of COVID-19 or the mere fear of
contracting an illness in prison are insufficient grounds to
establish the extraordinary and compelling reasons
necessary to reduce a sentence.’ Were such concerns
sufficient, every federal prisoner would be entitled to a
sentence reduction under § 3582(c)(1)(A).250
However, legal arguments could be made that some inmates with
hypertension or anxiety-related mental health disorders could face intolerable
fears from the knowledge of the risks of COVID-19 and deep frustration with
lack of control over the discretionary factors permitting home confinement
or parole.251 At least one court has mentioned in dicta that mental health
deterioration as a basis for compassionate release would require a
psychological evaluation to rule out malingering before such a petition would
be granted.252 And yet, in the general population, it is widely accepted among
mental health clinicians that a patient with preexisting mental illness will
experience a stronger response due to COVID-19 fears and social distancing,
precipitating relapses and heightened paranoia and distress.253
The drug cases seem to represent a highly mixed approach with little
recognition of the presence of addiction or the success of treatment. A
striking commentary to the Sentencing Guidelines regarding compassionate
release states that “rehabilitation of the defendant is not, by itself, an
extraordinary and compelling reason for purposes of this policy
statement.”254 For example, in United States v. Buford, the Eastern District
of Michigan denied compassionate release to a 50-year-old inmate with a

250

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U.S. v. Brown, Crim. No. 3:18-CR-227-DPJ-FKB, 2020 WL 5723524, at *3
(S.D. Miss. Sept. 24, 2020) (internal citation omitted) (relying on U.S. v. Koons, 455
F. Supp. 3d 285 (W.D. La. 2020)).
251
See, e.g., U.S. v. Mack, Crim. No. JKB-08-348, 2020 WL 3618985, at *2 (D.
Md. July 2, 2020) (rejecting the stress of hypertension as an extraordinary and
compelling reason for compassionate release, as it would be too similar a condition
to “hundreds of other inmates”).
252
U.S. v. Ebbers, 432 F. Supp. 3d 421, 431 n.12 (S.D. N.Y. 2020).
253
See Seshadri Sekhar Chatterjee, Impact of COVID-19 Pandemic on Preexisting Mental Health Problems, 51 ASIAN J. PSYCHIATRY 102071 (2020),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7165115/.
254
U.S. SENTENCING GUIDELINES MANUAL § 1B1.13 cmt. n.3 (U.S.
SENTENCING COMM’N 2018).

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wife and children at home, who had been convicted of drug trafficking and
who had a medical record of hypertension, asthma, diabetes, mild kidney
disease, and had tested positive for COVID-19 but was asymptomatic.255 The
same court granted compassionate release to an inmate convicted of selling
cocaine, who had a kidney condition, latent tuberculosis of the lungs, and
who had family support.256 Judge Haight made a considered point in her view
of the crime victim rights movement that is not often made; that is, that in
drug cases in particular, there is an intersection between offenders and
victims from the same community.257 “We have got to get serious about
illegal drug use and anybody that wants to legalize drugs, please come sit in
my court one day, one week and listen to the victims’ stories and listen to the
defendants’ histories.”258
The particularized factors that could have addressed the health and
wellbeing of vulnerable prisoners seeking early release from COVID-19
have not been met with much compassion under the First Step Act. As
discussed below, the prisoner’s criminal record, disciplinary behavior in
confinement, and time remaining on the sentence have mattered more to the
courts, as an issue of risk of recidivism on public safety and proportionality.
That is, just deserts and the government’s view of the defendant’s risk to
society have predominated, not the prisoner’s health risks during a global
pandemic, nor his or her potential for rehabilitation, and, as will be shown
below, not the exercise of crime victim rights which could inject more
directly a community perspective.

