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Judiciary Committee Exercised Over Home Confinees Returning to Prison – Update for April 16, 2021

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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.

LOBBYING EFFORT ON CARES ACT HOME CONFINEMENT MAY BE BEARING FRUIT

FAMM started to turn up the heat last week on an effort to get President Joe Biden and Attorney General Merrick Garland to rescind the January 15 memo from DOJ’s Office of Legal Counsel that would lead to the return of people now on home confinement under CARES Act placement to federal prison when the pandemic ends.

The memo was a prime topic yesterday when Bureau of Prisons Director Michael Carvajal testified before the Senate Judiciary Committee. Judging from the questions coming from both Republicans and Democrats on the Senate Judiciary Committee (with the exception of the execrable Sen. Tom Cotton [R-Klingon Empire] and Sen. Josh Hawley [R-Mongol Horde]), the FAMM campaign is bearing fruit.

hawley2100416

The OLC memo, issued in the final days of the Trump administration, would force the BOP to send several thousand people currently on home confinement. Carvajal said it would probably affect somewhere around 2,500 people now on home confinement with a year or more to go on their sentences. A few more than 300 have lengthy sentences left. Of the group, he said 21 have been returned to BOP custody, but only two of those were because of new criminal conduct.

The memo is incorrect as a matter of law and would impose devastating human costs, as well as a negative impact on public safety. Sen. Richard Durbin (D-Illinois), chair of the Committee, said yesterday he was writing to Garland to urge him to reconsider his predecessor’s opinion.

FAMM and 28 other advocacy groups sent a letter to Biden and Garland on April 1st. FAMM has launched the “Keep Them Home” campaign, and is both collecting signatures on a petition and calling on people to call Garland’s office in order to get the Administration to rescind the memo.

home190109FAMM president Kevin Ring told The Appeal that those who were released did not expect to have to return to prison. “These folks came home and were told, ‘You’re not going to have to come back,’” Ring said. “They reunited with their families. Some of them have kids who they said, ‘I’m home.’ They said, ‘Do you have to go back, Dad?’ ‘No.’ So this changes everything.”

Earlier, the BOP declined to answer reporters’ questions about the memo, but Joe Rojas, Southeast Regional Vice President of the union representing BOP employees, said sending everyone back to prison would be logistically impossible. “We have no staff,” he told The Sentinel, “We are already in chaos as it is.”

But yesterday, Carvajal said that the BOP has ample space to absorb the home confinees if they were to return. Nevertheless, he expressed no opinion on whether they should come back. The Director noted that the issue is not immediate, because the pandemic emergency has been extended by the President.

home210218My take on Carvajal’s position (for what it’s worth) is that his bias leans toward leaving people who have complied with their home confinement terms at home. He said repeatedly that the BOP’s mission was to successfully return people to the committee, and as long as home confinees are successful at home, there was nothing wrong with leaving them there.

However, Carvajal said that the BOP’s primary interest was to follow the law, and he urged lawmakers to amend the home confinement statute to make clear what should be done.

The Appeal, Unless The Biden Administration Acts, Thousands Could Go Back To Federal Prison (April 5, 2021)

FAMM Petition

KSU The Sentinel, Inmates under house arrest in the event of a pandemic could return to prisons in the United States (April 11, 2021)

Senate Judiciary Committee, Oversight Hearing on Bureau of Prisons (April 15, 2021)

– Thomas L. Root

Who Ya Gonna Believe, Science or the US Attorney? – Update for April 15, 2021

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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.

COVID IS LOVELIER, THE SECOND TIME AROUND…

ipsedix210415The value of government blandishments has dropped substantially over the past few days, as prior assurances about the safety of the Johnson & Johnson vaccine morphed into a “pause” because some recipients were in the ICU with clotting blood. As one inmate, who watched a third of his unit get the J&J shot the day before the “pause,” told me, “I think this is the nail in the coffin for J&J, not many inmates will take it anymore here from the sound of it.”

I’m not judging J&J, which may or may not have triggered a severe reaction in two out of a million users. But the government’s willingness to speak with authority when it has no basis for the assertion is not an uncommon phenomenon. Take the U.S. Attorney in any of the 94-odd federal districts making up this great nation.

