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BOP Solves COVID Problem By Not Looking For It – Update for March 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.

BOP RUNS A REVERSE ON COVID TESTING


The BOP COVID numbers kept plummeting last week, ending the day yesterday with 783 sick inmates, down 46% in a week. But, strangely enough, staff COVID numbers remain stubbornly high at 1,569, nearly at the level of a week before. COVID is still in 126 BOP facilities.

reverse210309

For over 10 months, inmate COVID cases always exceeded staff cases, once by a factor of five. But on Feb 11, the number of staff cases passed the number of inmate cases for the first time. Last Friday, it was 100% higher.

This may be why: Last April, the BOP warned its increased inmate testing program would “increase the number of COVID-19 positive tests reflected on the BOP’s… public website.” Now, someone at Central Office has figured out that the obverse is equally true: less testing decreases the number of inmate COVID cases.

From Aug 1 through Feb 15, the BOP averaged 331 tests a day. But since Feb 15, the testing rate has fallen dramatically. Last week, the daily average was 44 tests a day. Yesterday, the BOP reported only 32 inmate tests in the entire system.

It’s not like the BOP has run out of people to test. Its own numbers show that about 45,000 inmates have never been tested. The current positivity rate of 44% – meaning that 44 out of 100 inmates tested had the virus – suggests about 20,000 undetected cases are still in the system.

covidtest200420The BOP does not control the staff COVID numbers: staffers get their own tests. So the inmate number, which the BOP controls, keeps falling. The staff number it does not control continues to reflect reality.

The BOP’s numbers last Friday showed that 41% of the staff have gotten the COVID vaccine, while only 8.4% of inmates have been inoculated. Only 72% of all BOP facilities report receiving the vaccine, with FCI Marianna having the highest percentage of inmates vaccinated, 53.5%, while three reporting facilities – Seatac, Miami, and Devens – report no inmates have taken the shot. A total of 2,233 inmates (1.5% of all inmates) were vaccinated last week.

The BOP told a Connecticut federal court last week (in a case involving FCI Danbury) that inmates who decline vaccinations without a documented medical reason will not be given further consideration for CARES Act home confinement. The BOP said it would consider home confinement for inmates who accept vaccinations, up until the time they are fully inoculated (usually two weeks after receiving the second dose).

return161227An article in The Regulatory Review argued the Dept of Justice’s January legal opinion that people in home confinement had to be recalled to federal prisons after the pandemic ended is flawed: “What the CARES Act limits to the covered emergency period is the Bureau Director’s authority to lengthen the permissible amount of time that people can spend in home confinement. Once a person’s home confinement period is properly lengthened by the Bureau — during the emergency, when the Bureau has the authority to do so — nothing in the law requires that someone’s period of home confinement must be shortened once the pandemic is over. The statute only limits when the Bureau of Prisons has authority to move people into home confinement for longer durations of their sentence.”

Finally, the Bureau of Prisons Reform Caucus, which started with a couple of congressmen last fall, has added to its membership and purpose. Now with at least eleven congressmen and women as members, the Caucus issued a series of statements last week on its purpose and plans. Caucus chair Fred Keller (R-Pennsylvania) said, “This pandemic has brought to light many failures in the BOP’s operations, including detrimental inmate transfer policies, staffing shortages, and agency retention issues. The various backgrounds and experiences of the members of this caucus will enable us to better tackle these issues on behalf of the American people.”

Press Release, BOP Expands COVID-19 Testing (Apr 24, 2020)

Associated Press, Inmates refuse inoculations in Connecticut federal prison (March 3, 2021)

The Regulatory Review, The Justice Department Should Preserve Home Confinement (March 1, 2021)

NorthCentralPA.com, Bureau of Prisons Reform Caucus releases series of statements on future plans, accountability (March 5, 2021)

– Thomas L. Root

Circuits Do Violence to ‘Attempted Violence’ – Update for March 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.

TWO CIRCUITS REFUSE TO “DAVIS” ATTEMPT CRIMES

It was a rough week for violent crime.

violent160620The Supreme Court’s 2019 United States v. Davis decision held that conspiracy to commit a violent crime was not itself a “crime of violence” that fell within the definition in 18 USC § 924(c). That is important, because a § 924(c) for using or carrying a gun during a crime of violence or drug offense carries a hefty mandatory sentence that by law is consecutive to the sentence for the underlying offense.  

Since Davis, a hot question facing courts has been whether a mere attempt to commit a violent crime should be lumped with conspiracy as inherently nonviolent.

Last Monday, the 2nd Circuit denied Kevin Collier’s post-conviction motion to throw out his § 924(c) in the wake of Davis, holding that his attempted bank robbery offense (18 USC §2113(a)) was indeed a crime of violence supporting his § 924(c) conviction.