2. Public Safety

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Allowing a focus on public safety as a factor in compassionate
release cases has been fairly consistent, although not usually inclusive of the
crime victim’s perspective. There is some debate as to the applicability of the
Sentencing Guideline’s policy statement regarding the First Step Act of 2018
in this regard.259 Some courts have required consideration of the additional
255

U.S. v. Buford, No. 05-80955, 2020 WL 4040705 (E.D. Mich. July 17, 2020).
U.S. v. Greene, Crim. No. 15-20709, 2020 WL 4581712 (E.D. Mich. Aug.
10, 2020).
257
Judge Lois Haight Interview Transcript, supra note 61.
258
Id.
259
See U.S. v. Gunn, 980 F.3d 1178, 1181 (7th Cir. 2020) (holding that “the
Guidelines Manual lacks an ‘applicable’ policy statement covering prisoner-initiated
applications for compassionate release” under The First Step Act of 2018 and
therefore existing policy statements are inapplicable). At least one subsequent

256

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factor of whether the defendant is “a danger to the safety of any other person
or to the community, as provided in 18 U.S.C. § 3142(g).”260 For this
particular factor, the federal courts have relied on the presentencing report
considering the nature of the defendant’s offense, length of criminal history,
as well as infractions while in custody. Other public safety considerations
include, for example, risks of violence, recidivism, and contagion, as shown
below.
The Western District of North Carolina effectively held such factors
to be a potentially permanent bar to compassionate release:
The Court appreciates the defendant's efforts to rehabilitate
himself through completing educational and substance abuse
programs and the risk that COVID-19 poses to those in
custody. However, the Court is not persuaded that the
defendant would not pose a danger to the community upon
his release because of his repeated history of committing
serious offenses while on conditions of release.261
Courts have also accepted and relied in part on victim impact
statements expressing continued fear for their safety, such as one in which
the offender had only recently been arrested for hate crimes against the victim
“and other Black members of our citizenry.”262 When crime victim and public
safety are considered for prisoners seeking compassionate release, the
Seventh Circuit indicated that when the nature of the offense included death
threats rather than physical conduct, the inmate’s terminal cancer and risk of
contracting COVID-19 would not override the interest in public safety.263 In

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decision has held that as 18 USC § 3553(a)(2)(C) already requires that a factor of
sentencing include the need to “protect the public from further crimes of the
defendant,” whether section 3142(g) is applicable to ensure victim and public safety
makes little difference. See U.S. v. Burnley, 834 F. App’x 270 (7th Cir. 2021); see
also U.S. v. Aruda, 472 F. Supp. 3d 847 (D. Haw. 2020) (applying section 3553(a)
to determine that a compassionate release petition should be denied as against public
safety).
260
U.S. SENTENCING GUIDELINES MANUAL § 1B1.13(2) (U.S. SENTENCING
COMM’N 2018).
261
U.S. v. Hardin, No. 3:17-cr-00200-RJC-DSC, 2020 WL 4700724 (W.D. N.C.
Aug. 13, 2020) (relying primarily on the dangerousness factor to deny compassionate
release).
262
See U.S. v. Desimas, No. 2:20-cr-00222-RAJ, 2021 WL 289336, at *2 (W.D.
Wash. Jan. 28, 2021).
263
U.S. v. Burnley, 834 F. App’x 270 (7th Cir. 2021) (relying also on the
inmate’s lack of remorse and disciplinary violations while incarcerated).

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contrast, the Eastern District of Pennsylvania granted a compassionate
release petition for an ill prisoner who had served 17 years of a 20-year
sentence for low-level drug dealing and who had no violent criminal record,
also noting that he had a reentry plan and family.264 The court explained that
“[n]one of these reasons alone is extraordinary and compelling,” but “taken
together” they are, including the lack of risk to public safety.265
Finally, the very health condition that increases the risk of COVID19 transmission may also form the basis of the reason to deny compassionate
release in the interests of public safety, such as drug addiction and continued
drug use266 or an inmate who has already contracted COVID-19.267 With
respect to unsanitary and overcrowded jail conditions for pretrial detainees
in Louisiana, the court agreed that it would serve the public interest if the
detention facility took greater care of detainees, remarking: “Plaintiffs point
out that pre-trial detainees are housed for a relatively short period of time and
are often released back into the community, and that the injunction [to ensure
COVID-19 safety precautions] will prevent unnecessary illness in a group of
people who will soon return to live among the general population.”268 Thus,
coercive public health interests in quarantine are shown to override the
prisoner’s own health risks and vulnerabilities.