More than one federal prisoner who has already had COVID (and there are a lot of them) has moved for 18 USC § 3582(c)(1)(A)(i) compassionate release. In many cases, prisoners have filed for compassionate release and then gotten COVID while waiting for the judge to act.  For inmates whose compassionate release motions were not decided at the time they got sick, the government likes to argue that they are immune, or at least that if they get it again, their case would be no worse than the first time around.

ipsed210415Last week, a district court rejected the government’s evidence-free ipse dixit (a gift to posterity from Marcus Tullius Cicero which means, essentially, that “it’s so because I said it’s so”), and accepted an inmate’s expert opinion to the contrary.

Justin Groat filed for compassionate release. He had already had COVID-19, but he had a laundry list of comorbidities that could have made things worse, and would not help matters if he caught it again. The government argued he was immune, and he would be fine (without, of course, citing any basis for its claim, a classic ipse dixit.

But Justin responded that a number of district court decisions had held  a previous positive Covid-19 diagnosis does not block grant of a compassionate release motion  “if compelling and extraordinary reasons justify a reduced sentence.” He also a medical school professor’s opinion that “immunity seems to last approximately 90 days and that ‘reinfection with Covid-19 has been documented, with some individuals presenting with more severe disease than the first infection.”

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The district court granted compassionate release, finding Justin’s evidence “persuasive” that COVID immunity only lasted about 90 days. “The Government has only offered the opinion of its counsel that Mr. Groat’s prior infection suggested he was safe as “amount[ing] to nothing more than impermissible ipse dixit… Because Mr. Groat is currently unvaccinated, exposed to many other inmates who are similarly unvaccinated, being guarded by substantial percentage of staff who (according to defense counsel) have also not been vaccinated, and because it is likely that he is capable of being reinfected, the court finds that Mr. Groat is at risk of being infected with Covid-19.”

Incidentally, over half of the BOP’s workforce has refused vaccination.

United States v. Groat, Case No 2:17cr104, 2021 U.S. Dist. LEXIS 65194 (D.Utah Apr 2, 2021)

– Thomas L. Root

Groundswell for Judicial Discretion in Compassionate Release Cases – Update for April 13, 2021

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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.

TWO MORE CIRCUITS REJECT GUIDELINES § 1B1.13 AS GOVERNING COMPASSIONATE RELEASE

stampede210413Since United States v. Brooker last fall, four other circuits had held that USSG § 1B1.13, the Guidelines policy statement that severely restricts qualification for 18 USC § 3582(c)(1)(A)(i) compassionate release, did not apply to motions brought by inmates.

Last week, the 5th and 9th Circuits joined the stampede, bringing the total to seven.

The Guideline, among other terms, requires movants to show that they will not be a danger to the community or others (applying the standards of 18 USC § 3142(g), the statute governing pretrial release), and limits compassionate release for inmate medical conditions, sick partners, unparented kids. Other reasons may be used as well, but only those approved by the BOP.

It is hard to overstate the importance of the tsunami of holdings invalidating the use of §1B1.13 in compassionate release cases. District courts have cited § 1B1.13 in over 7,200 decisions in the last year. The government continues to argue in pleading that courts should reject compassionate release motions as inconsistent with  § 1B1.13, even where the circuit has held otherwise. Just last week, I read a compassionate release response in which the government reluctantly acknowledged – almost as an afterthought – that the Circuit had held that nothing “in the now-outdated version of Guideline § 1B1.13 limits the court’s discretion,” but only after a full page of arguing the court should apply it anyway.

