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Did the BOP’s New ETC Rules Get Hijacked By Biden? – Update for January 18, 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.

THE UNSEEN HAND WRITES NEW BOP EARNED TIME RULES?

The Federal Bureau of Prisons last week announced final rules for granting federal time credits (“FTCs”) to inmates who successfully complete specified programs designed to reduce recidivism or engage in what the statute calls “productive activities.”

In November 2020, the BOP finally got around to proposing rules for granting FTCs under the incentives program authorized two years before in the First Step Act. The agency proposed a rule that would require 240 classroom hours of successful programming in order for an inmate to receive a mere 15 days credit on his or her sentence. At the time, I said, “In the BOP, a 500-hour program takes 12-18 months to complete. That may seem like a fairly substantial commitment for a month more of home confinement. But it is consistent with what we’ve come to expect from the BOP: given a chance to interpret the extent of its authority to be lenient, it invariably interprets that authority in the most chary way possible.”

[Editor’s note: Yes, I said “most chary.” My wife the grammarian, has since pointed out that the superlative of “chary” is “chariest.” I’d fire her, but she’s been right too many times before.]

icecreamsundae210118In my experience practicing administrative law back in the day, when an agency rolled out proposed rules in a Notice of Proposed Rulemaking for public comment, the final product looked a lot like what had been proposed, perhaps with a tweak here and there. Once in a blue moon, an agency might back off after an especially loud and sustained hue and cry from the industry and public, but rulemaking was a lot like ordering an ice cream sundae – you could specify which sprinkle, nuts, sauce, and cherry you wanted on it, but the 95% of it that was ice cream was fixed and was not going to change.

The history of agency rulemaking since the passage of the Administrative Procedure Act of 1946 makes what happened to the FTC rules so puzzling. It’s like the BOP specified an ice cream sundae, but delivered a cup of mashed potatoes and gravy instead.

The new rules, already being applied to hundreds if not thousands of inmates, represent a total repudiation of the BOP’s proposed rules announced a year ago.

I reported on the changes in the rules – the “what” – last Friday. What I didn’t talk about was the “why.” Even now, I am unsure of what caused the sea change at the BOP, but there are some hints. Traditionally, the BOP director has scrambled to imprint any favorable program with his or her initials. Yet, last week, BOP Director Michael Carvajal was strangely silent, while Attorney General Merrick Garland took a victory lap in a press release. The fact that the Attorney General issued a statement supporting the new rules, but Carvajal did not, suggests that the Biden DOJ grabbed hold of the FTC process after the BOP sought to impose Draconian limitations on the program.

sycophant220118Several members of Congress – such as Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, Sheldon Whitehouse (D-RI), John Cornyn, (R-TX) and Cory Booker (D-NJ), on the Senate side, and Hakeem Jeffries (D-NY), on the House side – criticized the proposed rules in public comments. That may have played a factor as well. The BOP’s report adopting the final rule mentioned their comments, such as this excerpt from Sens. Whitehouse’s and Cornyn’s filing:

The proposed rule’s definition of a “day” of program participation does not adequately reward engagement with [EBBR programs] and PAs consistent with the First Step Act. . . Because BOP programs do not run for eight hours per day, the proposed rule would require individuals to attend an EBRR or PA for several calendar days before they earned a full “day” of time credit. . . It was not our intent as drafters of the legislation that BOP define a “day” in this way. Nor did Congress ever consider it. . . The proposed rule’s narrow definition of a “day” does not adequately incentivize program participation and reduce recidivism as intended by the First Step Act.

The fact that the legislators’ comments were singled out approvingly – maybe even fawningly – in the report would permit a reasonable person to infer that the BOP was sending the two Judiciary Committees a message that their concerns were being addressed.

The Hill noted that the new rules were announced “just one week after the DOJ revealed that BOP Director Michael Carvajal would be resigning from his post. He had faced criticism during his time as chief of the bureau.” Fox News said “the Biden administration has faced increased pressure from both Democratic and Republican lawmakers to do more to put in place additional aspects of the First Step Act, and the bureau has been accused of dragging its feet.” Associated Press observed that the final rules came “about two months after the department’s inspector general sounded an alarm that the Bureau of Prisons had not applied the earned time credits to about 60,000 federal inmates who had completed the programs.”

It seemed strange that several media outlets connected the Director’s departure with the release of the rules. It is fair to note that there is no logical reason for his announcing the retirement on January 6th, especially when the actual date was left open (he said he would stay on until a new director is appointed). The timing, as The Hill implied, may be linked to the dramatic turn in the BOP’s approach to FTCs.

bidensuperman210201

Likewise, Fox News may have settled on another reason. President Biden has taken a lot of heat recently for doing nothing on criminal justice reform. Probably because he has done nothing. Hijacking the rules and rewriting them the way Congressional Democrats would love and Congressional Republicans would accept may have been seen by the White House as a cheap fix: liberal FTC rules did not require Congressional approval and conservatives could hardly complain, because all Biden was doing was carrying forward a program President Trump proudly owned, the First Step Act.

Don’t get me wrong. I’m not complaining that the BOP did the right thing. I’m puzzled, that’s all.

Associated Press, Thousands of federal inmates to be released under 2018 law (January 13, 2022)

Dept of Justice, Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act (January 13, 2022)

BOP, Final Rules for Federal Time Credits Program (January 13, 2022)

BOP, FSA Time Credits (January 13, 2022)

The Hill, Thousands of federal inmates being released this week under law signed by Trump (January 13, 2022)

Fox News, Federal inmates to be released under ‘time credits’ program (January 13, 2022)

– Thomas L. Root

Merry (Belated) Christmas! – Update for January 14, 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 WOWS WITH FINAL EARNED TIME CREDIT RULES

christmas220114My grandfather always would say, “Christmas comes but once a year, and when it comes, it brings good cheer…”

Grandpa was never a federal inmate.