3. Victim Impact

264

Only occasionally is the crime victim’s voice ever noted or
considered,269 but it also seems that most federal compassionate release cases
U.S. v. Rodriguez, 451 F. Supp. 3d 392 (E.D. Pa. 2020).
Id. at 401.
266
See U.S. v. Aruda, 472 F. Supp. 3d 847 (D. Haw. 2020).
267
U.S. v. Riley, No. 14-cr-30055, 2020 WL 4036381 (C.D. Ill. July 17, 2020).
268
Baqer v. St. Tammany Par. Gov., 2020 WL 1820040, at *4, 14 (E.D. La. Apr.
11, 2020) (failing to circumvent the strict exhaustion requirements of the Prison
Litigation Reform Act, and noting that Section 3142(g) also applies to release of
pretrial detainees).
269
E.g., U.S. v. Apicella, No. 2:18-cr-49-FtM-38NPM, 2020 WL 7260760
(M.D. Fla. Dec. 10, 2020) (explaining that the victim’s objection to compassionate
release was taken into account and that release would violate the victim’s right to
reasonable protection under the Crime Victim’s Rights Act, 18 U.S.C. § 3771(a)(1));
U.S. v. Bischoff, 460 F. Supp. 3d 122, 128 (D. N.H. 2020) (considering victim’s
opposition to compassionate release of an offender convicted of fraud, but granting
release due to his health risks); U.S. v. Ebbers, 432 F. Supp. 3d 421 (S.D.N.Y. 2020)
(explaining that the federal District Court had sua sponte required the Government
to notify the victims in the case of the petition for compassion release in accordance
with the Crime Victims’ Rights Act).

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265

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addressed have been nonviolent or victimless.270 Certainly, in some
emotionally difficult cases, victims of crime may not wish to be heard on the
matter of compassionate release,271 or they may feel even more strongly
regarding the need to communicate their wishes to the court.272 They also
may feel quite differently from each other regarding the same offender’s
petition for compassionate release.273
At the federal level, pursuant to the Crime Victims’ Rights Act,
victims of crime have the right to notice of any public court proceeding
involving the crime or “of any release or escape of the accused.”274 Victims
also have the right to be heard at any public proceeding involving “release,
plea, sentencing, or any parole proceeding.”275 The key limitation is the term
“public proceeding.” With respect to managing compassionate release
motions under section 603(b) of The First Step Act, in August 2020, the Chief
Justice of the Southern District of Illinois issued an Administrative Order
stating that “the U.S. Attorney’s Office is permitted to provide notice of any
motion for compassionate release to any victim.”276 The Order only briefly
270

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E.g., U.S. v. Snow, Crim. Action No. 5:18-CR-52-TBR, 2021 WL 260667
(W.D. Ky. Jan. 26, 2021) (denying the petition of a victimless offender, where
“[g]ranting him compassionate release when he has served only 14 months of a tenyear sentence would also lead to unwarranted sentence disparities and would be
unjust in light of the serious and reckless nature of his crimes.”).
271
E.g., U.S. v. Chambers, No. 08-cr-30057, 2020 WL 6270274 (S.D. Ill. Oct.
23, 2020), pending appeal, U.S. v. Chambers (7th Cir. 2020) (explaining the victim
declined to comment regarding a petition for compassionate release by an offender
convicted of enticement of minors and transportation of child pornography); U.S. v.
Watson, No. 3:18-cr-00025-MMD-CLB-1, 2020 WL 4251802 (D. Nev. July 22,
2020) (requesting victim responses regarding a petitioner convicted of possession of
child pornography, but receiving none).
272
U.S. v. Cotterman, No. CR-07-01207-001-TUC-RCC (CRP), 2020 WL
6395444 (D. Ariz. Nov. 2, 2020) (holding that to release a child sexual abuse
offender after only one-third of his sentence was complete “would be an affront to
the victim’s sense of justice”).
273
See, e.g., U.S. v. Doobay, No. 3:16-cr-122-J-32MCR, 2020 WL 5749921
(M.D. Fla. Sept. 25, 2020) (noting that one crime victim supported release of a
petition involving mail and wire fraud, while other crime victims in the case opposed
release); U.S. v. Williams, 456 F. Supp. 3d 414 (D. Conn. 2020).
274
Crime Victim Rights Act, 18 U.S.C. § 3771(a)(2) (2018).
275
Id. at § 3771(a)(4).
276
In re Compassionate Release Provision of the First Step Act of 2018, Admin.
Order
No.
265,
(S.D.
Ill.)
(Aug.
14,
2020),
https://www.ilsd.uscourts.gov/Forms/AdminOrder265FourthAmendment.pdf
(addressing the First Step Act of 2018, P.L. 115-391, 132 Stat. 5194 (2018)).

