Playing with COVID Numbers – Update for February 24, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP DECLARES COVID RECOVERIES AS MEDIA BLAST MANAGEMENT

The BOP declared another 2,800 inmates cured last week, declaring at week’s end that 1,717 prisoners and 1,415 staff still have the virus. As of last night, the number was down to 1,257 inmates and 1,397 staff. The BOP is reporting COVID at 125 facilities. The agency reported no new deaths.

deadcovid210914There isn’t a lot of reason to trust the BOP’s stats. For instance, 2,500 inmates “recovered” over Valentine’s Day weekend, but from the following Wednesday to Friday, only two more were cured. Over last weekend, another 450 were healed. But yesterday, only one was cured. As of last Tuesday, the agency had performed 129,251 COVID tests on inmates since 2020, but as of last night, only 128,895 had been done. The number of tests waiting to be processed was 94 for 10 days in a row ending a week ago Tuesday and has been 136 every day since. For the same period a year ago, the number was never the same from February 5 through February 24, fluctuating between a high of 1,131 and a low of 695.honeymoon220224

A reasonable person could conclude that the stats are being made up.

But does it matter? After all, COVID is finally over. Or maybe not, as COVID variant BA.2 vies with Vladimir Putin for headlines.

In other news, if the BOP ever enjoyed a media honeymoon on its COVID management, that time has passed. CNN last week savaged the BOP’s COVID response in a story based on inmate deaths at FPC Alderson:

The deaths of… three women imprisoned in West Virginia reflect a federal prison system plagued by chronic problems exacerbated by the pandemic, including understaffing, inadequate medical care, and few compassionate releases. The most recent statistics from the Federal Bureau of Prisons report 284 inmates and seven staff members have died nationwide because of covid since March 28, 2020. Medical and legal experts say those numbers are likely an undercount, but the federal prison system lacks independent oversight… The Alderson inmates and their families reported denial of medical care, a lack of covid testing, retaliation for speaking out about conditions, understaffing, and a prison overrun by covid. Absences by prison staff members sickened by the virus led to cold meals, dirty clothes, and a denial of items like sanitary napkins and clean water from the commissary… In an email, BOP spokesperson Benjamin O’Cone said the agency does not comment on what he called “anecdotal allegations.”

So the BOP manipulates the stats, and it ignores the anecdotes. Controlling the information and disparaging the information you can’t control – it’s the BOP’s mission statement.

healthcare220224Meanwhile, Oregon Public Broadcasting continues its coverage of a suit against the BOP brought by FCI Sheridan inmates, reporting that “dire conditions inside the federal prison in Sheridan, Oregon, have not improved over the course of the pandemic and numerous medical requests from inmates inside the facility continue to go unaddressed, according to Lisa Hay, Oregon’s federal public defender, in a recent filing. “What’s most dismaying to me is that we’re hearing the same kinds of complaints for two years and I feel somewhat helpless,” Hay told OPB in an interview a week ago. “People are dying, people are being harmed, people are being harmed psychologically and physically.”

“The system of care at the FCI Sheridan does not allow for adequate access to care,” Michael Puerini, M.D., a corrections medical care expert, stated in an inspection report filed last month. “Access to care is a fundamental aspect of the care system. Without access to care, adults in custody are essentially left without healthcare, much to their peril.”

Puerini wrote that “The Sheridan facility, at the time of our visit in September, was not following CDC guidelines regarding care of Covid patients in that patient who had tested positive for Covid were not being checked on a daily basis, as specified in the guidelines.”

CNN, Covid-19 rips through West Virginia women’s prison as federal agency takes heat (February 18, 2022)

Wall Street Journal, Fast-Spreading Covid-19 Omicron Type Revives Questions About Opening Up (February 23, 2022)

Oregon Public Broadcasting, Inmates at Oregon’s only federal prison report dire medical care (February 11, 2022)

Status Report, Stirling v. Salazar, Case No. 3:20-cv-00712 (February 4, 2022, ECF 98)

– Thomas L. Root

Emergency Continues, And So Does CARES Act Home Confinement – Update for February 22, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP CARES ACT AUTHORITY EXTENDED

caresbear210104The BOP’s CARES Act authority to place inmates in home confinement expires, according to the law, 30 days after the end of the national pandemic emergency. That emergency was originally declared by President Trump and extended by President Biden. Biden’s last extension was set to expire March 1, 2022, by operation of 50 USC § 1622(d).