Francesk Shkambi’s compassionate release was thrown out by a district court for lack of jurisdiction, because Frank didn’t fit into any of the four grounds listed in § 1B1.13. But last week, the 5th Circuit reversed, finding § 1B1.13 inapplicable:

§ 1B1.13 says it only applies to ‘motion[s] of the Director of the Bureau of Prisons’. That makes sense because in 2006 (when the Sentencing Commission issued the policy statement) and in November of 2018 (when the Commission last amended it), the BOP had exclusive authority to move for a sentence reduction. When Congress enacted the First Step Act in December of 2018, it gave prisoners authority to file their own motions for compassionate release; but it did not strip the BOP of authority to continue filing such motions on behalf of its inmates. So the policy statement continues to govern where it says it governs — on the ‘motion of the Director of the Bureau of Prisons.’ But it does not govern here — on the newly authorized motion of a prisoner… Just as the district court cannot rely on a money-laundering guideline in a murder case, it cannot rely on the BOP-specific policy statement when considering a non-BOP § 3582 motion.

compassion160208Meanwhile, in California, a district court denied Pat Aruda’s compassionate release motion because it was inconsistent with § 1B1.13. Last week, the 9th Circuit reversed.

We agree with the persuasive decisions of our sister circuits and also hold that the current version of USSG § 1B1.13 is not an ‘applicable policy statement’ for 18 USC § 3582(c)(1)(A) motions filed by a defendant,” the Circuit wrote. “In other words, the Sentencing Commission has not yet issued a policy statement “applicable” to § 3582(c)(1)(A) motions filed by a defendant. The Sentencing Commission’s statements in USSG § 1B1.13 may inform a district court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.

So far, the 2nd, 4th, 5th, 6th, 7th, 9th and 10th have ruled that § 1B1.13 does not control inmate-filed compassionate release motions. No circuit has held otherwise.

United States v. Shkambi, Case No 20-40543, 2021 US App. LEXIS 10053 (5th Cir. Apr 7, 2021)

United States v. Aruda, Case No 20-10245, 2021 US App. LEXIS 10119 (9th Cir. Apr 8, 2021)

– Thomas L. Root

Thursday is Hamburger Day – Update for April 12, 2021

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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 DIRECTOR TO BE GRILLED ABOUT COVID, FIRST STEP

hamburger160826Almost every inmate in the Bureau of Prisons system looks forward to Wednesdays, when the nationwide lunch menu serves sandwiches that pass for hamburgers, with a side of fries. But this week, BOP Director Michael Carvajal’s hamburger day may come one day later.

Carvajal will testify this Thursday before the full Senate Judiciary Committee in the first comprehensive BOP oversight hearing since 2019. Politico said last week that principal issues will include how BOP has handled the coronavirus pandemic and how it has implemented the First Step Act. “On both counts,” Politico reported, “the Bureau has drawn bipartisan criticism.”

A BOP statement last week said Director Carvajal “is looking forward to the opportunity to provide the Senate Judiciary Committee with information at the upcoming Oversight of the Federal Bureau of Prisons hearing on the morning of April 15, 2021.” Yeah, I have no doubt of that… like a dental patient eagerly anticipates a root canal without Novocain.

oddcouple210219At the hearing, Carvajal will face Sen. Richard Durbin (D-Illinois) — now the committee chair — former chairman Charles Grassley (R-Iowa), Patrick Leahy (D-Vermont), John Cornyn (R-Texas), Cory Booker (D-New Jersey and Mike Lee (R-Utah), among others. Durbin, Grassley, Leahy, and Lee have been vigorous in their demands that the BOP should do more to move the most vulnerable inmates out of prison because of COVID-19. And Booker is a co-sponsor of the Federal Correctional Facilities COVID-19 Response Act, introduced two months ago to address inadequacies in the BOP’s management of the pandemic. “The Department of Justice’ response to the COVID-19 pandemic has been unacceptable and has placed nearly 2.3 million incarcerated people in danger,” Booker said at the time.

What will the Committee ask Carvajal? Well, it could start with the Director’s past statements about the BOP’s “transparency” on COVID. Carvajal told a House subcommittee in December that “the Bureau has published one of the most detailed and thorough COVID pandemic resource areas in the federal government on our public website at www.bop.gov/coronavirus.”

timebackward210412Is that a fact, Mr. Director? Sure, since April 2020, the BOP has provided a running total of the number of inmates who tested positive for COVID. But two months ago, the total mysteriously started going down. I initially thought that Steven Hawking had been right that the universe may someday contract: maybe it has begun, and time is moving backward. But that was not the case. Instead, the BOP had adopted the view is that if an inmate contracted COVID but thereafter was released, it should be treated as though he or she had never been there. Because the inmate had never been there, then his or her COVID case could not count against the BOP’s total.