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recognized the Crime Victims’ Rights Act, including its required notice to
victims and a right to be heard in public hearings related to an inmate’s
release.277 However, due to the “volume of motions being filed” within a
short time,278 a number of the decisions of courts in this jurisdiction appear
to have occurred without a public hearing and involved “victimless” drug
crimes, so crime victims were not usually involved.279 The Administrative
Order explicitly requested that the Bureau of Prisons provide counsel with
the defendant’s “medical records” for the six-month period prior to the filing
of the motion for compassionate release, but made no mention of other types
of records, including those involving crime victim perspectives and
impacts.280 The U.S. Attorney’s Office would be given fourteen days to
respond to a compassionate release motion,281 and the court would rely
heavily on the U.S. Probation Office to help determine factors that influence
the decision to release the defendant early, broadly considering “the needs
and/or risk of the defendant.”282
Thus, the existence of rights does not equate to the availability of
rights for victims of crime. The type of offense may have an impact. With
respect to property crime victims and political corruption, some courts and
crime victims have taken a harsh stance despite a lack of violence. Bernie
Madoff’s compassionate release petition was denied by the court, which took
into account that 520 of his victims wrote to the court, of which 96%
advocated for denial of release.283 In United States v. Gionfriddo, the District

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See U.S. v. Haynes, 456 F. Supp. 3d 496 (E.D. N.Y. 2020) (deciding that
victim statements and notification were not required under the Crime Victims’
Rights Act because the court would assess the petition on the writings, not in a public
hearing).
278
In re Compassionate Release Provision of the First Step Act of 2018, supra
note 276.
279
Correspondence with Federal Public Defender for the Southern District of
Illinois, Melissa Day (Jan. 12, 2021). “So far, I have not had any public hearings on
cases with victims - and very few hearings whatsoever on the coronavirus
compassionate release cases (I believe I had one or two hearings early on in the bond
context, not in a straight compassionate release context). Most coronavirus
compassionate release cases are simply decided on the briefs and review of the
record. In my experience, most of these cases are ‘victimless’ in that they are drug
cases.” Id.
280
In re Compassionate Release Provision of the First Step Act of 2018, supra
note 276.
281
Id.
282
Id.
283
U.S. v. Madoff, 465 F. Supp. 3d 343 (S.D. N.Y. 2020).

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Court of Connecticut denied the compassionate release petition of a 69-yearold inmate with asthma, convicted of mail and wire fraud, who had been a
former attorney and mayor, stealing over one million dollars from legal
clients and his disabled brother.284 The court took into account victim impact
statements addressing the compassionate release petition, sharing that “[h]is
most recent victims, the law firm and his brother, have voiced their objection
to his early release, and expressed their concern that he might reoffend.”285
In U.S. v. Davis, the Central District Court of California denied
compassionate release of an offender convicted of fraud, contemplating that
some of the elderly victims in the case had expressed fears of the offender
should they submit a victim statement or should the offender be released.286
One cannot help but question the imbalance in the number of victims
willing to submit victim impact statements in cases involving nonviolent
property crimes or on behalf of minor victims who likely have little say as to
whether a family member submits a statement on their behalf. Far fewer cases
involving adult victims of violent crime emerge upon review of COVID-19
compassionate release cases to date.287 Whether the relative absence is due
to fear, coercion, or love in a family-involved case, it does manifest that
crime victim impact statements, in general, play a key role but cannot
substantially assist the courts in ensuring equitable sentencing among
offenders. In many cases, one must also question whether the Government
actually complied with the Crime Victim Rights Act and notified the crime
victim of the petition for compassionate release.288 If no public hearing is