In what can only be classified as a stunning turnaround, the Federal Bureau of Prisons yesterday announced its final rules for granting federal time credits (“FTCs”) to inmates who successfully complete specified programs designed to reduce recidivism or engage in what the statute calls “productive activities.”

The First Step Act enacted the FTC program. The notion was that a scoring system – should classify inmates as to the risk that they would be recidivists – we now know it as the PATTERN score – and their programming needs to reduce that risk should be assessed. The BOP would then tell the inmate which programs he or she should complete to address those needs (for example, a course in anger management, apprenticeship training, or substance abuse treatment). Ideally, inmates who complete such EBRR programs will be less likely to commit new crimes after release.

To encourage inmate participation, the prisoners collect ten days of FTC credit for every month in which they participate in such “evidence-based recidivism reduction” – or “EBRR” – programs. If they are considered “low” or “minimum” recidivism risks, they may get an extra five FTC days a month.

The FTC credits may be used to shorten an inmate’s sentence by up to 12 months. If an inmate earns more than 12 months of FTC credits, the extras can be used to earn more halfway house or home confinement.

devil200113But as with everything, the devil’s in the details. First Step provides that “a prisoner shall earn ten days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” But precisely what is a “day?”

In its proposed rule, the BOP proposed that a “day” was eight hours long, meaning that an inmate would have to log eight hours of EBRR instruction to earn one day of programming credit. That means that 30 days of successful EBRR participation would require 240 hours. The proposal was Draconian.

The BOP’s position was even worse than that. It proposed that inmates could only start to earn FTC credits after January 15, 2020, or – horror of horrors – January 15, 2022 (yes, that’s tomorrow, for you calendar-challenged people). The number of programs considered to be EBRR-worthy was limited, and the long list of convictions that excluded inmates from participation unfairly limited the number of people who could participate.

The BOP’s deadline for full implementation of the FTC is upon us. Yesterday, I complained that the whole furball was ripe for endless litigation and that the BOP had not adopted the final rules, oppressive as they might be.

hamburger160826I am impressed at the extent of my influence. Within an hour of posting my blog, the Dept of Justice announced that the final rules had been adopted. And what a set of rules they are! I should write a blog demanding that each inmate get TWO cheeseburgers at lunch on Hamburger Day (which is Wednesday, for those of you who haven’t been locked up).

• The terrible 8-hour day standard has been jettisoned. Now, any day an inmate spends enrolled in an EBRR or productive activity is an FTC day. This means that if an inmate works at an orderly job for a couple of hours, works out for a few hours, watches some TV, goes to the chow hall, and spends an hour in an EBRR anger management class, he or she will be credited with one day of FTC credit.

• Inmates will receive credit for any EBRR program completed after December 21, 2018, the day the FSA was signed by President Trump. This is a windfall. The BOP had not even applied the PATTERN score to inmates and assessed needs until January 2020. After that date, FTC credit is only assigned if an inmate completes an EBRR course to which he or she has been assigned. But for any courses completed before the 2020 needs assessment, the BOP will assume a need. So an inmate who had been a banker with an MBA from Harvard took the “Money Smart” program in 2019 for something to do? She gets FTC credit.

• The BOP has taken to heart complaints that the EBRR programs and (especially) the productive activities were too limited. It has promised that “new funding allotments will enhance the Bureau’s course offerings, largely by permitting it to increase capacity through hiring additional staff, and will also serve to bolster the Bureau’s resources, thereby improving its ability to carry out the FSA Time Credits program.” Participation in RDAP, working at UNICOR, and taking correspondence college courses will earn FTC credit for inmates. However, the BOP has not suggested that it will remove the cap on how many FTC credits can be earned. Right now, 15 weeks in UNICOR earns an inmate 500 hours of FTC credit. So does 15 years.

For that matter, because the prior caps – all of which were expressed in terms of “hours,” a metric without any value now that the 8-hours-is-a-day standard has been abandoned – will probably have to be redone.

• The BOP will award FTC credits for successful months of participation, not only for successful completion of the EBRR courses.

• FTC credits will be available to inmates in halfway houses and home confinement (although the BOP acknowledges some difficulty in delivering such programs in halfway house or home confinement environments).

education180205Right now, only about 41% of BOP inmates (65,000) are eligible to earn FTC credits. There is little the BOP can do about that because the limitations were written into the First Step Act by Congress. However, the BOP does have some latitude in defining prior convictions as “violent,” and it has promised to “ensure that its facilities receive updated information as to which federal and state offenses qualify or are the subject of litigation and that inmate records are updated to ensure maximum participation in credit-earning EBRRs.”

The BOP has promised to immediately apply FTCs to people closest to release. I’ve heard that before. But last night, I called an inmate in a halfway house whose release date was in May to tell him about the new rules. Not more than an hour later, he called me back to tell me he had just been called into the office to sign immediate-release papers. He goes home today.

pony2230114

There will be many nuances to discuss in the coming weeks, but for now, the DOJ’s prediction that releases “are expected to begin this week… and that ‘thousands’ of inmates are being affected,” as the Associated Press put it, is not far off.

A late Christmas gift, but I expected new socks. Instead, we got that pony we’d always wanted.

Associated Press, Thousands of federal inmates to be released under 2018 law (January 13, 2022)

Dept of Justice, Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act (January 13, 2022)

BOP, Final Rules for Federal Time Credits Program (January 13, 2022)

BOP, First Step Act Approved Programs Guide (July 2021)

– Thomas L. Root

Forget I said What I said… – Update for January 13, 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.

GLAD TO EAT MY WORDS

Victory220113Not more than an hour after I posted the blog below, the Dept of Justice issued a press release announcing that the Bureau of Prison had adopted a final rule for application of its earned-time credit program.

I practiced administrative agency law in Washington, D.C., for a long time, but I never have seen such an agency execute such an astounding about-face on a proposed rule between the Notice of Proposed Rulemaking and final order before.

