People For the American Way

Trump Judge Casts Deciding Vote to Send Black Man Back to Prison Despite COVID-Related Compassionate Release: Confirmed Judges, Confirmed Fears

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Trump Judge Casts Deciding Vote to Send Black Man Back to Prison Despite COVID-Related Compassionate Release:  Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judge John Nalbandian cast the deciding vote to grant a stay of a COVID-related compassionate release order and send a black man back to prison after 22 years as the appeal continues. The February 2021 decision is US v Bass.

After serving in prison for 22 years for a conviction on serious drug and murder charges, John Bass, who is African=American, filed a motion for compassionate release because of serious COVID-19 dangers in prison and his repentance for and rehabilitation from the crimes he committed.  Judge Arthur Tarnow, who had presided over Bass’ trial and sentenced him to two concurrent life sentences, issued a 26-page opinion and order  that granted the motion.

Judge Tarnow carefully analyzed the factors specified in the federal compassionate release law as modified at the end of 2018. He found that “extraordinary and compelling reasons” warranted such relief because of the “risk posed to Bass from his medical conditions,” including hypertension, pre-diabetes, and obesity, and “the spread of COVID-19” at the prison where he has been confined, which has the “second highest number” of prisoners with COVID in the state and approximately “46% of its population is or has been infected” already. “Continuing to incarcerate Bass under such conditions while the virus runs rampant,” Tarnow determined, “is a potentially deadly decision with no end in sight.”

Tarnow went on to acknowledge the “horrific” nature of the crimes Bass committed,  and explained that under the compassionate release law, his duty as a judge was to evaluate Bass “not as he was on the day of sentencing but as he is today” after more than two decades in prison. During that time, Tarnow continued, Bass has obtained his GED and has participated for over 1000 hours in a “long list of classes and programs,” such as drug education, victim impact, and re-entry. He was highly recommended by prison officials to participate in a program to become a “certified life coach,” and has already provided significant help to younger family members and others. The court has received “letter after letter” from people outside of prison, the judge recounted, “detailing Bass’ remorse” and growth, in accord with Bass’s own statements of “deep remorse and shame”. Prison officials offered similar “glowing” reports, Tarnow noted, and Bass “regularly attends religious services and classes.” He works as a custodian, and has cooperated with law enforcement in helping them pursue other drug offenders, which has placed him “in harm’s way” in prison. He plans to “mentor youth in his family and community” outside of prison, has already received several job offers, and Tarnow noted that Bass has a “short disciplinary history” in prison and the Bureau of Prisons has concluded that he has a “LOW recidivism risk.”

Tarnow concluded that Bass is a “BOP success story” who has “turned the pain and darkness of his former life on the streets” into a “light for those still lost in its grips,” and decided to give him “a well-earned second chance.” The government immediately appealed, and sought a stay while the appeal is pending.

In a 2-1 decision in which Trump judge Nalbandian was the deciding vote, a Sixth Circuit panel granted the motion and sent Bass back to prison, at least until the appeal is complete. Although giving lip-service to the principle that the “deferential abuse-of-discretion standard” applies to the case, they proceeded to second-guess Tarnow’s decision. The panel complained that Tarnow “did not set out the nature and circumstances of Bass’s offense in detail,” even though he had been the presiding judge and found the crime “horrific.” They protested that even after being in prison for 22 years, Bass has served only “just over half of his anticipated sentence.” The majority also claimed that Bass had not shown that his “return to detention will cause him substantial harm,” since he had been in prison as Tarnow considered compassionate release, and asserted that further imprisonment “will not significantly render untoward harm while we consider the merits” of the appeal.

Judge Jane Stranch strongly dissented. She pointed out that there are now many more cases concerning compassionate release due to the “significant presence of COVID-19 in our prisons.” Under applicable precedent, she went on, the “thorough order” and  decision by the district court “falls well within the broad discretion” that the court should “afford to district courts in deciding  these motions.” It was flatly “incorrect” that Judge Tarnow’s “level of description” of Bass’ crime meant that he “did not consider the crime’s seriousness,” particularly since his order “repeatedly, explicitly indicates its consideration” of that factor. The majority’s decision, Stranch wrote, “unnecessarily infringes on the discretion” that appellate rulings have given to district courts to make compassionate release determinations, particularly when “juxtaposed with the expansive discretion” given to lower court “denials of compassionate release.”

Stranch concluded by expressing concern that the majority’s ruling “risks enshrining a double standard unduly favoring the Government’s opposition” to such release, particularly in light of Congress’ clear intent to “expand compassionate release” and the “potentially life-or-death context of the COVID-19 pandemic.” What will happen in John Bass’s pending appeal remains unclear. But it is clear that Trump judge Nalbandian’s deciding vote will cause serious risk to Bass at least in the short run, and threatens to make it harder for others to obtain compassionate release in the current “life-or-death context” of COVID-19.


Confirmed Judges Confirmed Fears, John Nalbandian, Sixth Circuit Court of Appeals