EDNY Judge Departs Based on Defendant’s Presentence Confinement in Segregated Housing

As this blog has noted in the past, see here, several courts have departed below the applicable guideline range based on unusually severe conditions of presentence confinement.  Add to that set of precedents United States v. Brooks, 07-cr-187, 2008 WL 4693335 (E.D.N.Y. October 23, 2008), where Judge Sifton departed from a previously imposed guideline sentence of 37 months to 31 months, based on the defendant’s presentence confinement in the Special Housing Unit (SHU) of MDC for ten months.  He had been transferred there against his will because of an apparent threat to his safety. 

Departure for Presentence Conditions of Confinement

Giving a useful insight into the horror of the SHU, particularly for extended periods of time, Judge Sifton concluded that the restrictions placed on Brooks in the SHU “were severe relative to the conditions of confinement for the general population at the MDC.”  He found that for the ten months, Brooks “was confined to his cell for 23 hours a day, only permitted one hour per day of outdoor exercise in a cage, had no contact with other inmates, and had restricted commissary, family and religious visiting, and telephone privileges even though he had not committed a disciplinary infraction . . . While the extent of defendant’s physical deterioration may not have been extreme, the impact on his mental health has been severe. Defendant’s descriptions of the negative psychological consequences he has suffered comport with cases and studies addressing the harsh impact that prolonged solitary confinement may have on an inmate’s mental health.”  In addition, and shockingly (though hardly surprisingly), the BOP failed to undertake required periodic review of the basis for the defendant’s SHU detention, and failed to do any periodic assessment of the defendant’s psychological well-being. 

Ultimately, the court concluded that these conditions merited a six-month departure below the minimum guideline sentence. 

“Correction” of Sentence Under Rule 35

Also notable in this case is the procedural posture.  The issue of Brooks’ 10-month sojourn in the SHU was raised after the court had imposed a sentence of 37 months.  Fed.R.Crim.P. 35 permits a court to correct its sentence within seven days where there is “clear error,” but not simply a change of heart.  Here, the court accepted the defense argument that there was clear error, since presentence confinement conditions may warrant a downward departure and the Court was not made aware of defendant’s conditions of confinement at the time of sentencing.

Lawyers: Douglas Morris (Federal Defenders, Inc.) and AUSA Tanisha Simon