How Compassionate?: Political Appointments & District Court Judge Responses to Compassionate Release During COVID-19

• Author: Victoria Finkle
• Position: Georgetown University Law Center, J.D. 2022; Columbia University, M.A. 2010; Bates College, B.A. 2006
• Pages: 1495-1517

NOTES

How Compassionate?: Political Appointments &

District Court Judge Responses to Compassionate

Release During COVID-19

VICTORIA FINKLE*

The Trump Administration sought to transform the judiciary by

appointing numerous conservative judges to the bench, building on a

Republican project that is decades in the making. This Note examines

how judges are deciding compassionate release motions in the wake of

the COVID-19 pandemic, which has proven particularly deadly inside

the nation’s prisons. This Note explores how judges appointed by

Republicans and Democrats have ruled in more than 6,000 federal com-

passionate release cases in the first ten months of the pandemic, finding

that judges appointed by Democrats are granting compassionate release

at far higher rates than their Republican counterparts, with Trump

judges granting among the fewest requests. The First Step Act of 2018

gave incarcerated individuals the right to file a motion for early release

in court in light of “extraordinary and compelling”circumstances, and

requests for release have skyrocketed since the outbreak of the virus. The

unique conditions of the pandemic, high levels of virus transmission in

prisons, and the highly discretionary nature of the compassionate release

statute together offer a natural experiment for considering how judicial

ideology impacts people’s lives. The results of this analysis underscore

the importance of the fight over control of the judiciary going forward.

TABLE OF CONTENTS

INTRODUCTION..................................................... 1496

I. MODERN HISTORY OF JUDICIAL APPOINTMENTS . . . . . . . . . . . . . . . . . . . . . 1498

A. BATTLEFORTHEJUDICIARY................................ 1498

B. DIVERSITY AND DECISIONMAKING. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1502

II. COMPASSIONATE RELEASE AND COVID-19 . . . . . . . . . . . . . . . . . . . . 1503

A. HISTORY OF COMPASSIONATE RELEASE. . . . . . . . . . . . . . . . . . . . . . . . 1504

* Georgetown University Law Center, J.D. 2022; Columbia University, M.A. 2010; Bates College,

B.A. 2006. ©2022, Victoria Finkle.

1495

B. THEFIRSTSTEPACT....................................... 1505

C. PRISONS AS “DEATH TRAPS”AND THE URGENT NEED FOR

COMPASSIONATERELEASE.. ................................ 1506

III. ANALYSIS:JUDICIAL DECISIONMAKING IN A PANDEMIC............... 1509

A. MEASURING JUDICIAL IDEOLOGY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1509

B. METHODOLOGY................................... ....... 1511

C. KEYFINDINGS ........................................... 1513

IV. IMPACT OF THE JUDICIARY...................................... 1515

CONCLUSION...................................................... 1517

INTRODUCTION

In fall 2020, as the global pandemic raged, Senate Republicans rushed

through the confirmation of Justice Amy Coney Barrett to the Supreme

Court. The move incensed Democrats, coming just weeks ahead of a pivotal

presidential election in which early voting had already begun.

1

Although

President Trump would go on to lose the 2020 race, he, along with his Senate

allies, have now won a 6–3 majority on the High Court—making it the most

conservative Court in generations.

2

Over Trump’s tenure, Republican leaders

named a total of 234 Article III judges to the federal bench—only

Democratic President Jimmy Carter had appointed more judges by the fourth

year of his presidency.

3

None of this is happenstance. There is an oft-repeated phrase in Washington

that “personnel is policy,”

4

and that sentiment increasingly extends to the bench.

1. Grace Segers, Amy Coney Barrett Sworn in as Newest Supreme Cou rt Justice,CBSNEWS (Oct. 27,

2020, 11:18 AM), https://www.cbsnews.com/news/amy-coney-barrett-supreme-court-justice-sworn-in/ [h ttps://

perma.cc/PEY7-MM5R]. The move also came despite Republica ns’ refusal to take up Merrick Garland’s

nominationtotheSupremeCourtinspring2016becauseitwouldoccurduringanelectionyear—albeit

months before voting would begin. See Emma Green, How the Senate Stopped Pretending: Senators Grapple

with the Reality That They Have Destroyed Their Own House,A

TLANTIC (Oct. 15, 2020), https://www.

theatlantic.com/politics/archive/2020/10/amy -coney-barrett-senate-hearing-fail/616744/.

2. See Joan Biskupic, The Supreme Court Hasn’t Been This Conservative Since the 1930s, CNN

(Sept. 26, 2020, 6:33 PM), https://www.cnn.com/2020/09/26/politics/supreme-court-conservative/

index.html [https://perma.cc/K6F8-ENAW].

3. Kate Carsella, U.S. Senate Returns 37 Federal Judicial Nominations to President,B

ALLOTPEDIA

NEWS (Jan. 8, 2021, 4:35 PM), https://news.ballotpedia.org/2021/01/08/u-s-senate-returns-37-federal-

judicial-nominations-to-president/ [https://perma.cc/4X8D-X6PR]; Sara Reynolds, Trump Has Appointed

Second-Most Federal Judges Through November 1 of a President’s Fourth Year,B

ALLOTPEDIA NEWS

(Nov. 3, 2020, 11:25 AM), https://news.ballotpedia.org/2020/11/03/trump-has-appointed-second-most-

federal-judges-through-november-1-of-a-presidents-fourth-year/[https://perma.cc/W7QD-QNHG].

4. Jeff Hauser & David Segal, Personnel Is Policy: The Vital Im portance of Appointing People

Who Work—and Think—in the Public Interest,D

EMOCRACY (Feb.6,2020,3:43PM),https://

democracyjournal.org/magazine/personnel-is-policy/ [https://perma.cc/9ZVT-FBSG].

1496 THE GEORGETOWN LAW JOURNAL [Vol. 110:1495