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

STILL LOOKING FOR THE PEAK?

Last week, I reported that the Bureau of Prisons’ numbers had dropped 25% from the week before, suggesting that maybe the latest BOP COVID spike had peaked, and recovery was at hand.

No such luck. As of last Monday, the system’s active cases had jumped 12% from a week earlier, to 7,690 active inmate cases and 1,616 sick staff, COVID in 127 BOP facilities and 188 dead inmates. The number of sick inmates fell yesterday to 6,949, still 11% higher than two weeks ago. As of last night, BOP has tested 64% of all inmates at least once, with a worrisome positivity rate of 40%.

Last week, I noted that despite official pronouncements that only BOP staff were getting COVID-19 vaccine, I had received inmate reports that some prisoners had been vaccinated at two Texas facilities and one in North Carolina. Last Tuesday, the BOP told Associated Press that the vaccine had been delivered to four facilities that had been among some of the hardest hit during the pandemic, including FCC Butner. AP quoted a BOP spokesman as saying that while it continued to plan to offer vaccines to full-time staff, “at this time, we can confirm high risk inmates in a few of the BOP facilities in different regions of the country have received the vaccine.” AP noted the BOP did not say how many inmates had been vaccinated, how the inmates were selected, or how many doses of the vaccine the agency had received.

The agency told the AP about half of the staff at each of the four facilities that received the vaccine had been inoculated. The balance was offered to inmates.

Forbes magazine reported last Monday that “word came from someone who is an inmate in an institution in the mid-Atlantic US that they are on a list to receive the vaccination at the first of the year. The vaccinations represent the first step in curbing the spread of COVID-19 in prisons. The roll-out of the vaccines to inmates will certainly cause a disruption in the number of compassionate release cases and the release of inmates under the CARES Act.” Forbes is a usually reliable publication, but the report – from a single unidentified inmate – is pretty thinly sourced.

As of last night, Fort Dix, Terre Haute, Safford, Pekin, Lexington, Schuykill and Atwater were all reporting more than 200 inmate COVID-19 cases. Another 14 facilities had more than 100 inmate cases.

Every inmate death is concerning, but three last week were especially troubling. An inmate at Talladega died of COVID-19 without ever being diagnosed with the disease or presenting symptoms. A Lompoc inmate had COVID in May and was declared “recovered,” but was hospitalized in August with COVID. He remained there until dying December 15. In a third case, a Memphis inmate with no prior medical conditions whatsoever fell ill on December 2, was hospitalized 10 days later, and died December 19.

Finally, a most unusual compassionate release: After a mix-up by the BOP, a Guam federal judge granted Jesse Cruz’s sentence reduction motion and ordered his immediate release.

Jesse had health issues including post-traumatic stress disorder, degenerative spinal disc disorder, sciatica, sleep apnea and other issues, according to US District Court Judge Frances Tydingco-Gatewood.

There was also an “extremely rare and unique situation” in Jesse’s case: the BOP miscalculated his release date, releasing him from FCI Sheridan on October 14, although his home confinement was not supposed to start until next February. The BOP didn’t give Jesse any medication when he was sent to Guam, even though the FCI Sheridan doctor had ordered he get his medication upon release.

Upon arriving on Guam, Jesse had to quarantine at a government facility. While Jesse was in quarantine, the BOP realized its mistake and had Cruz arrested when he left the quarantine facility.

During a hearing last Wednesday, the Judge learned Jesse hasn’t received any medication at all while incarcerated on Guam, even after Jesse and his wife presented numerous requests for medication and a CPAP machine to the detention facility and the U.S. Marshals. While Jesse’s health conditions would not normally justify compassionate release, the Judge ruled, “the disturbing failure of the BOP to properly calculate his release date from FCI Sheridan has resulted in a total lack of care for Cruz’s ailments.” Jesse “has been forced to serve several months of his sentence at a non-BOP facility while suffering from numerous maladies of the mind and body without respite,” the Judge held.

The Hill, Federal Bureau of Prisons reverses on withholding COVID-19 vaccine from inmates (December 22, 2020)

Greensboro, N.C. News & Record, Reversing course, feds say some N.C. inmates got virus vaccine (December 23, 2020)

Forbes, Federal Bureau of Prisons Starts Vaccination of Staff, Inmates Soon Thereafter (December 21, 2020)

Pacific Daily News, ‘Extremely rare and unique situation’: Sentence reduced for man mistakenly released (December 24, 2020)

– Thomas L. Root