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SCLAWYERSWEEKLY.COM

VOLUME 19 NUMBER 31 ■

Part of the network JUNE 8, 2020 ■

In a first, COVID-19 concerns lead to compassionate release for inmate

■ BY CORREY E. STEPHENSON BridgeTower Media Newswires

A U.S. district judge in South Carolina has granted a federal inmate’s motion for a reduced sentence in light of the presence of COVID-19 at his North Carolina prison facility. The order is reportedly the first in the state, but it may not be the last, with other inmates following suit and complaints having been filed by the American Civil Liberties Union on behalf of prisoners in both South Carolina and North Carolina.

Joseph Leslie Griggs pleaded guilty in 2018 to illegal possession of firearms. In August 2019, he was sentenced to 25 months of incarceration and three years of supervised release, but in May he moved to have his sentence reduced pursuant to the federal compassionate release statute. Congress recently amended the statute as part of the First Step Act, to allow inmates to petition the federal courts for compassionate release once their administrative remedies with the Bureau of Prisons have been exhausted.

Griggs argued that his release was required due to his medical conditions—particularly chronic obstructive pulmonary disorder (COPD)— and the spread of COVID-19 at the federal prison in Butner, North Carolina, where he was incarcerated. The federal government countered that Griggs had failed to make a sufficient showing of extraordinary and compelling reasons under the U.S. Sentencing Guidelines’ Policy Statement.

But U.S. District Judge Donald C. Coggins Jr. ruled that the policy statement is limited in application to motions for reduction filed by the director of the BOP and hasn’t been updated since the First Step Act was passed. Coggins relied on the discretion vested in district courts to apply the factors spelled out in federal law in granting Griggs’s motion.

“The Court finds that there are viable sentencing alternatives to Defendant finishing his custodial sentence at FCI Butner Low,” Coggins wrote. “The Court is reluctant to modify Defendant’s sentence, as he has already been spared years of time in federal prison due to his medical conditions. His criminal conduct was egregious and showed a blatant disrespect of the law; however, this Court cannot sit idly by and watch while COVID-19 destroys elderly and seriously infirm inmates in BOP custody.”

A ‘perfect storm of preexisting conditions’

While the policy statement provides “helpful guidance,” it doesn’t constrain a district court’s independent assessment of whether “extraordinary and compelling reasons” warrant a sentencing reduction, Coggins said.

Griggs argued that his extensive medical conditions established extraordinary and compelling reasons for a sentence reduction. The court acknowledged that Griggs, 54, was classified as borderline clinically obese and suffered from a host of conditions including spinal stenosis, degenerative disc disease, a narrow spinal canal, conjoined nerves at the lumbar of his back, sciatica nerve pain, high cholesterol, high blood pressure, COPD, diabetes, anxiety and depression.

His medical conditions resulted in his placement at FCI Butner Low, where 76 active cases of COVID-19 had been confirmed among inmates as of May 21.

“The Court further acknowledges that Defendant has the proverbial perfect storm of preexisting conditions that would make him vulnerable to severe complications if infected with COVID-19,” Coggins wrote. “The Court is particularly concerned with Defendant’s COPD.”

District courts in other states have granted compassionate release motions under similar circumstances, Coggins noted, including Connecticut, New York, and Washington.

“The common thread among these district court orders is that a sentence reduction is justified only when a defendant is of relatively advanced age and suffers from serious preexisting conditions,” the ruling reads. “The Court emphasizes that it will scrupulously examine future requests for compassionate release and will only grant such requests in extraordinary and compelling cases.”

Coggins emphasized that potential exposure to COVID-19 alone is not a basis for a reduced sentence, nor does the existence of one or more preexisting conditions guarantee release. Instead, the court must analyze each defendant on a case-by-case basis.

COVID-19 cases continue to climb

Applying the statutory factors, Coggins concluded that Griggs’ request was a “very close question in light of the severity and scope” of his criminal conduct.

Griggs was “brazen” about his criminal conduct, Coggins wrote, leaving numerous stolen goods in plain view at his house and purchasing a firearm from a law enforcement officer with full knowledge that he was prohibited from owning a firearm due to a 10-year sentence in 1992 for property crimes.

While the nature and circumstances of Griggs’s offense and history, as well as the seriousness of the offense, weighed in favor of serving his full term of imprisonment, Coggins expressed concern about the severity of the COVID-19 problem at Butner.

“The number of positive cases among inmates and staff continues to climb at all of the BOP facilities at Butner,” he wrote. “This directly endangers Defendant’s health; however, it also stifles the opportunity for Defendant to receive prompt and adequate treatment for his medical conditions.”

Although Coggins found that the factors tipped in favor of reducing Griggs’s sentence to time served, he imposed several conditions, modifying the three years of supervised release to home incarceration for the first 18 months (with GPS location monitoring), a 14-day self-quarantine after release, and a ban on leaving his home other than for scheduled doctors’ appointments (including for work, church, or social events).