Last Friday, Biden extended the national emergency for another year. He said, “The COVID-19 pandemic continues to cause significant risk to the public health and safety of the Nation. For this reason, the national emergency declared on March 13, 2020, and beginning March 1, 2020, must continue in effect beyond March 1, 2022.”

Section 12003(b)(2) of the CARES Act provides that

During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.

So the BOP authority continues as long as there’s a national emergency and the Attorney General “finds that emergency conditions will materially affect the functioning of the Bureau.” Attorney General William Barr made that finding on March 26, 2020, and again a week later.

home210218What this means is the BOP’s authority to place people in home confinement under the CARES Act will continue for another year unless Attorney General Merrick Garland would decide the BOP no longer needs to decrease population. Given that the BOP must still absorb another 6,085 federal prisoners from private prisons, that inmate totals are trending upward again, and that the BOP is still understaffed, it is unlikely that the AG will abandon the CARES Act any time soon.

The White House, Notice on the Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-⁠19) Pandemic (February 18, 2022)

– Thomas L. Root

Sample-ing a First Circuit Compassionate Release Win – Update for February 21, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LET’S GO, BRANDON…

jrhigh220221I’m no fan of the current political meme “Let’s go, Brandon.” I think we can be critical of the incumbent President (or the former President, for that matter) without sounding like a lot of 7th-grade boys sitting in the back of the school bus.

But today, I mean it literally. Vermont-based Federal post-conviction attorney Brandon Sample (who has no connection with this blog other than the fact of his dedication to criminal defense and his skill in winning against sometimes-substantial opposition) swung for the fence on a First Circuit compassionate release appeal. Last week, he hit a walk-off homer.

Brandon’s client, Juan Ruvalcaba, was convicted of a sprawling drug-distribution conspiracy over 15 years ago and sentenced to life in prison. “Life” was the sentence that the 21 U.S.C. § 846 count required at that time because of Juan’s prior drug convictions.

In 2020, Juan asked his court for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) because of COVID and his medical condition. He also argued that the fact that the mandatory minimum sentence for his drug conviction had been changed by the First Step Act – being dropped from life to 25 years – was an additional extraordinary and compelling reason for a sentence reduction.

henhouse180307A § 3582(c)(1)(A)(i) motion, for those of you who just came in, requires that a moving party show that there is one or more “extraordinary and compelling reason[s]” for a sentence reduction, and that, after considering the sentencing factors of 18 U.S.C. § 3553(a), a reduction is warranted. Time was only the Bureau of Prisons could bring such motions on behalf of inmates – sort of like letting the fox decide which chickens in the henhouse would be released to go “free-range” – but First Step changed that to let inmates file for compassionate release on their own.

The Sentencing Commission has defined what facts may constitute “extraordinary and compelling” reasons in a Policy Statement (USSG §1B1.13). However, because the Commission has been out of business for lack of a quorum since First Step changed the compassionate release statute in December 2018, the Policy Statement is still written as though only the BOP director is doing all of the filing.

Juan’s district court disagreed that the First Step change to his mandatory minimum could be an extraordinary and compelling reason for compassionate release. What’s more, the court held that it was obligated to follow the Sentencing Commission Policy Statement, which did not identify sentence length or a subsequent non-retroactive change in the sentencing statute as elements justifying a sentence reduction.

Brandon took Juan’s appeal to the 1st Circuit, and last week, that court joined a majority of other federal courts of appeal in holding that § 1B1.13 does not apply to prisoner-filed compassionate release motions. What’s more, the 1st Circuit ruled that a district court was free to consider that the prisoner is serving an over-long sentence that would not be mandatory had it been imposed after the First Step Act.

“The text of the current policy statement makes pellucid that it is ‘applicable’ only to motions for compassionate release commenced by the BOP,” the Circuit ruled. “To find the existing policy statement “applicable” to prisoner-initiated motions, we would need to excise the language referring to motions brought by the BOP. That would be major surgery and undertaking it would be well outside our proper interpretive province…. We may not ‘blue pencil’ unambiguous text to divorce it from its context.”

bluepencil220221The appeals court admitted that someday, the Sentencing Commission will be back in business and probably make § 1B1.13 relevant in a First Step world. Then, “district courts addressing such motions not only will be bound by the statutory criteria but also will be required to ensure that their determinations of extraordinary and compelling reasons are consistent with that guidance.” But until then, compassionate release will be interpreted “through the lens of the statutory criteria, subject to review on appeal.”