Accounting brilliance, Mr. Director! But don’t be surprised if some on the Committee might be so forward-thinking, number-wise, and wonder whether – with enough time – the Bureau’s total number of historic COVID cases might regress to zero.

What’s more, the Bureau’s loose use of the definition of “recovered” might raise Committee doubts. Last week, the BOP announced that two more “recovered” inmates, both at the Springfield, Missouri, Medical Center for Federal Inmates, had died. One, Leonard Williams, contracted COVID in late February, but “on Monday, March 22, 2021,” the BOP said, “in accordance with Centers for Disease Control and Prevention (CDC) guidelines, Mr. Williams was converted to a status of recovered following the completion of medical isolation and presenting with no symptoms. On Saturday, April 3, 2021, Mr. Williams became unresponsive.” He was pretty unresponsive, all right. The EMT crew pronounced him dead before he got to the hospital.

Another inmate, Jaime Benavides, caught COVID in December but was declared “recovered” 10 days later. But “on Thursday, March 25, 2021, Mr. Benavides’ condition worsened and he was transported to a local hospital for further treatment and evaluation.” Committee members may how a “recovered” person’s condition can worsen. After all, he had “recovered!” Mr. Benavides died of his recovery on April 4.

numbers180327The Marshall Project has been reporting a tally of COVID in federal and state prisons every Friday for over a year. Last Friday, it informed readers that its

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. Similarly, in early April, the Bureau of Prisons lowered the number of deaths it was reporting among people held in private prisons. As a result, we cannot accurately determine new infections or deaths in federal prisons.

The New York Times noted last week in a report on COVID in prisons that its data were not complete because “the federal prison system and ICE did not regularly provide facility-level data for inmate infections or disclose the number of tests conducted on inmates or correctional staff members.”

Maybe the Committee will ask Carvajal about the BOP’s abysmal staff vaccination rate. Last week, the Federal News Network reported on a number of government agencies whose frontline workers were having trouble accessing vaccines. But, FNN said, “the Bureau of Prisons in the Justice Department is having the opposite problem. BOP says it offered the COVID-19 vaccine to all of its employees, but only 49% took the agency up on its offer. BOP says it can’t require employees to take the vaccine since the Food and Drug Administration hasn’t formally approved them yet.”

As of last Friday, the BOP reported only a very questionable 208 inmate COVID cases, but 1,250 sick staff, a number unchanged in the last two weeks. Committee members might justifiably wonder why the inmate number – which the BOP controls – has dropped so dramatically, while the staff number – which the BOP cannot control – remains so high.

Perhaps the Committee will want to know why the BOP touts that it had put 125,000 shots into arms as of last Friday, yet it reports only 23% of the inmate population has been vaccinated.

plagueB200406But it may just be that the Committee will be interested in some stats The New York Times ran in last week’s COVID in prisons story: Worldwide, two people out of 100 caught COVID. In the US, nine people out of 100 caught COVID. In the BOP, 39 out of 100 prisoners, although the “true count is most likely higher because of a dearth of testing.”

There’s more than Monday-morning quarterbacking to this hearing. The pandemic is not quite done. Researchers are warning that if the B.1.1.7 variant, which is more contagious, becomes more dominant, the nation could experience another peak in cases this summer that may be worse than the January peak.

It is likely that Thursday will be hamburger day for the Director. After all, Politico says he will be “grilled.”