U.S. v. Gionfriddo, 2020 WL 3603754
Id. at *4. See also U.S. v. DiBiase, No. 12 Cr. 834 (ER), 2020 WL 5525629
(S.D. N.Y. Sept. 14, 2020) (denying compassionate release for an offender convicted
of racketeering, considering, in part, multiple victim impacts statements objecting to
release and expressing their continued trauma); U.S. v. Israel, No. 05 CR 1039 (CM)
2019 WL 6702522 (S.D. N.Y. Dec. 9, 2019) (considering the victim’s objection to
compassionate release related to a massive investor fraud scheme).
286
U.S. v. Davis, No. EDCR 17-00277 JLS, 2020 WL 6600169 (C.D. Cal. Apr.
21, 2020).
287
See, e.g., U.S. v. Cannon, No. 3:17-CR-174, 2021 WL 231100, at *3 (D.
Conn. Jan. 22, 2021) (denying a petition for compassionate release from an offender
with a history of domestic violence and firearms offenses in the interests of public
safety, without mention that the family victims ever exercised (or were notified of)
their right to communicate their perspective to the court).
288
See U.S. v. Webster, Crim. No. 3:91cr138 (DJN), 2020 WL 618828 n.1 (E.D.
Va. Feb. 10, 2020) (judicially chastising the U.S. Attorney for failing to present or

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285

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held on a petition for parole or early release, then the federal Crime Victim
Rights Act would not require that the victim be given an opportunity to be
heard.289 Even so, the courts will still speak for the victim in the absence of
their express views, such as the District Court in the Eastern District of
Virginia, which stated: “allowing this twice-convicted murderer to walk free
before he has completed his sentence would be unjust to his victims and the
public at large.”290
The cases above represent instances in which the court directly based
its decisions, at least in part, on victim impact statements related to COVID19 compassionate release petitions. The question remains whether crime
victims and offenders, who are often members of the same communities,
would inform the court and Bureau of Prisons as to the relevant factors more
effectively than the present approach to the crisis in which state actors may
disregard or sidestep individual interests and rights. In other cases, the court
noted the position of crime victims, but ruled differently. More often than
not, the perspective of the larger community potentially impacted was also
not considered. Although prisoners may be housed far away from where they
had lived, or where they may be released, during imprisonment, prisoners
remain residents of a larger community beyond the prison walls. This was
made apparent where COVID-19 transmission passed into the correctional
facilities and into the neighboring communities as staff went to and from
work at the facility and prisoners were released.291 Usurping the community
and crime victim voice as a matter of state control disregards the porous
nature of risks relevant to incarceration, where community voices are vital
not only with regard to proportionality of sentencing, but also to public health
risks.
Overall, the apparent message of many of the judicial decisions
addressing First Step Act compassionate release petitions is that traditional
theories of retribution, deterrence, and proportionality to ensure justice are
paramount, rather than rehabilitation, and the crime victim rights movement

mention attempts to notify the murder victim’s family in a compassionate release
hearing).
289
See supra notes 269 and 270.
290
U.S. v. Webster, 2020 WL 618828, at *8.
291
See Michael Ollove, How COVID-19 in Jails and Prisons Threatens Nearby
Communities, STATELINE BLOG, THE PEW CHARITABLE TRUSTS (July 1, 2020),
https://www.pewtrusts.org/en/research-andanalysis/blogs/stateline/2020/07/01/how-covid-19-in-jails-and-prisons-threatensnearby-communities.

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has been marginalized yet again. Or rather, a crime victim’s rights are
perceived to be impactful only when a victim supports state control in the
criminal justice system. For example, as the Southern District of Mississippi
stated when denying a petition from a physically ill offender convicted of
conspiracy to defraud the United States for an amount of at least $1.5 million,
who was housed at a Louisiana correctional facility where the first inmate in
the nation died of COVID-19:
Longgrear did take responsibility for his actions and the
Court considered that in imposing his sentence. However,
Longgrear's charges were very serious and, as the recent
victim letters show, many of his victims continue to suffer
from his actions. Given that Longgrear has served less than
30 percent of the imposed sentence, reducing his sentence at
this juncture would not effectively “reflect the seriousness
of the offense ... promote respect for the law ... [or] provide
just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A).
It would also not “afford adequate deterrence to criminal
conduct” under subsection (a)(2)(B).292
When crime victims do exercise their right to submit a victim impact
statement to influence sentencing or early release, the act occurs at a critical
stage in the proceeding, deemed worthy of protection by the presence of
defense counsel.293 This is so because “[a]mong the purposes of the CVRA
is to make victims ‘full participants’ in the sentencing process and to ‘ensure
that the district court doesn't discount the impact of the crime on the
victims.’“294 Full participation by crime victims must be judicially screened
and reviewed to ensure that participation is not unduly prejudicial, such as
with the use of dramatic victim impact videos,295 or by inserting racial
prejudice or other forms of improper bigotry into the proceeding.296 Courts
must also anticipate that victims of crime may not all respond similarly,
where studies have shown that victims exhibiting less emotion when