In 2019, the Circuit held in United States v. Moore that § 2113(a) bank robbery was categorically a crime of violence under § 924(c)’s elements clause, and in United States v. Hendricks the Court found that Hobbs Act robbery and New York 3rd-degree robbery were crimes of violence as well. But Kevin argued he could be convicted of an attempt to rob a bank without ever getting to the point that he used force or threatened anyone and that it thus did not fall under § 924(c)’s elements clause. Driving up to the bank with a mask and a gun was enough to get him convicted, and that did not require he first commit any violent act.

violence180508The 2nd Circuit disagreed, noting that the crime of attempt requires that the defendant have intended to commit each of the elements of the substantive crime. A § 2113(a) conviction for attempted bank robbery requires that the defendant “by force and violence, or by intimidation… attempt[s] to take” the property at issue. Because Hendricks held that bank robbery by intimidation was a crime of violence, “a conviction for attempted bank robbery is a categorical match for a crime of violence under 924(c)’s elements clause, regardless of whether the substantial step taken involved the use of force.”

The 2nd declined to reach the question of whether all “attempts” to commit other crimes of violence would necessarily be considered “crimes of violence” under § 924(c), limiting its holding to attempted § 2113(a) bank robbery, which expressly requires that the attempt have been committed by force, violence, or intimidation. The Circuit admitted the question might be thornier if the statute of conviction did not clearly state that the elements of the attempt must include an act of force, violence, or intimidation.

The very next day, the 2nd Circuit issued an en banc opinion reversing a prior appellate decision that New York 1st-degree manslaughter was not a crime of violence. Gerald Scott was released in 2018 after serving 11 years of a 22-year Armed Career Criminal Act sentence when the district court held his prior manslaughter convictions were not crimes of violence. The district court reasoned that because someone can cause death by omission, manslaughter could be accomplished without employing any force or threat of force at all.

violence160110The en banc decision needed 50 pages to explain why New York 1st-degree manslaughter in New York qualifies as a crime of violence, and 70 more pages for the concurrences and dissents to debate what Ohio State law prof Doug Berman called “a formalistic legal matter that is an awful artifice of poorly conceived and constructed federal sentencing law.” In a nutshell, the majority, relying on the definition of physical force in Curtis Johnson v. United States, held that “1st-degree manslaughter is a categorically violent crime because its elements — (1) the causation of death (2) by a person intent on causing at least serious physical injury — necessarily involve the use of violent force.”

Finally, not to be outdone, last Friday a 3rd Circuit panel held that an attempt to commit a Hobbs Act robbery was categorically a crime of violence under the “elements” clause of 18 USC § 924(c). Defendant Marcus Walker argued that his conviction must be vacated because a person can be convicted of attempted Hobbs Act robbery based on nothing more than an intent to complete the robbery without actually committing a violent act and with only the intent to do so.

But the 3rd, in a decision that described in detail the circuit split on the issue, refused to follow the 4th Circuit’s United States v. Taylor ruling, and instead joined the 5th, 7th, 9th and 11th Circuits in holding tha it is “apparent that Congress meant for all attempted crimes of violence to be captured by the elements clause of § 924(c), and courts are not free to disregard that direction and hold otherwise.”

furball210308There is little doubt that this issue, and probably the whole “attempt” furball, is headed for the Supreme Court.

Collier v. United States, Case No 17-2402, 2021 U.S. App. LEXIS 5894 (2d Cir. Mar 1, 2021)

United States v. Scott, Case No 18-163-cr, 2021 U.S. App. LEXIS 6014 (2d Cir. Mar 2, 2021)

United States v. Walker, Case No 15-4062, 2021 U.S. App. LEXIS 6453 (3d Cir. Mar 5, 2021)

Lexology, Second Circuit Holds that Attempted Bank Robbery is Categorically a ‘Crime of Violence’ (March 4, 2021)

Sentencing Law and Policy: En banc Second Circuit needs 120 pages and five opinions to sort out whether NY first-degree manslaughter qualifies as a federal “violent crime” (March 2, 2021)

– Thomas L. Root

Aren’t We All Felons? – Update for March 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.

‘EVERYTHING’S BEEN CRIMINALIZED,’ SUPREME JUSTICE COMPLAINS

Respected observers of federal criminal jurisprudence have long criticized the over-criminalization of life. Most famously, long-time defense attorney Harvey Silverglate wrote his book Three Felonies a Day that

The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague.

felony210305During oral arguments last week in Lange v. California – California case holding in which the lower courts ruled that a police officer may always enter a suspect’s home without a warrant if the officer is in pursuit of the suspect and has probable cause to believe that the suspect has committed a misdemeanor – Supreme Court Justice Neil Gorsuch revealed refreshing skepticism of the criminal justice system that channeled Attorney Silverglate.