Senate Judiciary Committee Calendar, Oversight of the Federal Bureau of Prisons

Politico, Prison chief to face congressional grilling (April 9, 2021)

S.328, Federal Correctional Facilities COVID–19 Response Act

DOJ, Statement of Michael D. Carvajal, Director Federal Bureau of Prisons (December 2, 2020)

BOP Press Release, Inmate Death at MCFP Springfield (April 7, 2021)

BOP Press Release No. 2, Inmate Death at MCFP Springfield (April 7, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 9, 2021)

FNN, Frontline feds facing inconsistent access to COVID vaccines (April 6, 2021)

The New York Times, Incarcerated and Infected: How the Virus Tore Through the US Prison System (April 10, 2021)

Insidenova, Spread of new COVID-19 variant may cause another peak in cases this summer, UVa researchers say (April 4, 2021)

– Thomas L. Root

Can You Hear Me (and My Lawyer) Now? – Update for April 9, 2021

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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.

NPR REPORTS ON PUSH FOR ATTORNEY-CLIENT PRIVILEGE IN BOP EMAIL

NPR reported last week on congressional efforts to protect inmate email to lawyers from BOP snooping.

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In February, the House of Representatives approved the Effective Assistance of Counsel in the Digital Era Act by a vote of 414 to 11. The bill, now referred to the Senate Committee on Crime, Terrorism, and Homeland Security, would require the BOP to refrain from monitoring the contents of emails between inmates and their lawyers without a warrant.

The bill’s sponsor, Rep. Hakeem Jeffries (D-New York), said the vote garnered a large bipartisan majority at a time when lawmakers don’t agree on much.

wiretap210409The Congressional Budget Office predicted that if the legislation passed the Senate, the Federal Bureau of Prisons would have to build a new email system and create a registry of approved lawyers — measures it expects could cost $52 million through 2025.

A BOP spokesman told NPR that inmates and their contacts who use the email system “voluntarily consent to having all system activity monitored and retained.” He said that prisoners and their lawyers can communicate through phone, letters, or visits, which he said are not monitored by staff.

NPR, When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased (March 31, 2021)

H.R. 546, Effective Assistance of Counsel in the Digital Era Act

– Thomas L. Root

Patience, People, on Criminal Justice Reform – Update for April 8, 2021

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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.

WHEN WILL BIDEN TACKLE CRIMINAL JUSTICE REFORM?

The most common question I have gotten from inmates since January is when Congress will pass criminal justice reform. It brings to mind the old variation on the serenity prayer: “Lord, grant me patience… and I want it NOW.”

Reform200819But patience is what everyone needs. There’s the infrastructure, the racial reckoning, and now the gun control push (which will probably prevent a minuscule number of gun crimes, but looks all shiny and robust). I am convinced we will get to criminal justice reform, but it will take a bit.

Still, there are some encouraging signs. First, President Biden’s Dept of Justice followed up on its letter to the Supreme Court a few weeks ago with a brief filed last week in Terry v. United States, arguing that Section 404 of the First Step Act covers low-level crack cocaine offenders sentenced under 21 USC § 841(b)(1)(C), “a dramatic reversal that comes more than three decades after a Biden-crafted bill helped to fuel disproportionately harsh penalties for Black drug offenders,” according to The Hill.

But Biden promised more. During his campaign, he promised to address mandatory minimums. Nkechi Taifa, a Washington-based criminal justice reform advocate, believes that will change soon. Taifa said last week that he has been in touch with the Biden administration. “With respect to drugs,” he said, “it’s only about the weight of drugs and amount of drugs that dictates the time you serve. It doesn’t matter what the judge thinks, doesn’t matter what your characteristics are. Biden has said he’ll do away with it.”

return161227Cynthia Roseberry of the ACLU said on NPR last week that Biden could do a lot with a stroke of a pen, such as reverse the DOJ legal opinion in January that people on CARES Act home confinement had to return to prison when the pandemic ended. Last week, NPR reported, “prisoner rights groups asked Biden and Attorney General Merrick Garland to intervene, citing their comments about the need to reduce the prison population.”

And just today, FAMM – which has been active in urging the Dept. of Justice to reverse the legal opinion – is urging people to call the Attorney General to lobby him to take action.

Biden has proclaimed April a second chance month for people involved in the justice system. Roseberry told NPR she wants to see Biden use his sweeping power to grant clemency during the month.