The 1st Circuit also held that an excessive sentence could be a reason for a sentence reduction, at least where a subsequent but non-retroactive change in the law had lowered a mandatory minimum. “Our view that a district court may consider the FSA’s prospective amendments to sentencing law as part of the ‘extraordinary and compelling’ calculus fits seamlessly with the history and purpose of the compassionate-release statute. In abolishing federal parole, Congress recognized the need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable.”

Such a safety valve should “encompass an individualized review of a defendant’s circumstances and permit a sentence reduction — in the district court’s sound discretion — based on any combination of factors (including unanticipated post-sentencing developments in the law),” the Circuit ruled. Thus, a district court, reviewing a prisoner-initiated motion for compassionate release in the absence of an applicable policy statement, may consider any “complex of circumstances raised by a defendant as forming an extraordinary and compelling reason warranting relief.”

Juan still has to sell his district court on the wisdom of granting any sentence reduction on remand, but – judging from his appellate win – he probably has the lawyer who can do it, if anyone can. Go, Brandon!

United States v. Ruvalcaba, Case No. 21-1064, 2022 U.S.App. LEXIS 4235 (1st Cir., February 15, 2022)

– Thomas L. Root

Senate Takes on BOP, and Other Short Rockets – Update for February 18, 2022

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rocket-312767

Some short takes to end the week:

Mike Carvajal’s Legacy: The Associated Press yesterday reported that a bipartisan group of senators, led by Jon Ossoff (D-Georgia) and Mike Braun (R-Indiana) has launched a working group “aimed at developing policies and proposals to strengthen oversight of the beleaguered federal prison system and improve communication between the Bureau of Prisons and Congress.”

prisoncorruption2310825Giving itself a well-deserved victory lap, the AP says the task force – which calls itself the Senate Bipartisan Prison Policy Working Group – formed “following reporting by The Associated Press that uncovered widespread corruption and abuse in federal prisons.”

The chairman of the Senate Judiciary Committee, Sen. Richard Durbin (D-Illinois) also will be part of the group. I’m hoping to see Senator Chuck Grassley (R-Iowa)

AP called the federal prison system “a hotbed of corruption and misconduct… [that] has been plagued by myriad crises in recent years, including widespread criminal activity among employees, systemic sexual abuse at a federal women’s prison in California, critically low staffing levels that have hampered responses to emergencies, the rapid spread of COVID-19, a failed response to the pandemic and dozens of escapes.”

Advocates from across the spectrum lauded the announcement. “The COVID-19 pandemic exposed serious weaknesses in our federal prison system, but also provided a blueprint for reform. Congress should take an active role in ensuring that BOP builds on the lessons of the pandemic to ensure the safety of incarcerated persons and the community, promote rehabilitation and reentry, and maximize alternatives to incarceration,” Kyle O’Dowd, Associate Executive Director for National Association of Criminal Defense Lawyers said. “The Prison Policy Working Group can open a bipartisan dialogue on these issues and lead the way in creating a more humane and rational prison system.”

David Safavian, General Counsel, American Conservative Union, said, “It is high time that Congress addresses issues facing both federal prisoners and correctional officers alike. The newly created Senate Prison Policy Working Group must help develop policies that strengthen public safety, advance human dignity, and ensure that the prison bureaucracy is held accountable for the results it delivers to the taxpayers.”

More BOP accountability… Ironically, that may be BOP Director Mike Carvajal’s legacy.

Associated Press, Senate launches group to examine embattled US prison system (February 17, 2022)

Senator Jon Ossoff, Sens. Ossoff, Braun Launch Bipartisan Working Group to Examine U.S. Prison Conditions, Promote Transparency (February 17, 2022)

And This is Kind of What the Senators Are Talking About: A BOP employee pleaded guilty Thursday to charges he sexually abused at least two inmates at FCI Dublin, the first conviction in a wave of arrests resulting from what prisoners at the women’s facility and employees called “the rape club.”

sexualassault211014The latest, a recycling technician, is one of four employees, including the warden and chaplain, who’ve been arrested for sexually abusing Dublin inmates. The Associated Press said last week that several other Dublin workers are under investigation.

The employee pled guilty to three counts of sexual abuse of a ward. Sentencing guidelines in similar cases have ranged from three months to two years, the AP said. The employee, on administrative leave since last April, remains “currently employed with the Bureau of Prisons,” the agency said last Friday. He had been allowed to transfer to another BOP facility while under investigation.