It’s Christmas Day for inmates. I will take a dive into the new rule for a blog tomorrow.  For now, suffice it to say… wow.

Ignore the following:

BOP EARNED TIME CREDIT MEMO PORTENDS LITIGATION

delay190925The Federal Bureau of Prisons has been stalling full implementation of First Step Act earned time credits for three years now, but the clock runs out in a few days. By then, the BOP is supposed to have the earned-time credit program (which the BOP is calling “Federal Time Credits”) fully implemented.

Under the FTC program, prisoners who successfully complete recidivism reduction programming and productive activities are eligible to earn up to 10 days of FTCs for every 30 days of program participation. Minimum and low-risk inmates will get 15 days. But the list of programs and productive activities is limited, the list of eligible prisoners is even more limited, and the BOP has thus far fought inmates’ efforts to win any credit.

That has resulted in decisions such as an Oregon holding from November that the BOP’s belief that “may delay awarding time credits to inmates that complete qualifying programming until January 15, 2022, is contrary to the statute.”

Forbes magazine last week published portions of an “internal memorandum posted at some prison camps.” The memo said that beginning in January 2022, the Bureau will begin applying FTC under this update. However, while inmates with high and medium PATTERN risk levels may earn FTC, only those with low and minimum levels may actually use them.

The BOP plans to apply the first 365 days of FTC time to early release, with “[a]ny FTC earned beyond that may be applied toward community placement.” The BOP plans to update sentence computations in the next few months, with the Bureau’s Designation and Sentence Computation Center to “prioritize based on those inmates we project to be immediate releases, beginning with inmates in community placement.”

confusion200424Forbes predicts that “far from clarifying things… implementation of [FTC]… will be almost impossible over the near term. This affects multiple levels of the criminal justice system; prisons, halfway houses, home confinement, and supervised release. It is an intricate web of agencies that manage the incarceration and supervision of hundreds of thousands of people in the federal criminal justice system. Thousands will file lawsuits whether they are in prison, halfway houses, home confinement, or supervised release, fighting for their right to a broadly defined, and subject to BOP discretion, FSA credit… This is going to be more complicated than anyone ever imagined.”

The great unsettled question is exactly what constitutes program participation. Inmates were jubilant when First Step passed, because everyone wrongly assumed that if one had an hour-long evening class four days a week for four weeks, he or she would have earned 16 days of programming credit on successful completion. But then the BOP proposed rule – which has not yet been adopted – holding that a day of program participation was equal to eight hours of programming. Under that metric, an hour a day four days a week for four weeks would be worth 16 hours, or two days of programming, not 16 days.

What was as bad, the credits for “productive activities” are capped. Working in UNICOR – the Federal prison industries – has a well-earned reputation for reducing recidivism. But credit for UNICOR work is limited to 500 hours. In other words, if one works in UNICOR for four months at 35 hours a week, he or she has amassed 500 FTC hours, which translates to 62 days, which translates to two months. Two months of FTC credit is worth 30 days off the sentence.

If the inmate works in UNICOR for 10 years (which would be about 17,500 hours), he or she would still get 30 days off his or her sentence. Is the favorable effect of 10 years of productive factory work on recidivism no different than four months? The BOP rule would seem to suggest so.

oddcouple210219As of today, the rulemaking proceeding has not been completed, yet another failure of the BOP to get anything done on time. What’s more, Senator Richard Durbin (D-Illinois), chairman of the Judiciary Committee, and Committee Ranking Member Senator Charles Grassley (R-Iowa) jointly blasted the proposed rule last May, asking the Attorney General to “reevaluate and amend the rule consistent with the statute’s goals of incentivizing and increasing program participation to reduce recidivism. Establishing robust programming and a fair system to earn time credits is critical to meeting the FSA’s goal of reducing recidivism.”

Durbin and Grassley are the fathers of the First Step Act, suggesting that perhaps they know what they meant when they wrote it.

Whether anyone listened has yet to be answered. It’s a cinch that if the BOP’s 8-hour-day rule gets adopted, there will be litigation.

Forbes, Implementation of The Criminal Justice Reform Law, First Step Act, Will Likely End Up In Court (January 5, 2022)

Cazares v. Hendrix, Case No 3:20-cv-02019, 2021 U.S. Dist. LEXIS 240776 (D. Ore., November 9, 2021)

Press release, Durbin, Grassley Press DOJ to Strengthen First Step Act Rule on Earned Time Credits to Incentivize Rehabilitation (May 5, 2021)

– Thomas L. Root

January 2022 Really Is January 2021 Redux – Update for January 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.

COVID ROILS THE BOP

control200511BOP inmate COVID cases shot up last week at a rate not before seen since the pandemic started. On the last reporting day in 2021 (Thursday, Dec 30), 1,194 inmate COVID cases were reported. Yesterday, the number shot up to 3,761, a number not seen since January 21 of last year.

Yesterday’s number was 200% of the 21-day rolling average, the highest number recorded since the pandemic began.

Staff cases aren’t faring much better, up 141% in a week to 992 cases. COVID is now present in 127 facilities. Last week, the BOP reported two more inmate deaths, one at Beaumont and another at Lewisburg. The Lewisburg death occurred 11 months ago but only now has been recharacterized as COVID-related (a belated admission that either impresses you at the BOP’s candor or frightens you at the Bureau’s failure to properly identify the death at the time). However, the Beaumont death just occurred and – as with more than 55% of all deaths since March 1, 2021 – was the passing of someone whom the BOP had previously declared to be “recovered” from an earlier bout of COVID.

BOP vaccinations have slowed. Last week, 74,2% of inmates and 69.4% of staff had been vaccinated. Over the past month, those numbers rose 3.2% for inmates and 2.1% for staff, a slower rate than in November, when the monthly vax increase was 3.8% for inmates and 9.8% for staff.