292
U.S. v. Longgrear, No. 3:18-CR-77-CWR-FKB-1, 2020 WL 5416517, at *1
(S.D. Miss. Aug. 26, 2020).
293
U.S. v. Yamashiro, 788 F.3d 1231, 1235 (9th Cir. 2015).
294
Id.
295
State v. Hess, 23 A.3d 373 (N.J. 2011) (including evocative music).
296
See José Felipé Anderson, Will the Punishment Fit the Victims? The Case for
Pre-Trial Disclosure, and the Uncharted Future of Victim Impact Information in
Capital Jury Sentencing, 28 RUTGERS L.J. 367, 413 (1997).

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delivering testimony and victim impact statements may influence courts to
issue lower sentences, regardless of the victims’ intent.297 When all arbiters
are individuals exercising judgment, subject to bias and cultural influence far
removed from the community from which offenders and victims of crime
reside, it makes sense that the interests of offenders and victims are heard
clearly and consistently in court.
That many victims of crime may choose not to exercise their rights
at sentencing or upon early release motions during the pandemic is no
different from the pattern seen in pre-pandemic times,298 except that the
absence of public hearings and the procedural hurdles of early release
motions during COVID-19 served as a formidable barrier to the exercise of
crime victim rights. On an emotional level, victims of crime may not wish to
revisit the trauma by continued involvement.299 They face a history of mutual
distrust between the communities most in need of protection by the criminal
justice system and the criminal justice state actors who judge who deserves
protection.300 One way to move beyond this stalemate is a joining of forces.
297

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Mary R. Rose, et al., Appropriately Upset? Emotion Norms and Perceptions
of Crime Victims, 30 L. & HUMAN BEHAV. 203 (2006).
298
KENNEDY & SACCO, supra note 6, at 188 (reporting a 1994 study that found
that less than 18% of eligible victims or families attend sentencing, 15% submit
written victim impact statements, and only 9% provide oral victim impact
statements).
299
See Dena M. Gromet, Restoring the Victim: Emotional Reactions, Justice
Beliefs, and Support for Reparation and Punishment, CRIT. CRIM. 19 (2012)
(suggesting that victims may not be able to predict whether a merciful or retributive
position in a victim impact statement will provide them with greater satisfaction);
KENNEDY & SACCO, supra note 6, at 201, 204 (explaining that some research has
indicated that giving a victim impact statement does not tend to increase victim
satisfaction with the criminal justice process, while other research demonstrates that
victim-Offender reconciliation projects and mediation tend not to increase levels of
restitution paid).
300
See KENNEDY & SACCO, supra note 6, at 190; William S. Laufer and Robert
C. Hughes, Justice Undone, 58 AM. CRIM. L. REV. 155, 173 (2021) (listing sexual
violence crimes against women as the least reported type of crime, due in part to “the
absence of a formal criminal justice response”); Ernst H. Weyand & Lori
McPherson, Enhancing Law Enforcement Response to Missing Person Cases in
Tribal Communities, 69 DEPT. OF JUSTICE J. F. L. & PRAC. 137, 138 (2021) (asserting
that “a long history of distrust” with the United States government contributes to
delayed reporting of missing persons in tribal communities); Andrea J. Ritchie,
#Sayhername: Racial Profiling and Police Violence Against Black Women, 41
HARBINGER 187, 193 (Aug. 11, 2016) (“Young women of color, homeless and lowincome women, lesbian and trans women, and women who are (or are perceived to

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If the crime victim rights movement is willing to be more representative and
inclusive alongside other civil rights advocates, including those representing
criminal defendants, the justice system may be forced to reckon with the
injustice of mass incarceration and the marginalization of crime victim rights.
After all, each group arises from the communities most impacted by state
criminal justice policies.