The Hill, Biden urges leniency for harsh crack sentences fueled by his crime bill (March 31, 2021)

WTVR-TV, When will President Biden address criminal justice reform? (April 1, 2021)

NPR, Criminal Justice Reform Advocates Say They’re Anxious To See More Action From Biden (April 2, 2021)

– Thomas L. Root

A Sentencing Commission Phoenix? – Update for April 7, 2021

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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.

SENTENCING COMMISSION REVIVAL NEAR?

phoenix210408The seven-member United States Sentencing Commission, which hasn’t had a quorum since 2018 and is now down to one member, may be about to experience a rebirth.

Rollcall reported last week that the Biden administration has solicited lawmakers and criminal justice advocates for guidance on a slate of appointments, a move that could influence congressional efforts of criminal justice reform.

The commission must include three federal judges and no more than four members from any one political party. The Senate must approve the members. The last confirmation vote was four years ago, for Senior U.S. District Judge Charles Breyer (who is the only remaining USSC member).

Sen. Charles E. Grassley (R-Iowa), ranking Republican on the Judiciary Committee, said last week that the Biden administration is working to avoid Senate confirmation problems for its slate of USSC nominees “because both they – the White House – and this senator, and I’m sure a lot of other senators, want to get the commission up and running so it can do its work.”

Breyer said he anticipates that the White House will put forward a slate of six nominees. Until then, he said, “I think we’re in crisis.” The sentencing structure was designed to change over time and be guided by experience, he said. “And it’s an understandable tendency that if the guidelines don’t reflect reality that they’re ignored or given less weight,” Breyer added.

The Commission’s last Guidelines amendments became effective in November 2018.

Rollcall: Help wanted – Revived commission could spark criminal justice changes (March 29, 2021)

Sentencing Law and Policy, Might we be getting closer to (needed) new nominees for the “frozen” US Sentencing Commission? (March 31, 2021)

– Thomas L. Root

BOP Cooks Books, Congress Stirs Pot – Update for April 6, 2021

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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 COOKING THE COVID BOOKS, ACLU SAYS

White-collar crime inmates could learn something about slick accounting from the BOP.

cookbooks210406Up until five weeks ago, the BOP reported the total number of inmates who had tested positive for COVID-19, adding to the tally daily as new cases arose. As I reported last week, since February 24, the BOP has been changing the number daily by not just adding new cases, but by 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 at least 1,115 through the end of March, which has reduced the positivity rate by a point, from 43.77% (had those inmates remained on the rolls) to 42.75% without them.

The Marshall Project reported the trickery last week, noting its weekly COVID prison “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.”

The ACLU and other prison watchdog groups contend the BOP’s testing procedures are inadequate. According to the Riverfront Times, Sharon Dolovich, the director of the UCLA Law COVID-19 Behind Bars Data Project, said, “We know that those are under-counts because there are many facilities that are reporting zero, or under ten or under twenty infections,” Dolovich says. “And both because of what we know from COVID, and from what we’ve seen in countless facilities a year into the pandemic, we know that if you’re a prison with twenty infections, you have many more than twenty people who are infected.”

Maria Morris, director of the ACLU’s National Prison Project, said that BOP officials are motivated to under-test and therefore to under-count infections. “And then they can say COVID isn’t a problem in our facilities. ‘Look at how low our numbers are,'” she told the Riverfront Times.

A BOP spokesperson responded that BOP employees work closely with local health departments to ensure priority testing is provided to staff who are in close contact with COVID-19-positive personnel, while the federal prison agency has obtained a national contract to perform all staff testing.

battleplan210406“Whatever policies they have on paper aren’t actually being implemented,” Dolovich replied. “So they could tell you things that actually sound good in theory. But when you actually talk to people incarcerated in the various facilities, they will tell you that the reality is very different.”

Even before the BOP’s latest numbers game, Senators Elizabeth Warren (D-Massachusetts) and Cory Booker (D-New Jersey) reintroduced the Federal Correctional Facilities COVID-19 Response Act (S.328 in the Senate) to address inadequacies in the BOP’s COVID response.