A New York emergency room physician said last week that the current COVID omicron surge is different, both in who’s coming to the ER and how they’re being affected by the variant. “Like before, some [COVID patients] were really short of breath and needing oxygen. But for most, COVID seemed to topple a delicate balance of an underlying illness. It’s making people really sick in a different way.”

deadcovid210914Meanwhile, Bloomberg reported Saturday that a new COVID variant being called “deltacron” has been identified in Cyprus. According to Leondios Kostrikis, a University of Cyprus professor and director of the Laboratory of Biotechnology and Molecular Virology, said, “There are currently omicron and delta co-infections and we found this strain to be a combination of the two,” Kostrikis said in an interview with Sigma TV on Friday. “We will see in the future if this strain is more pathological or contagious or if it will prevail” over delta and omicron, he said.

As of yesterday, however, an Imperial College (UK) scientist cast doubt on the Cypriot report, saying “the so-called ‘Deltacron’ variant that was discovered on the island of Cyprus ‘looks to be quite clearly contamination’,” according to French news and current affairs public radio station RFI.

The BOP filed a motion last week to dissolve the preliminary injunction issued against FCC Lompoc in the class-action lawsuit over its management of the COVID pandemic. That injunction issued July 14, 2020, identifying inmates vulnerable to COVID and beginning the process of release to CARES Act home confinement. Citing the Prison Litigation Reform Act and a December 10th 9th Circuit decision in another case, Ahlman v. Barnes, the government is arguing that the PLRA automatically dissolves injunctions issued against prisons after 90 days.

The District Court has ordered briefing on the issue.

Questions about the BOP’s management of the virus at FCI Danbury may be heating up again. Danbury was the focus of the first successful class-action suit, Martinez v. Brooks, over BOP COVID management 18 months ago.

Senators Richard Blumenthal and Chris Murphy (both D-CT) and Rep Jahana Hayes (D-CT) last week sent a letter to the Attorney General, BOP Director and acting FCI Danbury warden over “highly disturbing” reports on COVID at the facility. The letter alleges that over half of the women at FCI Danbury camp tested positive on Dec 27, but weren’t isolated or initially told whether they had the virus. “These actions, if true, are shockingly reckless and contrary to BOP and CDC guidelines,” the letter said, and “endanger not only the women at the Camp, but also staff and the surrounding communities.”

As of January 10th, 61 of the 86 women at the Camp had COVID.

Inmate families were protesting last week outside of FPC Alderson, alleging high COVID transmission and inmate mistreatment at the West Virginia women’s facility. Organizers said they hope to spark a movement for prison reform nationwide for access to healthcare and basic needs.

Allegations included that the prison suffered from a lack of food, feminine products, commissary items, and hot water. Paul Petruzzi, an attorney representing ten Alderson inmates suggested the facility was not using CARES Act home confinement authority, a complaint inmates have been making for the last year.

crazynumbers200519Finally, a media report about a COVID outbreak at FCI Ray Brook in upstate New York included a note of interest to people who have ever doubted the accuracy of BOP COVID numbers. The Adirondack Daily Enterprise reported last week that last year, Ray Brook “had a COVID-19 outbreak which peaked at 130 inmates and 25 staff testing positive at one time. These numbers were only discovered weeks after the fact, when the corrections officer union for FCI Ray Brook – AFGE CPL33, Local 3882 – raised concerns that the BOP was not publicly reporting all of its COVID-19 data at the facility.”

Beaumont Enterprise, Third COVID-recovered senior inmate dies at Beaumont federal prison (January 5, 2022)

WNBC-TV, Omicron Variant Symptoms: Latest COVID ‘Making People Really Sick in a Different Way’ (January 4, 2022)

Bloomberg, Cyprus identifies ‘deltacron’, a variant that combines delta and omicron (January 8, 2022)

Santa Maria Times, Motion to dissolve federal prison COVID-19 injunction continued (January 4, 2022)

Adirondack Daily Enterprise, 40 inmates at FCI Ray Brook test positive for COVID-19 (January 8, 2022)

Martinez-Brooks v. Easter, 459 F. Supp.3d 411 (D. Conn. 2020)

WVNS-TV, Relatives of Alderson Federal Prison inmates allege mistreatment at peaceful protest (January 5, 2022)

News Times, Investigation into Danbury prison COVID conditions called for by delegation: ‘Shockingly reckless’ (January 4, 2022)

– Thomas L. Root

COVID Outlasts Carvajal – Update for January 10, 2022

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BOP DIRECTOR DISCOVERS HOW LONELY IT CAN BE AT THE TOP

snowball220110I wrote a little last week about the resignation of Federal Bureau of Prisons director Michael Carvajal, but it’s worth revisiting, if only to round up the reaction and context. Summed up neatly, he was rolled by events he didn’t see coming.

Recall that Carvajal last week announced he’s retiring, a decision that came six weeks after Sen. Richard Durbin (D-Illinois), Chairman of the Senate Judiciary Committee, demanded that Attorney General Merrick Garland fire him. Carvajal, a 30-year BOP veteran, was appointed director in February 2020.

A day after Carvajal’s announcement, BOP deputy director Gene Beasley announced his retirement effective May 31.

The BOP said Carvajal will stay on for an interim period until a successor is named. It is unclear how long that process would take.

The Associated Press said that Carvajal has “been at the center of myriad crises within the federal prison system.” To a certain extent, he stepped into the messes rather than made them himself. For example, the AP reported that more than 100 Bureau of Prisons workers have been arrested, convicted, or sentenced for crimes since the start of 2019, including a warden charged with sexually abusing an inmate. Those problems have been long festering. The scandal at MCC New York – brought to public attention with the 2019 suicide of Jeffrey Epstein – hardly started when Carvajal became director. Likewise, BOP employees misbehaving is not a new phenomenon. But for better or worse, the bad press came down on the BOP while Carvajal was at the helm.