The AP published results of its investigation of FCI Dublin a week ago, saying it had found “a permissive and toxic culture at the Bay Area lockup, enabling years of sexual misconduct by predatory employees and cover-ups that have largely kept the abuse out of the public eye.” Inmates told AP they had been subjected to years of “rampant sexual abuse by correctional officers and even the warden, and were often threatened or punished when they tried to speak up.”

Federal News Network, Worker pleads guilty to abusing inmates at US women’s prison (February 11, 2022)

Associated Press, AP investigation: Women’s prison fostered culture of abuse (February 6, 2022)

Violent Offender Recidivism: The US Sentencing Commission last week released a study suggesting that violent federal offenders committed new crimes at double the rate of nonviolent offenders.

welcomeback181003Over an 8-year period, 64% of violent offenders released in 2010 were rearrested, compared to 38% of non-violent offenders. The median time to rearrest was 16 months for violent offenders and 22 months for non-violent offenders. What’s more, while recidivism dropped with age, in all categories violent offender committed new crime at a higher rate than nonviolent. For ages 60+, violent offenders’ recidivism rate was 25%, compared to 12% for nonviolent.

Violent offenses were defined based on the sentencing guidelines applied. By the definitions used, 9% of federal prisoners are serving time for violent crimes and 34% have prior violent-crime convictions.

US Sentencing Commission, Recidivism of Violent Federal Offenders Released in 2010 (February 10, 2022)

– Thomas L. Root

Just When You Thought It Was Safe To Stay At Home… – Update for February 17, 2022

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BUREAU OF PRISONS MUDDIES THE WATER ON CARES ACT PRISONERS REMAINING AT HOME

A BOP letter responding to a request from Rep. Sheila Jackson Lee (D-Texas) last week has renewed concern that CARES Act home confinees aren’t out of the woods yet.

muddywaters220217You may recall that the CARES Act, gave BOP the authority to send medically vulnerable prisoners to home confinement because of COVID. Since CARES passed in March 2020, the BOP has sent about 9,000 prisoners home, and of those – according to the BOP – only three have been returned to prison for committing new crimes.

However, despite the success of the program, the Department of Justice Office of Legal Counsel issued an opinion in the dying throes of the Trump Administration that when the pandemic ended, all of those folks – who had reconnected with families, gotten jobs, and generally reacclimated to society – would have to go back to prison. There was near-universal condemnation of the opinion, but last July, the newly-installed Biden people at DOJ offered as the Trumpian opinion was probably right.

flipflop170920Then, in December (with the President looking for some kind of criminal justice “win” to placate his progressives), CARES Act people rejoiced when the OLC reversed the January 2021 opinion. In fact, the jubilation was so great that none of the celebrants seemed to notice that the BOP had sent a memorandum to OLC a few days before saying that if return to prison was not mandatory, the agency planned to develop a plan to evaluate “which offenders should be returned to secure custody.

“Which offenders should be returned” is one of those compound statements, necessarily assuming that some of the CARES Act people should be returned. Some people are now taking note of just how ominous the statement is, and are asking what the BOP means by it.

“Sentence length is likely to be a significant factor,” the memo from BOP’s Office of General Counsel said, “as the more time that remains will provide the agency a more meaningful opportunity to provide programming and services to the offender in a secure facility. The nature of the sentence imposed, the interests of the prosecuting U.S. Attorneys’ Office, the potential impact on any victims or witnesses, and deterrence are other potential factors for the criteria BOP would develop. It is likely that inmates that have longer terms remaining would be returned to secure custody, while those with shorter terms left who are doing well in their current placement would be allowed to remain there, subject to the supervisory conditions described above.”

mumbo161103
Asked by two dozen other members of Congress to clarify, the BOP last week said it was preparing regulations that would be adopted “at the appropriate time.” Until then, the letter said, “we cannot speak to specifics.”

When he appeared before the House Subcommittee on Crime, Terrorism and Homeland Security two weeks ago, BOP Director Michael Carvajal said the BOP is “committed to returning people to society” and his agency “follows the laws that have been implemented and continue to do so.”

Right, Mike.