Coggins also sent a message to the BOP, reminding the agency that it is in the best position to evaluate inmates’ health conditions, risk of infection and complications, dangerousness as well as the need for avoiding sentencing disparities.

“It is critical that district courts give full consideration to all motions for compassionate release and be mindful of the lack of resources available to many federal inmates,” the ruling reads. “Law must be applied uniformly, and the BOP must be mindful of its obligation to apply the criteria in the Policy Statement fairly to all inmates, not just those high-profile inmates who can afford a bullpen of legal and medical experts.”

More cases to come?

Paul V. Cannarella of Hartsville and Rose Mary Parham of Florence represented Griggs. Michael R. Ray of from Hartsville, a non-attorney who assisted with Griggs’ defense, said that this was the first case in the District of South Carolina where an inmate received compassionate release solely based on COVID-19 as a reason

Reprinted with permission of South Carolina Lawyers Weekly © 2020 for release under the First Step Act, and Coggins granted the motion despite serious misgivings.

“Griggs is certainly not his favorite defendant,” Ray said. “Judge Coggins didn’t think he deserved to be out, didn’t want him out and didn’t think he served long enough, but he couldn’t turn a blind eye to the dangers facing [Griggs] if he stayed in prison.”

A spokesperson for the U.S. Attorney’s Office declined to comment on the order.

The order could be the first of many in the state, with a lawsuit recently filed by the ACLU on behalf of incarcerated individuals at risk of serious harm or death from COVID-19 due to underlying medical conditions. In addition, the suit seeks policy and procedural changes at Spartanburg County Detention Center such as allowing free, unlimited access to soap, disinfecting cleaners, and personal protective equipment, as well as requiring social distancing of six feet, with enforcement.

The issue has also reached the 4th U.S. Circuit Court of Appeals in the case of Albert Parish, who pleaded guilty to charges of fraud and began serving a 24-year prison sentence in 2008. Mount Pleasant attorney Cameron Jane Blazer is handling Parish’s appeal and will point to the Griggs decision for support.

“The BOP has demonstrated at [multiple facilities] that they do not possess the ability to protect the people who are there from this or other kinds of health issues arising out of institutionalized settings,” Blazer said.

The Associated Press

2020

Evan Meyer Slavitt

Senior Vice President, General Counsel, Corporate Secretary • AVX Corporation Greenville

Evan Meyer Slavitt believes lawyers must lead with an eye toward the values of the profession and the next generation of lawyers that will follow them.

“Being a leader is more than just an operational job. It requires a strong ethical and teaching component,” he says.

Slavitt grew up on Cape Cod in Massachusetts and enjoyed participating in the Harwich Junior Theatre, an organization that relied on participating children to act, build the sets, run lighting and sound, work on costumes, and perform other chores. In that environment, the adults expected the kids to be responsible and professional.

“I think this approach was essential to my later academic and professional success,” he says. “Further, I got a chance to fly on stage as John in Peter Pan and to play Templeton the Rat in Charlotte’s Web,” he says.

Slavitt earned Bachelor of Arts and Master of Arts degrees in economics from Yale University and a J.D. from Harvard Law School, where he was editor of the Harvard Law Review. He is senior vice president, general counsel, and corporate secretary at AVX Corporation, a global manufacturing facility in Greenville.

He is also a commercial, environmental, and appellate panel member for the American Arbitration Association.

He points to Bob Sylvia as his most important mentor who taught him lessons about how to be an effective trial lawyer.

“Bob was a partner in a law firm I joined when I went into private practice,” Slavitt says. “In addition to his technical coaching, he helped me understand how to find joy in the grind of litigation and how to manage the stress of private practice.”

If Slavitt had not become a lawyer, he likely would have pursued a career in economics because “economics is both intellectually challenging and has real-world implications,” he says.

His first job at a bakery, which required him to go to work at 4 a.m. every day, taught him to find joy in his work.

“The lead baker was always there when I arrived, and had been for some time,” Slavitt says. “He never complained because he loved what he did and showed me the important of finding work that you love, because that diminishes all the ancillary problems.”

While Slavitt cites managing work/ life balance as one of his biggest career challenges, he draws from advice his Latin teacher gave him to put things in perspective.

“He said ‘don’t sweat the small stuff,’” he recalls. “Just because something is immediate, doesn’t mean it is important. When there were chores to do at home, they sometimes didn’t get done because taking my kids to the park was more important.”

When Slavitt takes a vacation, he enjoys visiting islands in the Caribbean where his cell phone doesn’t work, and where he can simply sit on the beach with a fruity beverage.

Some people may not know that Slavitt likes to relax by doing needlepoint, and he has published a novel titled Death of a Prosecutor.

Reprinted with permission of North Carolina Lawyers Weekly © 2020

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