Carvajal was hardly a BOP virgin. He served as assistant director from 2018 to 2020, so one could reasonably conclude he was aware of messes in Atlanta, New York, and elsewhere when he took office.

But the one epic fail that belongs solely to Carvajal is COVID. He took office just as COVID-19 was taking off, and one could argue he never took his blinders off. “I don’t think anybody was ready for this Covid, so we’re dealing with it just as well as anybody else and I’d be proud to say we’re doing pretty good,” Carvajal told CNN in April 2020.

flatten200609“Doing pretty good?” Two months into the pandemic (about 48,000 inmate COVID cases ago), Carvajal confidently told the Judiciary Committee that “at this point, we have more recoveries than new infections. And I believe that this shows that we are now flattening the curve.” Six months later, the total number of inmate COVID cases had climbed to over 24,000. Nevertheless, Carvajal told the House Subcommittee that “the Bureau has a sound pandemic plan in place and a well-established history of managing and responding to various types of communicable disease outbreaks.”

As of today, more than 50,000 BOP inmates have contracted COVID, at least 290 federal inmates are dead, and the BOP’s ham-handed response has been successfully challenged in court in Connecticut, Ohio, and California, to mention a few locations.

The AP reported that Carvajal’s term included “a failed response to the pandemic, dozens of escapes, deaths and critically low staffing levels that have hampered responses to emergencies.” The Washington Post reported, “With Carvajal presiding over the agency for effectively the entirety of the pandemic so far, about one in three Bureau of Prisons inmates has tested positive for the virus, according to agency data, a rate nearly double that of the general U.S. population.”

Jose Rojas, president of the Southeast Council of Prison Locals, AFGE – federal correctional officers’ union – was derisive. “Destructive actions by Carvajal have crippled this agency to the point of uncertainty, like a tornado leaving destruction behind… He was a disgrace to our agency. Good riddance.”

notdonegood220110Durbin issued a statement that was no more flattering: “For years, the Bureau of Prisons has been plagued by corruption, chronic understaffing, and mismanagement. In the nearly two years since Director Carvajal was handpicked by then-Attorney General Bill Barr, he has failed to address the mounting crises in our nation’s federal prison system, including failing to fully implement the landmark First Step Act. His resignation is an opportunity for new, reform-minded leadership at the Bureau of Prisons.”

That’s the best observation: No matter whether Carvajal was a victim, a rapscallion, or a bumbler, perhaps the Administration will seize this opportunity to pick “new, reform-minded leadership,” someone from outside the Bureau, someone who will be a champion of what Congress has mandated in the First Step Act, the CARES Act, and other prison reform measures.

Associated Press, US prisons director resigning after crises-filled tenure (January 6, 2022)

Washington Post, Bureau of Prisons director to resign after scandal-plagued tenure during pandemic (January 6, 2022)

CNN, Bureau of Prisons leader retiring under political pressure from lawmakers seeking his ouster (January 5, 2022)

Testimony of Michael Carvajal before the Senate Judiciary Committee (June 2, 2020)

Statement of Michael D. Carvajal before House Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security (December 2, 2020)

Northwest Arkansas Democrat-Gazette, Two execs of prisons resigning (January 7, 2022)

Durbin Statement on Resignation of Director Carvajal from Federal Bureau of Prisons (January 5, 2022)

– Thomas L. Root

Seems Foolish To Have To Say This Again… – Update for January 7, 2022

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BUT HOW ABOUT THE 65% BILL? DIDN’T THAT PASS?

easterbunny210916A month ago, I tried to bust the most pervasive inmate myths. Judging from my email, I failed miserably.

So I will take a day off from COVID in the BOP (now with 2,886 sick inmates – up a whopping 87% from a week ago – and 790 sick staff – up 48% in a week) and from following up on the soon-departed Michael Carvajal)… aNd I will try again.

Pay attention, kiddies. There is NO 65% bill, 65% law or 65% anything. There is NO proposal to cut federal sentences so that everyone will only serve 65%. There is NO bill, law, NO directive from Biden, and NO anything else that will give inmates extra time off because of the pandemic.

Nothing, nada, zilch, bupkis.

One guy complained after my last myth-busting post that I had “misrepresented” things because there is indeed a bill pending that would let nonviolent first-time offenders who are 45 years old get out at 50% of their sentences.

jacksonleebill220107

Yeah, I admit it. There is such a bill. Just like I have a picture of a unicorn. But the picture doesn’t make a unicorn any more real. And Rep Sheila Jackson Lee’s (D-TX) perennial tilt at the windmill doesn’t make the legislation a serious contender.

Yes, Jackson Lee has (once again) introduced a bill to dramatically cut federal sentences. She tossed it in the hopper last spring, an event that I did not bother to note at the time. Her Nonviolent Offender Relief Act of 2021 is a variation of the bill Jackson Lee has introduced in every Congress since 2003 (that’s nine times), except for the 116th (2019-2020). None has ever collected a single co-sponsor. The bill has always gone to the House Judiciary Committee, never to be seen again. Joe Biden is more likely to be Donald Trump’s running mate in 2024 than this bill is to ever see the light of day.

If you want to know what criminal justice reform legislation stands a chance in this Congress, look elsewhere.

H.R.132 – Federal Prison Bureau Nonviolent Offender Relief Act of 2021

– Thomas L. Root

“Mikey, We Hardly Knew Ye” – BOP Director Resigns (and Other Stories) – Update for January 6, 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 BLUES

A lot’s going on in the BOP, and little of it can be lifting spirits at Central Office.

carvajal220106Carvajal’s Out: Federal Bureau of Prisons Michael Carvajal announced yesterday that he’s resigning, six weeks after the Chairman of the Senate Judiciary Committee demanded that Attorney General Merrick Garland deliver his head on a platter.