KXAN-TV, What will happen to inmates released under CARES Act? Prison officials vague (February 8, 2022)

BOP, Memo on CARES Act Return Authority (December 10, 2022)

BOP,  Letter to Rep. Bonnie Watson Coleman (February 7, 2022)

– Thomas L. Root

‘Statistics Don’t Lie’ on BOP’s CARES Act Failings – Update for February 15, 2022

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FORBES DRILLS INTO BOP’S CARES ACT RESPONSE TO COVID

Hanlon’s razor may have started as a joke, but humor reveals truth that straight exposition often obscures.

incompetent220215Ironically, given the 7th Circuit’s Barbee holding (see yesterday’s post), Forbes magazine last week published the deepest dive into BOP COVID data yet, and asked whether the agency’s “reaction to COVID-19 and the implementation of the First Step Act… can be attributed to the government wanting to keep prisoners locked down and maintain jobs or a deeper, underlying problem.”

A CDC study at FCI Texarkana last summer, Forbes notes, “demonstrated the potential for COVID-19 outbreaks in congregate settings including correctional and detention facilities, even among resident populations with high vaccination rates. It turns out that even those who are vaccinated are prone to being reinfected if they are in tight living quarters with those who become infected and are not vaccinated. Prisons present an environment where people are exposed to higher doses of infection that can overwhelm their dose of vaccine protection.”

Relying on data from Mark Allenbaugh (a former Sentencing Commission attorney) at SentencingStats.com, Forbes found that while there was an uptick in home confinement to about 5,400 prisoners in early summer 2020, “since then, that number has remained relatively flat, meaning that the elderly or sick inmates, who could be transferred to home confinement, have stayed in prison. In fact, the overall prison population, which bottomed in early 2021, has increased by more than 20,000 in the past year.”

What’s more, Forbes said, “the BOP’s COVID infection rates among inmates are also far worse than what the BOP is reporting and their own figures reflect that.” Allenbaugh said, “The BOP simply is not testing prisoners to determine if or when they are recovered. Rather, they are just assuming recovery after approximately 10 to 14 days. The rate of drop in infection among prisoners cannot be otherwise explained, particularly if you compare the trends between prisoners and staff. The problem, therefore, is that infectious prisoners are being returned to the general population spreading the infection even more.”

COVIDTesting220215Want proof? The BOP itself admits to only testing 13,537 times since last July. That’s about one out of every ten inmates once in 7-1/2  months.

Others echo this criticism. While data on the medical isolation rate, facility vaccination rate, and community transmission rate are all available on the prison bureau’s website, advocates, including Corene Kendrick (deputy director of the ACLU National Prison Project)and Joshua Manson, a researcher with the UCLA Law COVID Behind Bars data project, say most of the information on how many people have been infected with, or died of, the virus is inaccurate. “They’re not being fully transparent,” Manson told Capital News Service last week. “They’re sort of just asking the public to trust them when they’ve really given the public no reason to trust them. There have been enormous numbers of people who’ve been infected in the Bureau of Prisons’ custody…but we know that the actual number is considerably higher than that.”

Forbes also reported the numbers of prisoners that remain to be fully vaccinated plus those who need booster shots are much higher than the BOP has claimed. “While the BOP touts that its vaccination rates are near 90%, that includes those who have received only one shot, which we all know is not effective enough.” Allenbaugh also cited misrepresentations in BOP vax data (as I have noted in a prior newsletter), that institutions claim more vaccinated inmates than their total population.

Manson agreed, complaining the BOP website has a category for “fully vaccinated” inmates, but that number doesn’t include the number of people who have not yet gotten a booster. “Now, I don’t really think that you can call someone fully inoculated right now if they haven’t received the booster,” he said.

Part of the idea behind the CARES Act was to reduce prison populations. But Forbes reported that BOP facilities were at an average of 94.3% capacity in July 2020, 18 months later, they’re at an average of 98.8% capacity, with 93 institutions over their rated capacity. This is due in part to Biden’s closure of private prisons, resulting in “thousands of prisoners… now being crowded into BOP-run facilities.”

statistics220215Forbes said, “A new BOP director has not yet been appointed, but one cannot be appointed soon enough to change the poor management and deception of those currently in charge. It will take a monumental effort to change an organization that is failing the prisoners it houses and the employees who are becoming increasingly frustrated. The statistics don’t lie.”

The need for a longer-term solution is becoming more obvious, inasmuch as COVID will “continue to be a problem for incarcerated people, even as the world tries to move on,” according to Wanda Bertram of the Prison Policy Initiative. Public officials who have declared COVID endemic are “basically admitting that prisons are going to be more dangerous in terms of health risks than they’ve been before,” Bertram said.

