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

INMATE COVID CLASS ACTION SUITS GO 1-1

The class-action suit brought by FCI Waseca inmates challenging that institution’s inadequate response to COVID-19 sputtered to an end two weeks ago, as the U.S. District Court in Minneapolis ruled the women could not “assert a constitutional claim relating to the conditions of confinement” in a 28 USC § 2241 habeas petition.” A circuit split exists on this issue, but the 8th Circuit is on the wrong side of the split, at least insofar as the Waseca inmates are concerned.

The court ruled that if the FCI Waseca petitioner wanted to seek any remedy based on conditions of confinement, they had to bring a civil rights complaint, which would be subject to the Prison Litigation Reform Act. That Act, of course, requires that the inmates exhaust administrative remedies first, a fancy term meaning that they would have to work their way through the Bureau of Prisons byzantine remedy process, presenting their complaints to three different levels inside the BOP (and having those claims rejected, as is the BOP’s habit). The quickest way through the administrative remedy process takes about six months or so, which is a lifetime when inmates are dropping like flies from COVID.

The difference between the circuits is clear in the pending FCI Lompoc suit. Last week, the U.S. District Court in Los Angeles ordered FCC Lompoc to let Dr. Homer Venters, a court-appointed prison epidemiology expert, back into the institution within the next month for a second inspection, with a deadline of May 12 to file his report with the court. In so ruling, the court rejected the BOP’s argument that Venters – who has been unstintingly critical of the BOP’s response to the coronavirus epidemic – is not a neutral expert.

The Lompoc class action habeas corpus action is set for a hearing on summary judgment motions on June 15th.

The BOP’s COVID numbers continued to fall last week. As of Friday, the BOP reported 394 inmate and 1,265 staff COVID cases systemwide. It’s still everywhere, with active cases in 119 BOP facilities. With 72% of the inmate population tested, the positivity rate is still over 43%.

The BOP reported that as of the end of last week, 15.3% of inmates and 45.4% of staff have been vaccinated, while at the same time claiming in other stats that it has delivered over 99,000 doses into arms.

The numbers don’t add up, but paying too much attention to BOP COVID numbers simply confuses. For instance, last week, The Marshall Project, which has reported weekly on COVID in prisons for months, noted that “while new infections in prisons have dropped in recent months from their highest peaks in mid-December, this data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the Bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. As a result, we cannot accurately determine new infections in federal prisons.”

It’s pretty slick. Up until February 24, the BOP reported the total number of inmates who had tested positive for COVID-19, a running number that has only increased over time. But since February 24, the BOP has been changing the number daily by adding new cases while subtracting inmates who had tested positive in the past but who were no longer in custody. This accounting legerdemain has let the BOP understate the number of inmate cases by 1,115 through the end of March, which has changed the positivity rate by a point, from 43.77% (had those inmates remained on the rolls) to 42.75% without them.

Inmates become uninmates. How Orwellian…

And sometimes, the BOP doesn’t get to count COVID cases as active at all. Last week, an inmate at USP Florence died of COVID, but never tested positive for the disease in life. Only after his death did pathology determine he had died of undiagnosed COVID. No one knows for sure how many inmate COVID cases were simply never accounted for.

The BOP has not yet reported on how many inmates being offered the vaccine have not received it. However, a Kaiser Health News report last week, noting that 38% of Danbury inmates offered the vaccine rejected it, suggested that inmate reluctance might be because inmates believe that institutions have done a poor job of pandemic: “Inmates pointed to numerous COVID deaths they considered preventable, staffing shortages and guards who don’t wear masks. While corrections officials defended their response to COVID, [one inmate] said he’s apprehensive about how the department handles ‘most everything here recently,’ which colors how he thinks about the vaccines.”

Malcom v. Starr, Case No 20-2503, 2021 U.S. Dist. LEXIS 45387 (D. Minn. March 11, 2021)

Order, ECF 191 in Torres v Milusnic, Case No CV 20-4450 (C.D. Cal. March 22, 2020)

Mankato Free Press, ACLU lawsuit against Waseca prison dismissed (March 23, 2021)

Lompoc Record, Trial date approved in Lompoc prison COVID-19 class-action lawsuit; second inspection authorized (March 27, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (March 26, 2021)

BOP, Inmate Death at USP Florence (March 24, 2021)

Kaiser Health News, Inmate Distrust of Prison Healthcare Fuels Distrust of COVID Vaccines (March 25, 2021)

– Thomas L. Root