Carvajal, appointed during the Trump administration, has “been at the center of myriad crises within the federal prison system,” according to the Associated Press. The BOP characterized the decision as a “retirement,” which – after 30 years as a BOP employee – Carvajal is certainly entitled to do.

The BOP said he will stay on for an interim period until a successor is named. It is unclear how long that process would take.

The beginning of the end for Carvajal came in November, when the AP reported that more than 100 Bureau of Prisons workers have been arrested, convicted, or sentenced for crimes since the start of 2019, including a warden charged with sexually abusing an inmate. The AP stories apparently prompted Sen. Richard Durbin (D-Illnois), chairman of the Judiciary Committee, to call for Carvajal’s removal.

Carvajal took office just as COVID-19 took off, and included “a failed response to the pandemic, dozens of escapes, deaths and critically low staffing levels that have hampered responses to emergencies,” the AP said.

“We are very appreciative of Director Carvajal’s service to the department over the last three decades,” DOJ spokesman Anthony Coley said in a statement. “His operational experience and intimate knowledge of the Bureau of Prisons — the department’s largest component — helped steer it during critical times, including during this historic pandemic.”

Atlanta: Last week, Forbes magazine got its hands on an internal BOP memorandum from 2020 revealing just how much of a mess USP Atlanta was a year before the Bureau took the extraordinary step of shipping out 1,100 inmates and shuttering the facility for an extensive rehabilitation.

jailbreak211025The Atlanta Journal-Constitution reported in 2017 about the “Wild West” atmosphere that defined USP Atlanta and its satellite minimum prison camp. According to an August 31, 2020 memorandum to the Southeast Region of the BOP, “USP Atlanta presents significant security concern for the Southeast Region … [which] requires immediate corrective action.”

Forbes reported the memo resulted from a Security Assessment performed just months after USP Atlanta passed its Program Review with a “Good” score. Program Reviews examine the adequacy of controls, efficiency of operations, and effectiveness in achieving program results. Institutions receiving a grade of “Good” qualify for a break of three years before another such review. Forbes reported that some have questioned whether the reviewers and facilities managers “have become too chummy because members who conduct those reviews consist of BOP management from peer institutions.”

Forbes said, “These are unprecedented times for the BOP. MCC New York closed earlier this year because the building had fallen into disrepair, staff corruption cases abounded and the widely reported suicide of Jeffrey Epstein. FCI Estill (South Carolina)… was hit by a tornado that ripped up the fence, tore off parts of the roof and caused heavy damage to the facility. Within days of the incident, hundreds of inmates were transferred to a prison hundreds of miles away in Pennsylvania. The remaining camp level… inmates now live in deplorable conditions at the damaged institution. As USP Atlanta’s problems continue to mount, it is just one more blow to an agency that appears to be in free-fall.

A BOP employee who works at another institution and who also reviewed the memorandum told Forbes, “The items listed are not a surprise. If they did this same type of assessment at other USPs they would get the same result, or close to it.”

violent160620Hazelton: The correctional officer who is president of AFGE Local 420 AFGE last week blamed increasing violence at USP Hazelton – contraband weapons, a “massive” fight in a housing, and a stabbing on Christmas Eve – on a lack of leadership from the warden, Richard Hudgins.

“Over the last few weeks there has been an immense amount of violence heightened at the prison due to the lack of leadership from our warden who is retiring this month,” Union President Justin Tarovisky said.

The BOP declined to comment to the Morgantown Dominion-Post on “anecdotal allegations,” but issued a statement that “We can assure you there are qualified management staff at the institution to ensure FCC Hazelton operates in a safe and secure manner and provides the programs that are critical for successful prisoner reform.”

FMC Carswell: A Southern Illinois federal judge last week issued a 61-page opinion ordering the BOP to evaluate ther request of a transgender inmate – now held at FMC Carswell – for gender confirmation surgery.

trans220106Chief Judge Nancy J. Rosenstengel ruled that the BOP’s Transgender Executive Council must evaluate the inmate, who is a biological male seeking surgery to transition to female, within a month. The Judge issued several pages of specific instructions and timelines for the BOP to meet, depending on whether it recommends or refuses to recommend the inmate for surgery.

The opinion, which has gotten media attention due to its holding that the BOP’s failure to address transgender matters as an 8th Amendment violation, is also noteworthy for the judge’s scathing dismissal of BOP excuses for not acting before, inasmuch as the inmate has served almost 30 years in BOP custody and always claimed gender dysphoria. “Administrative convenience and cost may be, in appropriate circumstances, permissible factors for correctional systems to consider in making treatment decisions,” the judge wrote. However, “the Constitution is violated when they are considered to the exclusion of reasonable medical judgment about inmate health.”

You Just Had the Wrong Prosecutor:  Last week, as Ghislaine Maxwell was convicted of sex trafficking offenses for assisting Jeffrey Epstein in procuring and grooming underage girls, the US Attorney in Manhattan quietly dismissed all charges against the two BOP correctional officers accused of felonies for falsifying reports connected to the 2019 Epstein suicide at MCC New York.

jailfree140410Prosecutors had said the COs napped, caught up on the news, and shopped for motorcycles and furniture instead of doing their rounds at the MCC. Epstein was held there while awaiting trial on sex trafficking and sexual-abuse charges. Last May, the COs entered into a deferred prosecution agreement where prosecutors agreed not to bring their case to trial until after they finished cooperating with an investigation by the DOJ Inspector General. The OIG has yet to release a report in connection with the investigation.

The conservative publication American Thinker said, “The message being sent by the light punishment for the prison guards whose negligence enabled Epstein’s death is pretty clear. If Maxwell were to “commit suicide” or “have an accident,” any guards implicated in negligence permitting such a death may face minimal consequences.”