Forbes, Statistics Show Federal Bureau Of Prisons Unable To Implement Key Policies During Crisis (February 7, 2022)

CDC, Outbreak of SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a Federal Prison — Texas, July–August 2021 (September 24, 2021)

Front Royal, Virginia, Examiner, Lawmakers, families, advocates challenge handling of COVID in federal prisons (February 11, 2022)

North Carolina Health News, Breaking point: What is the future of COVID and incarceration? (February 10, 2022)

– Thomas L. Root

7th Circuit Says ‘Follow Us, Not the Science’ in Compassionate Release Denial – Update for February 14, 2022

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7TH CIRCUIT RAISES THE BAR (AGAIN) ON COVID COMPASSIONATE RELEASES

Junk Science210707The 7th Circuit has already handed down the scientifically dubious holdings that a prisoner who has gotten the vaccine should not be allowed to take advantage of 18 USC § 3582(c)(1)(A)(i) compassionate release based on COVID dangers because “published data do not establish or imply an incremental risk for prisoners — either a risk of contracting the disease after vaccination or a risk of a severe outcome – if a vaccinated person does contract the disease” and that prisoners who have access to a vaccine cannot use the risk of COVID for compassionate release “unless they can demonstrate that they are medically unable to receive or benefit from the available vaccines.”

Last week, the Circuit went even further. Christopher Barbee appealed the denial of his compassionate release motion based on COVID risk factors and made a showing he remained at risk even after being vaxxed. Given the current number of breakthrough COVID cases in vaccinated people, it’s an argument that’s got some weight behind it.

But the 7th shot him down, holding that “although Barbee contends that he remains at risk as the COVID-19 situation continues to evolve, he has not presented any evidence establishing that he is more at risk for an adverse outcome in prison than he would be if released.”

So now prisoners in the 7th not only have to show prison is a dangerous place for COVID – and the stats say the COVID rate is four times the rate in prison than it is on the street, with one out of three BOP inmates having tested positive for COVID – but they have to show that home is much safer.

noplacelikehome200518Home is not any safer than prison. That is, if you live at home with 150 other people in one big room and you have workers coming in from the community three times a day. But for anyone else, home being safer than prison is an argument that’s self-evident.

It doesn’t matter in the 7th Circuit. Call it ‘Circuit 1, Science 0,’

United States v. Barbee, Case No 21-1356 (7th Cir., Feb. 11, 2022)

Fort Worth Star-Telegram, Man is 16th to die from COVID-19 at Fort Worth prison; cases spike at women’s facility (Dec. 30, 2021)

– Thomas L. Root

Some BOP Shorts – Update for February 11, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, we offer a few short takes from the Federal Bureau of Prisons

judge160425BOP Sued: The Public Defender Service for the District of Columbia last week sued the BOP, alleging “unequal and discriminatory treatment” of DC inmates sentenced in the DC Superior Court. In the case, filed as a class action, the plaintiffs contend the BOP scores the criminal histories of DC prisoners more harshly than the criminal histories of federal prisoners.

Since the 1997 federalization of DC’s criminal system, DC felony offenders have been placed in BOP custody to serve their sentences at federal prisons all over the country. As a result of the BOP’s criminal history scoring practices, the plaintiffs say, DC prisoners are held in higher security, have fewer programming opportunities, and are less likely to get home confinement or compassionate release.

Blades v. Garland, Case No 22-cv-00279 (D.D.C., filed February 3, 2022)

BOP Panel Recommends Sex Reassignment Surgery: The BOP Transgender Executive Council (TEC) last week recommended that a 47-year-transgender female receive sex reassignment surgery, according to documents filed a week ago in the U.S. District Court for the Southern District of Illinois.

“Assuming she does not engage in behavior that would prevent her from continued placement in a female facility and assuming further that no other reasons develop that would make gender confirmation surgery inappropriate,” the filing noted, “the TEC does expect plaintiff to be referred to a surgeon at the appropriate time.”

The referral will come after the inmate is transferred to a new facility in March.