The legislation would require correctional facilities to begin providing free, weekly COVID-19 testing and vaccines to both the incarcerated and their employees and assure that they offer free medical care to those who test positive for it. Oversight would include requiring these facilities to submit weekly testing data to the Department of Justice, the Centers for Disease Control and Prevention (CDC), and state public health officials. CDC officials would be dispatched to sites where outbreaks emerged within 72 hours.

BOPCOVID-19-200622“The Department of Justice’s response to the COVID-19 pandemic has been unacceptable and has placed nearly 2.3 million incarcerated people in danger,” Booker said. “It is well known that people in prison and jail tend to have much higher rates of underlying health issues than the general public, and the conditions of confinement make social distancing virtually impossible. As a result, people in prison and jail are disproportionately contracting and dying of COVID-19.”

The BOP ended yesterday claiming only 371 sick inmates. The number of sick staff, however, remains stubbornly at about where it was a week before, 1,268. COVID is still present in 116 facilities. While the BOP claims generally to have delivered 110,489 shots in arms, its detailed listing as of last Friday reveals only 19.2% of the inmate population has been vaccinated.

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 2, 2021)

The Riverfront Times, Why Did a St. Louis Man Die in a Federal Prison Coronavirus Hotspot? (March 24, 2021)

Homeland Preparedness News, Legislation to provide greater oversight of federal prisons’ COVID-19 efforts reintroduced to Congress (April 5, 2021)

S.328, Federal Correctional Facilities COVID–19 Response Act 

– Thomas L. Root

10th Circuit Greenlights Compassionate Release for Over-Long Sentences – Update for April 5, 2021

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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.

PEELING THE COMPASSIONATE RELEASE ONION

peelingOnion210405A trio of appellate decisions last week – two from the 10th and one from the 4th – continue to peel away the uncertainty from the scope of 18 USC § 3582(c)(1)(A)(i) sentence reduction and the factors relevant to whether a reduction will be granted or denied.

You recall that 18 USC § 3582(c)(1)(A)(i) permits the district court that sentenced a defendant to reduce the sentence at any time if the defendant can show “extraordinary and compelling” reasons for doing so, if the reduction is consistent with Sentencing Commission policy statements, and if the reduction is not too much of an affront to the factors listed in 18 USC § 3553(a) that a court is to consider at sentencing.

First, the 10th Circuit joined the 4th in holding that district courts are entitled to broadly interpret “extraordinary and compelling” reasons for granting compassionate release. In two decisions, the 10th reversed district court holdings that the fact Congress had not made First Step Act drug and § 924(c) sentencing changes retroactive does not mean that those changes cannot figure in a compassionate release motion.

Malcom McGee was sentenced to mandatory life back in 2000 for a drug trafficking offense, the stratospheric minimum sentence because he had prior state convictions for drug use and sale. Section 401 of the First Step Act cut the mandatory life minimum in 21 USC § 841(b)(1)(A) to 25 years, but Congress decided against making the change retroactive (a sop Senate Majority Mitch McConnell (R-Kentucky) threw Sens Ted Cruz (R-Texas), Tom Cotton (R-Klingon Empire) and their fellow troglodytes who thought there was nothing wrong with forcing someone sentenced on December 20, 2018, to get life while someone being sentenced two days later to get 25 years).

klingons210405Because First Step did not make the mandatory minimum change retroactive, Malcom found himself in the middle: Congress didn’t cut him a break, and the district court said it could not use compassionate release to grant him a sentence reduction because of Congress’s refusal to apply retroactivity.

The 10th Circuit disagreed:

“The plain text of § 401(c) of the First Step Act makes clear that Congress chose not to afford relief to all defendants who, prior to the First Step Act, were sentenced to mandatory life imprisonment under § 841(b)(1)(A). But nothing in § 401(c) or any other part of the First Step Act indicates that Congress intended to prohibit district courts, on an individualized, case-by-case basis, from granting sentence reductions under § 3582(c)(1)(A)(i) to some of those defendants…The possibility of a district court finding the existence of “extraordinary and compelling reasons” based, in part, on a defendant’s pre-First Step Act mandatory life sentence under § 841(b)(1)(A) does not, in our view, necessarily usurp Congressional power.”