Associated Press, US prisons director resigning after crises-filled tenure and scrutiny over his leadership (January 5, 2022)

Forbes, A Review of the Federal Prison In Atlanta Shows an Agency in Crisis (December 31, 2021)

BOP, BOP Director Announces Plans to Retire (January 5, 2022)

Morgantown Dominion-Post, Hazelton union concerned about mounting violence in prison (December 28, 2021)

Law and Crime, ‘She Is Running Out of Time’: Judge Orders Gender Confirmation Surgery Review for Federal Prison Inmate (December 28, 2021)

Iglesias v. Fed. Bureau of Prisons, 2021 U.S. Dist. LEXIS 245517 (S.D.Ill. Dec. 27, 2021)

Business Insider, Federal prosecutors quietly dropped their case against Jeffrey Epstein’s jail guards in the middle of Ghislaine Maxwell’s trial (December 30, 2021)

American Thinker, Coincidental or not, dropping criminal charges against Epstein’s prison guards sends a message to Ghislaine Maxwell the day after her conviction (January 1, 2022)

– Thomas L. Root

COVID Deja Vu… All Over Again – Update for January 4, 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.

JANUARY 2022’S KIND OF LIKE JANUARY 2021

deadcovid210914A year ago, the Bureau of Prisons was in the grip of a major COVID outbreak. How major? Back on New Year’s Day 2020, there were 6,831 sick inmates and 1,750 sick staff.

Things aren’t quite that bad right now, but as of last night, the number of sick inmates had increased 425% over the past two weeks, from 289 on December 20 to 1,516 currently. Sick staff increased 110% from 243 to 511. COVID is present at 94% of BOP facilities.

The percentage of vaccinated inmates inched up last week a half a point to 73.8%. Staff vaxxes still lag, up only 3/10th of a point to 69.1%.

Meanwhile, the nation is a hot mess. Last year, the country had 231,000 cases on New Year’s Day. Yesterday, there were 444,000.

A Fort Worth Star-Telegram story last Thursday reported on a December 16th FMC Fort Worth COVID death. The story noted that the inmate “is the 16th man to die from COVID-19 at FMC Fort Worth, according to BOP data. At the prison, ten incarcerated men and seven BOP staffers had confirmed COVID-19 cases as of Thursday… People incarcerated in prisons are at least 4.77 times more likely to be infected with COVID-19 than the general population, according to the Federal Public Community Defenders. At the federal women’s prison in Fort Worth, FMC Carswell, 70 women tested positive for COVID-19 as of Thursday and 22 BOP staff members had the virus. According to BOP data, FMC Carswell, — which is also a federal medical facility — had the 6th highest number of cases of all BOP facilities as of Thursday.”

Vaccinesticker211005In Connecticut, a female inmate at FCI Danbury has sued the BOP alleging that she was wrongly passed over for CARES Act home confinement because she cannot safely be vaccinated against COVID-19. 

Monique Brady, 46, contends in her December 16, 2021, complaint filed that she was wrongly passed over for home confinement even though she has underlying medical conditions that make her vulnerable to the disease. According to filings in Whitted v. Easter, the class-action litigation against FCI Danbury over COVID at the institution, which was settled largely in the inmates’ favor, Brady received one dose of vaccine but not the second. The institution’s medical staff advised her not to receive a second shot due to her reaction to the first one.

The BOP has previously told the Whitted v. Easter court that it would not consider home confinement for inmates who did not get fully vaccinated.

Brady claims she is at risk for COVID due to her taking prescribed steroids for a medical condition, obesity, a history of smoking, and high blood pressure. She asks the district court to issue an order that she be placed on CARES Act home confinement.
 

miracle181227The BOP continues to declare inmates recovered under its very liberal reading of CDC guidelines. Reality is not as forgiving. A research paper released last week reported that “Covid-19 can spread within days from the airways to the heart, brain and almost every organ system in the body, where it may persist for months.” In what Bloomberg described as the most comprehensive analysis to date of the SARS-CoV-2 virus’s distribution and persistence in the body and brain, scientists at the National Institutes of Health said they found the pathogen is capable of replicating in human cells well beyond the respiratory tract.”

The report pointed to delayed viral clearance as a potential contributor to the persistent symptoms wracking so-called long-haul COVID sufferers.

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

Connecticut Insider, Lawsuit: Unvaccinated woman convicted in $10M Ponzi scheme a ‘sitting duck’ for COVID at CT prison (January 3, 2022)

Bloomberg, Coronavirus Can Persist for Months After Traversing Body (December 26, 2021)

Daniel Chertow, et al., SARS-CoV-2 infection and persistence throughout the human body and brain (Nat’l Institutes of Health, December 20, 2021)

– Thomas L. Root

It’s Halftime for the 117th Congress, and Criminal Justice Reform Has Been Held Scoreless – Update for January 3, 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.

WELL, 2021 WAS KIND OF DISAPPOINTING…

NYDTypwrtr220103We all had high hopes for criminal justice reform when President Biden took the White House, and the Democrats won control of the House and Senate. The year 2021 was widely seen as the end of a dark era and the beginning of a brighter one. As Reason magazine said last week, it wasn’t just the close of just any year. It was the end of 2020.

Over the last 12 months, politicians h some steps to advance justice reform. But as is the case with so many New Year’s expectations, quite a bit also stayed the same.

Since Biden’s inauguration, criminal justice reform has taken a back seat to his more prominent initiatives, last March’s American Rescue Plan, the Infrastructure Investment and Jobs Act in November, and the now seemingly-dead Build Back Better social-spending blowout.

Biden did issue an executive order canceling contracts with private prison operators, a nice change for the 14,000 people in those joints. And his Dept, of Justice finally reinterpreted the CARES Act to let people on home confinement stay there. He has promised clemency reform. But the real work is to be done in Congress, w has yet to progress.

If you stayed awake in high school, you recall that every Congress lasts two years. Any bill introduced in the 117th Congress – which began in January 2021 – will stick around until the 117th expires a year from today. That means that the reform bills now in front of Congress still have a chance.