The Hill, US Bureau of Prisons recommends inmate receive historic gender-affirming surgery (February 3, 2022)

Fight Lockdown of BOP Lifted: The BOP announced Monday that it was ending the nationwide lockdown of its facilities, gradually easing the restrictions at sites where officials determined there was no longer a threat.

prisonfight220211In a rare move, the BOP had locked down all of its 122 facilities as a result of a fight at USP Beaumont involving members of central American gang MS-13 and members of the Mexican organized crime-linked game Surenos. MS-13 members reportedly killed two Surenos and severely injured a third. The affiliation of the fourth prisoner, who was wounded, was not reported.

On Monday, the Bureau said it was returning “select facilities to the appropriate modified operational status” as part of a “tiered response” that would lift restrictions elsewhere as officials decided it was safe to do so. About 30 facilities came out of lockdown on Tuesday, with more being added throughout the week.

The week before, BOP employees received a notice that “effective January 31, 2022, the Federal Bureau of Prisons was placed on a National Lock-Down [sic]. The lock-down was initiated out of an abundance of caution due to current events which occurred at another facility. This order is to ensure the safety and security of all staff and inmates.”

The New York Times said, “Officials worried that the deadly fight would set off violence at other facilities, according to a person briefed on the bureau’s decision, who spoke on the condition of anonymity to discuss a continuing investigation.”

The Washington Post reported that lockdown was a “dramatic step [that] sparked some anger among inmates and their relatives, who felt it was overly broad.”

BOP Director Michael Carvajal told the House Subcommittee on Feb. 3, “We needed to find out what’s going on. I won’t get into specific operational things, but the groups involved, there’s approximately 2,500 in our custody spread throughout the agency. We need to make sure that we separate them and secure them. I’m hoping that the lockdown will be short-lived. We do not like keeping inmates again in their cells and we will do our best to get them out.”

The Times noted that “the violence was… in keeping with troubles that have long plagued the Bureau of Prisons. This year alone, the bureau has announced four inmate deaths and three escapes, as it continues to struggle with staff shortages, health issues stemming from Covid-19, violence, mismanagement and employee misconduct.”

Washington Post, Bureau of Prisons starts to lift nationwide lockdown (February 7, 2022)

Forbes, Federal Bureau Of Prisons On National Lockdown After Deadly Fights at USP Beaumont (February 2, 2022)

The New York Times, Fatal Gang Fight Spurs Nationwide Lockdown of Federal Prison System (January 31, 2022)

– Thomas L. Root

How Much of a ‘Mulligan’ Should a Resentenced Defendant Get – Update for February 10, 2022

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DO-OVER REQUIRED

mulligan190430Javier Fuentes-Rodriguez illegally reentered the United States after having been previously convicted of an aggravated felony. Such reentry violates 8 USC § 1326(b)(2). Javier got 30 months in prison. While his appeal was pending, the Supreme Court decided Borden v. United States, which held that any crime that could be committed recklessly did not fit the “crime of violence” definition, which requires purposeful action.

Before Borden, Javier’s prior felony – Texas family violence – had been considered “aggravated” under 18 USC § 16(b). But it is possible to commit Texas family-violence assault recklessly, and after Borden, the government and Javier agreed he was only guilty of illegal reentry after a non-aggravated assault (8 USC § 1326(b)(1)).

What’s the difference? There’s no difference in the Guidelines necessarily, but – as the 5th Circuit put it – “1326(b)(2) is associated with worse collateral consequences than 1326(b)(1).” What that means is that if Javier is convicted for unlawful reentry after committing an “aggravated felony,” he can never come back legally.

Javier and the government agreed that after Borden, his conviction under 1326(b)(2) had to be changed, but the question was how to change it. Javier wanted the case remanded, at which time the judge could presumably give him a much better sentence, departing downward if the judge chose to do so. The government simply wanted the sentence reformed by the 5th Circuit, changing the number of the statute of conviction without changing the sentence.

violence151213Javier’s position made some strategic sense for the defense. It’s possible (even if improbable) that the judge’s sentence was influenced because of her perception Javier had slapped around his wife (or whatever the facts were). A resentencing would let Javier’s lawyer argue something like, “See, it wasn’t so bad.” Even if that argument had not worked, the defense is always entitled to argue the defendant’s excellent prison record as a factor to mitigate a new sentence.

Would it have worked? We’ll see. Last week, the 5th Circuit remanded the case. “We acknowledge that in [a similar case], our court reformed the judgment directly rather than remanding for entry of an amended judgment by the district court, and we could do the same here, coming to the same result,” the 5th held. “However, due to the frequent use of district court judgments of conviction by judges, attorneys, and others, we find remanding this case for entry of an amended judgment will reduce the risk of future confusion.”

