DOJ-OGR-00010479.jpg

Case 1:20-cr-00330-PAE Document663_ Filed 06/15/22 Page 33 of 77 Acknowledging that COVID hardship is a basis for downward variance, courts in this District have given credit for each day of pretrial detention served during the pandemic See, e.g., United States v. Gonzalez, 18 Cr. 669 (JPO) (Apr. 16, 2021), Dkt. 250 at 17 (time served during the pandemic is “basically like solitary confinement,” “harsher than a usual period,” “more 99 66 punitive,” “essentially the equivalent of either time and a half or two times what would ordinarily be served” (emphasis added); United States. Brissett, 19 Cr. 153 (RMW) (Sept. 22, 2021, Dkt. 56 at 26 (giving 31 months extra time-served credit for every day “spent in deplorably brutal conditions” during COVID.) Having served the entirety of her detention during the pandemic, Ms. Maxwell deserves no less consideration. And because her extraordinary conditions of pretrial detention were tantamount to pre-sentence punishment, she is entitled to an additional significant downward variance from the applicable guidelines. Extraordinary Conditions of Solitary Confinement Justifies a Hard-Time Credit To determine the nature and extent to which Ms. Maxwell has been penalized, it is important to factor in the impact of the hardship on Ms. Maxwell compared to general population inmates. Based on the underpinnings of punishment and the principle of proportionality, Ms. Maxwell should be given hard-time credit for the time she served in restricted and isolated detention. Ms. Maxwell was subjected to punitive conditions and abuse in violation of clearly established law protecting such individuals from punishment, to be free from “needlessly harsh conditions of confinement.” /gbal v. Hasty, 490 F.3d 143, 169 (2d Cir. 2007), rev’d on other grounds, Ashcroft v. Iqbal, 556 U.S. 662 (2009). She posed no danger to the security of the institution, the staff, or other inmates, and engaged in no misconduct requiring her placement in segregation. Confining her to unusually restrictive isolation for the better part of two years permits an inference of punitive intent in the absence of any penological reason. The claim that she was 32 DOJ-OGR-00010479