On New Year’s Day, the San Francisco Chronicle called for a targeted bill to abolish mandatory minimums, said, “The good news is that criminal justice reform can be accomplished with relatively limited expenditures — compared to, for example, Build Back Better’s sweeping expansion of the social safety net. That gives it a fighting chance of passing in today’s barely Democrat-controlled Congress.”

marijuana-dc211104

A couple of bills before Congress would reduce but not eliminate mandatory minimums: the EQUAL Act (lowers minimums for crack to equal those of powder) has passed the House but hasn’t yet cleared committee in the Senate; the MORE Act (decriminalizes marijuana retroactively) has been approved by a House committee but has not been passed by the House or Senate; the First Step Implementation Act (makes First Step mandatory minimum reductions retroactive) and the Smarter Sentencing Act (reduces mandatory minimum penalties for certain nonviolent drug offenses only) have not even cleared committee in either the House or Senate.

While the House also passed the MORE Act to decriminalize marijuana, the measure has been dead on arrival in the Senate, where Senate Majority Leader Chuck Schumer (D-New York) announced plans to draft his own version of the bill. The Schumer bill has been released as a working draft but has yet to be formally introduced.

In the House, Republican Rep. Nancy Mace (South Carolina) introduced the first GOP-sponsored bill in Congress to legalize marijuana, hinting that there may be openness to a bipartisan solution in the future. If the Democrats fail to take advantage of the political opportunity in front of them, Forbes said last week, they risk ceding this issue to the Republicans if and when they take back control of Congress, possibly as soon as next year.

When the SAFE Banking Act, a marijuana bill, passed the House last year, it got 106 Republican votes, demonstrating that the GOP can deliver votes on cannabis legislation. But the MORE Act that passed the House in the last Congress – the one with criminal retroactivity – received only five Republican votes. The current MORE Act has collected only one Republican co-sponsor.

cotton181219The problem is that most bills spend months in committee with no movement, or they pass in the House only to the Senate before dying out. And with mid-terms putting all of the House and a third of Senate up for re-election in November and crime rates shooting up, getting legislators on board for criminal justice reform is going to be more challenging.

And then there are demagogues like Sen. Tom Cotton (R-Arkansas). Last week, he wrote in Real Clear Politics:

Unfortunately, soft-on-crime policies have been, at times, a bipartisan problem. In 2018, Republicans passed the pro-criminal First Step Act. That deeply flawed legislation reduced sentences for crack dealers and granted early release to some child predators, carjackers, gang members, and bank robbers. Ironically, this jailbreak bill even provided early release for those who helped prisoners break out of jail. This misguided push by Republicans to win applause from liberals strengthened the hand of radicals like George Soros. In a political environment where the parties compete for who can be more pro-criminal, the Democrats will always win.

People like Cotton make even common-sense federal criminal justice reform a hard sell.

Reason, In 2021, Qualified Immunity Reform Died a Slow, Painful Death (December 30, 2021)

Forbes, The Least Eventful Year for Marijuana (December 31, 2021)

San Francisco Chronicle, Biden’s agenda is stuck. It doesn’t have to be that way with criminal justice reform (January 1, 2022)

S. 79: EQUAL Act

H.R. 3617, MORE Act

S. 1013: Smarter Sentencing Act of 2021

S. 1014: First Step Implementation Act of 2021

Brookings Institution, The numbers for drug reform in Congress don’t add up (December 22, 2021)

Real Clear Politics, Recall, Remove & Replace Every Last Soros Prosecutor (December 20, 2021)

– Thomas L. Root

Disparity Makes ‘Extraordinary and Compelling” Finding Unnecessary – Update for December 31, 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.

LEAVING SO SOON?

release161117Jayvon Keitt was charged with a drug conspiracy involving 280 grams of crack, but took a deal letting him plead to 28 grams instead. As a result his mandatory minimum fell to five years, although his Guidelines sentencing range remained 70-87 months. At sentencing, the judge varied downward to give Jayvon 60 months.

Naturally, Jayvon didn’t appeal, because the sentence couldn’t go any lower than it did. Instead, less than four months after the sentence was imposed, Jayvon filed a compassionate release motion under 18 USC § 3582(c)(1)(A)(1). Jayvon said his asthma raised his risks if he caught COVID, and thus was an extraordinary and compelling reason for sentence reduction. He argued that the “BOP’s restrictions to curb the spread of the coronavirus have led to harsh lockdowns, restrictions on movement between jails, and have all but eliminated educational and other program[m]ing opportunities,” making his ability to participate in drug treatment programs uncertain. For those reasons, Jayvon said, letting him out four months into a 60-month sentence would not offend the sentencing factors set out in 18 USC § 3553(a).

The district court denied Jayvon’s motion after considering those sentencing factors. The court held that Jayvon had sold a lot of drugs and had already gotten a real sentence break. First, the government agreed to cut the amount of drug involved in the case from 280 grams to 28 grams, dropping the mandatory minimum sentence in half (to five years). Then, the court sentenced him below his minimum Guideline range of 70 months. The district court concluded that letting him go after only four months would lead to a real sentencing disparity. The district court made no finding as to whether Brian’s health risks constituted “extraordinary and compelling circumstances.

releaseme211231Last week, the 2nd Circuit agreed that the district court had not abused its discretion in weighing the sentencing factors. As for Jayvon’s claim that the district court was obligated to make a finding on whether extraordinary and compelling circumstances justified his release, the Circuit said that “when a district court denies a defendant’s motion under § 3582(c)(1)(A) in sole reliance on the applicable § 3553(a) sentencing factors, it need not determine whether the defendant has shown extraordinary and compelling reasons that might (in other circumstances) justify a sentence reduction.”

United States v. Keitt, Case No 21-13-cr, 2021 U.S. App LEXIS 37888 (2d Cir., December 22, 2021)

– Thomas L. Root