United States v. Fuentes-Rodriguez, Case No 15-40740, 2022 U.S. App. LEXIS 551 (5th Cir., Feb 3, 2022)

– Thomas L. Root

“It’s a Miracle!” People Say, as BOP Cures 2,000 Inmates in One Day – Update for February 8, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

MIRABILE DICTU

Miracle200513That is, “speaking of wonders…”

Medicine has not seen such an achievement in two millenia: between last Wednesday and Thursday, the BOP cured almost 1,968 inmates of COVID. COVID numbers, totaling 7,787 sick prisoners on January 28 had dropped to 5,581 as of last night.

Of course, if this were a real medical miracle, you’d expect the number of institutions with COVID to fall, and staff cases to decline as well. No such luck. Staff with COVID increase 152 to 2,057, and the number of institutions with outbreaks total 131. As of last weekend, Oakdale II has 397 cases, Yazoo City USP 277, FCC Lompoc has 223, and Oakdale I has 214. Twelve more locations have more than 100 sick, and 14 more have over 50. A full 86 prisons have 10 or more inmate COVID cases.

While the BOP does report daily infection tallies for each of its facilities, experts say those counts likely miss a large number of infections. Stat said the BOP does not report granular enough testing data to calculate so-called test positivity rates, a measure often used in public health to estimate what percentage of a population likely has Covid-19, given not every person in a community is typically tested at one time.

numbers180327What’s more, the BOP’s declaring inmates “recovered” from COVID has by now become a sad joke. Of the 53 BOP inmates who have died from COVID since March 1 of last year, the BOP had previously declared 53% to be “recovered.” Epidemiologist Homer Venters, M.D., has cautioned against the very questionable BOP practice:

People that tested positive, let’s say three, four weeks ago, may be considered recovered or not part of active cases…When you kind of wave a wand over people and say they’re recovered, my experience going into jails and prisons is many of them are not actually recovered. Many of them have new shortness of breath, chest pain, ringing in the ears, headaches. Other very serious symptoms.

The problem is systemic. “On his first day in office, President Biden promised to order the BOP to reevaluate its Covid-19 protocols and release additional data on the spread of the virus in prisons. But that specific order never came,”  Stat said last week. “And now, as Covid-19 is spiking in multiple federal prisons around the country, spurred by the Omicron variant and still-substandard infection control, advocates say that the BOP’s Covid-19 protocols are as broken as ever.”

Stat said that at Danbury, “it’s not just Omicron driving the surge. There were 234 new cases in a population of roughly 1,000 people during the month of January, according to data compiled by a team at the University of Iowa, but there’s no frequent testing and those in quarantine aren’t being monitored for worsening symptoms.”

inhumanecovidinmate220124And at Alderson, Stat quoted an attorney for inmates at FPC Alderson as saying the situation there is worse, although there’s even less information accessible. Available data suggest that Alderson experienced serious spikes in new Covid-19 cases during both late December and late January. The lawyer said there are likely more women with COVID in the facility than the available data show, because the facility is not testing widely.

The Fort Worth Star-Telegram was blunt: “Two years into the pandemic, federal prisons — including one in Fort Worth — still do not have COVID-19 under control. Executive staff at federal prisons are failing to follow the Bureau of Prisons’ COVID-19 response plan, according to a federal report. FMC Carswell, a women’s medical prison in Fort Worth, does not have a facility-specific plan, employee union representatives said… ‘It’s been pure chaos,” [one inmate,] who is incarcerated at the prison, said. “Carswell is still without a plan.”

Jennifer Howard, president of the union representing more than 400 FMC Carswell employees, said executive staff leaves union representatives out of the loop on COVID-19 discussions and safety plans. During the most recent meeting between union representatives and Carswell executive staff, Howard said, an executive staff member told reps, “I wish we could tell you we had a plan right now.”

Stat, Despite Biden’s big promises and a far better understanding of the virus, Covid-19 is still raging through the nation’s prisons (February 2, 2022)

Fort Worth Star-Telegram, Cases spike at Fort Worth prison; whistleblower complaint says top staff have no COVID plan (January 31, 2022)

KXAS-TV, Seagoville Federal Prison COVID-Cases Fall Drastically, Expert Warns Against New Data as Family Mourns Loss (August 14, 2020)

– Thomas L. Root