CONCLUSION

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When government decision-making in criminal sentencing becomes
too removed from the community that was and will be impacted by the
defendant’s conduct, then the public trust will erode and the justice system
will lose its sense of justice.301 This has resulted in dispassionate mandatory
minimum sentences for nonviolent conduct and mass incarceration, and it
has resulted in victims of crime feeling marginalized and revictimized by the
justice system. Advocates for both crime victims and convicted offenders
need to work together to avoid the pitfalls of a remote government meting
out justice that inevitably treats vulnerable communities with disregard.
As debate over the criminal justice system’s priorities and
effectiveness rage on, adding in the voices of crime victims, members often
from the same communities as the convicted offenders would render great
benefit. False depictions of typical crime victims as irrational and bent on
vengeance and typical criminal offenders as dangerous and bent on terror
have impeded much needed reform of the justice system. The atrocity of mass
incarceration of America’s poorest young men and the rise of crime victims
in low-income communities could have been avoided if the calls of their
communities for better healthcare access, education, housing, and
employment opportunities had been heard and respected.

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be) involved in the drug or sex trades are particularly targeted for sexual violence by
police.”); Richard R.W. Brooks, Fear and Fairness in the City: Criminal
Enforcement and Perceptions of Fairness in Minority Communities, 73 S. CAL. L.
REV. 1219, 1224 (2000) (identifying data that suggests that low-income AfricanAmerican communities fear both crime victimization and police misconduct).
301
See Scott Burris et al., Federalism, Policy Learning, and Local Innovation in
Public Health: The Case of the Supervised Injection Facility, 53 ST. LOUIS U. L.J.
1089, 1092 (2009) (“Crafting interventions that effectively address the epidemic of
addiction in this country is a difficult challenge, but the inherent challenges are
greatly magnified by the functionally centralized and politically charged nature of
drug policy in the United States.”); REIMAN, supra note 7, at 170 (“Those who are in
a position to change the [criminal justice] policy are not seriously harmed by its
failure . . .”).

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Crime victims, suffering the aftermath of the criminal act, often do
have an interest in the goals of retribution and deterrence, but with meaning
and parity such that making amends and the possibility of closure are made
more possible. Retribution with proportionality, informed by the mental
health benefits of contrition, offers respect for the autonomy and agency of
offenders, even at a time when the majority of inmates have disabilities,
including neuroatypical conditions. If the state opts to diminish the goal of
retribution to the extent that it employs a paternalistic means of social control,
such as pharmaceutical incapacitation or extreme public health surveillance
of offenders in a decarceral state, this could discount an offender’s capacity
for accountability. Of course, this specter was not an option during the
COVID-19 pandemic, when the courts in compassionate release cases
focused not on rehabilitation programming and human potential, but on
retribution and restraint, despite the lethality of the contagion in close
quarters
Although crime victims often support retribution as a critical factor
in criminal justice, crime victims are not without compassion, nor are they
bereft of an understanding that the criminal justice system’s goals of
deterrence and rehabilitation are meant to be protective of society. The
majority of crime victims and communities impacted by crime also
personally understand the circumstances leading to crime better than the
court or justice system ever could. The community has a shared experience
the challenges of lack of health care and mental health care, unemployment,
and addiction, living in the same community or in the same household as the
person convicted. A spousal victim of domestic violence may fully fear and
understand the racial inequities that a call to 911 could bring to her abuser, a
man more vulnerable to being incarcerated and less likely to obtain releasd
during a pandemic. She herself may be at greater risk of contracting COVID19 due to lack of quality health care and housing, family obligations, and
working in the public sphere.302 If the court and prison systems have failed
to consider crime victim perspectives during this crisis due to expediency and
longstanding neglect, they have also disregarded the voice of the defendant’s
own community affected by the decision. It is time that advocates for both
crime victims and offenders combine efforts to represent a stronger and more
effective advocacy approach to the injustices of the criminal justice system,
302

See Lucy Erickson, The Disproportionate Impact of COVID-19 on Women
of Color, SOC’Y FOR WOMEN’S HEALTH RES. (Apr. 30, 2020), https://swhr.org/thedisproportionate-impact-of-covid-19-on-women-of-color/.

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as revealed by the response of the courts when the pandemic was raging
alongside pivotal and historic social justice movements in the United States.

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The Habeas Citebook Ineffective Counsel Side