Thomas Frampton
Associate Professor of Law
In the early days of the pandemic, there was a brief moment of hope for those working in the criminal justice reform world. Maybe, just maybe, the crisis could provide the sort of “shock” the system needed, impressing upon prosecutors, legislators, jailers, and parole boards the need to radically reduce the number of people we incarcerate. Now, over a year in, it’s clear that such optimism was misplaced.
Like a lot of UVA Law faculty members, I sometimes do legal work outside of teaching and scholarship. Working with clients keeps me sane, generates research ideas, and (sometimes, I hope) gives my students a richer understanding of the material we’re covering in the classroom. So, when the Virginia Law Weekly offered me 800 words to write about “anything you’re working on,” I figured I’d tell you about some of my cases during the pandemic. (Preview: it’s mostly disappointing.)
In the federal system, Congress has authorized judges to revisit previously imposed sentences if there are “extraordinary and compelling” reasons to do so. As you might imagine, a lot of prisoners have argued that the pandemic (and the impossibility of meaningful social distancing in prisons) qualifies as a pretty good reason. Some have been successful; far too many have been denied. I’ve consulted on a handful of these, but the one compassionate release motion that I filed was basically doomed from the outset—my client was convicted of a sex offense, and despite having some serious health issues, hardly anyone convicted of a sex offense has won compassionate release. Still, my client wanted to give it a shot. When we lost, he was the one consoling me: even though the judge denied relief, it was important to my client that the judge had read about what prison officials were, and were not, doing to keep him and his friends alive during the pandemic. (Incidentally, UVA Law has a clinic specializing in sentence reduction work with Professor Lisa Lorish! You should do it!)
I’ve also been working on some federal habeas cases. In September, I filed two habeas petitions for clients who had exhausted their appeals in state court. It’s hard for a petitioner to get relief through federal habeas—thanks AEDPA!—but the state court rulings were so egregiously wrong that I thought we had a chance. Seven months later. . . silence. When one of my clients fell ill in December, I filed a motion for expedited consideration, but the magistrate judge’s answer (I’m paraphrasing here) was: “A lot of people have COVID-19. We take it seriously and we’re doing the best we can. Have you seen all these compassionate release motions I have to rule on?” It’s hard to argue with that, especially if you’ve just filed a compassionate release motion. (Incidentally: For those of you considering clerkships, definitely consider clerking for a magistrate judge! It’s “less prestigious” or whatever, but they do the lion’s share of the work on important matters like habeas petitions!)
It hasn’t been all bad. A bright spot from the past few months was working on the resentencing of a client named Nelson Davis, who was released from prison in November after serving forty-two years. Technically, Mr. Davis’s release didn’t have anything to do with COVID-19; the original judge just screwed up back in 1978 when he imposed the sentence. But I think the current judge recognized it was important to rectify the situation quickly, before Mr. Davis (or his elderly mother) got sick. Since he’s come home, Mr. Davis has been doing great, despite the enormous challenges formerly incarcerated people face. To give one Kafkaesque example, prison officials gave Mr. Davis the wrong Social Security number when he was released. It took months to track down the other documents he needed (and, eventually, assistance from a congressional office) to get the correct number. Without a Social Security number, Mr. Davis couldn’t open a bank account and had trouble accessing other benefits he needed. (To be clear, I didn’t do any of this: 100% of the credit goes to the First 72+, a non-profit organization based in New Orleans that’s been working with Mr. Davis since his release.) By the way, every time we talk, he asks about the Section “E” students who watched his resentencing hearing over Zoom; he says to tell y’all “study hard.”
So, what’s the takeaway from all this? For me, it’s less that the pandemic has caused a crisis in our criminal legal system, and more that it’s laid bare problems that have been building for decades. We have precious few vehicles for giving convictions or sentences a “second look,” regardless of changed circumstances. Discretionary actors who do have such power are reluctant to grant relief, particularly outside of the “3 nons” context (nonserious, nonviolent, nonsexual offenses). And when people do come home, they often face daunting challenges. These are difficult issues, but they are problems we’ll have to face if we’re serious about ending mass incarceration.
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tframpton@law.virginia.edu