Two days later, the 10th Circuit shut down government arguments in another compassionate release case. Kepa Maumau was convicted of three stacked § 924(c) convictions, receiving a 55-year sentence. The district court granted him compassionate release based on the First Step Act’s change of § 924(c) which was to not impose the 25-year sentence for a subsequent § 924(c) conviction unless the defendant had already been convicted of a prior one. The court also considered Kepa’s youth at the time he committed the crimes and his rehabilitation in prison.

But Kepa stayed in prison because the government appealed, arguing that the U.S. Sentencing Commission alone, not the courts, has power to determine what constitutes an extraordinary and compelling reason for compassionate release. What’s more, the government complained, a district court has no authority to grant compassionate release based on its disagreement with the length of a mandatory sentence.

Sentencestack170404The Circuit bluntly rejected these arguments, holding that the government’s “underlying premise is incorrect. Nothing in the district court’s decision indicates that the district court granted relief to Maumau based upon its general disagreement with the mandatory sentences that are required to be imposed in connection with § 924(c) convictions. Nor was the district court’s decision based solely upon its disagreement with the length of Maumau’s sentence in particular. Rather, the district court’s decision indicates that its finding of “extraordinary and compelling reasons” was based on its individualized review of all the circumstances of Maumau’s case and its conclusion “that a combination of factors” warranted relief, including: “Maumau’s young age at the time of” sentencing; the “incredible” length of his stacked mandatory sentences under § 924(c); the First Step Act’s elimination of sentence-stacking under § 924(c); and the fact that Maumau, “if sentenced today… would not be subject to such a long term of imprisonment.”

Kepa went home last Friday.

Finally, the 4th Circuit handed Ryan Kibble a loss, but in an opinion interesting for its concurring opinion discussing § 3553 factors. Ryan was locked up at FCI Elkton, a notorious BOP COVID-19 hotbed, for 87 months after a conviction for soliciting sex from a female cop (whom Ryan thought was a 14-year old girl).

One of the sentencing factors set out in § 3553(a) is that the sentence be “just punishment” for the offense. District courts have grappled with § 3582(c)(1)(A)’s directive that they “consider[]” the § 3553(a) factors, and more than one has said it already applied the factors at sentencing, and it would stand on its previous position.

lockdowncovid210405But “[s]ection 3582(c)(1) necessarily envisions that the § 3553(a) factors may balance differently upon a motion for compassionate release than they did at the initial sentencing,” Chief Judge Roger Gregory wrote in his concurrence. “An individual requesting compassionate release will, in all cases, be serving a sentence that a district court once held was ‘sufficient but not greater than necessary’. If a district court’s original § 3553(a) analysis could always prove that a sentence reduction would intolerably undermine the 3553(a) factors, then 18 U.S.C. § 3582(c)(1) would, in effect, be a nullity. There is good reason to believe that, in some cases, a sentence that was “sufficient but not greater than necessary” before the coronavirus pandemic may no longer meet that criteria. A day in prison under the current conditions is a qualitatively different type of punishment than one day in prison used to be. In these times, drastically different. Some facilities house inmates who now serve their sentences knowing that they are not equipped to guard against a virus that may result in serious illness or death. Other facilities keep COVID-19 at bay by placing inmates in solitary confinement, ending prison programs, restricting visitation, and limiting access to nonessential medical care… These conditions, not contemplated by the original sentencing court, undoubtedly increase a prison sentence’s punitive effect.”

United States v. McGee, Case No. 20-5047, 2021 U.S. App. LEXIS 9074 (10th Cir. March 29, 2021)

United States v. Maumau, Case No 20-4056, 2021 U.S. App. LEXIS 9510 (10th Cir.  April 1, 2021)

United States v. Kibble, Case No 20-7009, 2021 U.S. App. LEXIS 9530 (4th Cir.  April 1, 2021)

– Thomas L. Root

Lawsuits and Voodoo Accounting: Last Week in the BOP COVID Wars – Update for April 1, 2021

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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.

INMATE COVID CLASS ACTION SUITS GO 1-1

habeas_corpusThe 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.

numbers180327The 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.”

unperson210401It’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