It is “settled,” California’s lawyer argued, “that officers may enter a home without a warrant if they have probable cause to believe a fleeing suspect has committed a felony.” Gorsuch countered, “We live in a world in which everything has been criminalized. And some professors have even opined that there’s not an American alive who hasn’t committed a felony in some—under some state law. And in a world like that, why doesn’t it make sense to retreat back to the original meaning of the 4th Amendment, which I’m going to oversimplify, but generally says that you get to go into a home without a warrant if the officer sees a violent action or something that’s likely to lead to imminent violence….Why isn’t that the right approach?”

Reason, ‘Everything Has Been Criminalized,’ Says Neil Gorsuch as He Pushes for Stronger Fourth Amendment Protections (February 25, 2021)

Library of Economics and Liberty, Three Felonies a Day? (January 5, 2019)

– Thomas L. Root

Last Week’s § 2255 Gleanings – Update for March 4, 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.

INMATES GO 2-2 ON § 2255 DECISIONS LAST WEEK

The Courts handed federal inmates two 28 USC § 2255 wins and two losses last week.

habeas191211For the uninitiated, habeas corpus (literally, a Latin imperative phrase to “produce the body”) has been around for about 806 years, give or take, ever since a band of angry noblemen forced King John to sign the Magna Carta (the “Great Charter of Liberties”) as an alternative to having his royal butt kicked.

One liberty the noblemen secured was the right not to be locked up without reason. The Magna Carta empowered courts to issue a writ (order) to a jailer to “produce the body” – that is, come to court with a particular prisoner and show why that prisoner’s detention is legal. Habeas corpus has become known as the “Great Writ,” so ingrained in English common law that our constitution simply assumes the right exists. The constitution only references habeas corpus in the negative, by denying the president the right to suspend the writ except in time of war.

Notwithstanding the constitutional origins of habeas corpus, Congress controls how prisoners may exercise their right to seek the writ in the federal courts by statute. For instance, 28 USC § 2244 regulates the filing of habeas corpus petitions for all claims of illegal detention for reasons other than a defect in the conviction or sentence. Section 2255 of Title 18 permits a federal prisoner to file a habeas corpus petition where the claim is that the conviction or sentence is contrary to law.

Every federal prisoner has the right to bring one § 2255 motion, subject to rather strict time limits. Bringing a second such petition is possible under very limited circumstances, with permission first being granted by the Court of Appeals.

Now for the week’s news:

violence181008(1) Dearnta Thomas pled guilty to a substantive RICO offense, and an 18 USC § 924(c) count for using a gun in furtherance of a crime of violence. The predicate “crime of violence” for the § 924 offense was aiding and abetting the commission of a VICAR offense (Violent Crimes in Aid of Racketeering Activity under 18 USC § 1959), those predicate violent crimes being two Virginia state-law offenses, a conviction for use or display of a firearm in committing a felony and another for “pointing, holding, or brandishing a firearm, air or gas-operated weapon or object similar in appearance.”

After the 2019 Supreme Court decision in United States v. Davis, Dearnta filed for permission under 28 USC § 2244 to bring a successive § 2255. Last week, the 4th Circuit held that Davis announced a new substantive rule of constitutional law retroactive to cases on collateral review by the Supreme Court and that Dearnta’s argument – that the state convictions were not crimes of violence within the meaning of Davis – stated a plausible claim.

(2) Meanwhile, Travis Harris asked the 5th Circuit for permission to file a successive § 2255 arguing that after Davis, his conviction for using a destructive device during a crime of violence (18 USC § 844(i)), should be thrown out, because the predicate offense – arson – was no longer a crime of violence.

The 5th agreed, holding – as the 4th Circuit has previously said – that Davis was retroactive and that Travis raised a plausible enough claim to go forward.

lawyerjoke180807(3) Things didn’t go so well for Kevin Kelley in the 1st Circuit. Kev figured he had a “gotcha:” it turned out the Assistant U.S. Attorney who had signed Kevin’s indictment had not paid his bar dues. Because F.R.Crim.P. 7(c)(1) says that an indictment “must be signed by” a government lawyer, and the AUSA’s law license had been suspended for nonpayment of dues, Kevin argued in his § 2255 motion that the bad signature invalidated the indictment and “robbed the district court of jurisdiction to proceed against him.”

Last week, the 1st Circuit rejected Kev’s technicality. “The Supreme Court, after all, has long viewed a government lawyer’s indictment signing as necessary only as evidence of the authenticity of the document,” the Circuit said, and Rule 7’s “intent is for common sense to prevail over technicalities.” Thus, the Circuit said, “it is unsurprising that many courts refuse to stamp ‘invalid’ an indictment signed by a prosecutor with bar-license problems if other evidence shows that the government was backing the prosecution — with some cases explicitly saying that in such a situation, the complaining party cannot prove prejudice.”

Here, the evidence showed the indictment had been approved by the AUSA’s superior, and that was good enough for common sense to prevail, the Court ruled, especially where Kevin could prove he was not harmed by the suspended AUSA working under a nonpayment suspension.

(4) Finally, Greg Olson got a target letter from the U.S. Attorney, telling him he would be indicted, but offering that he could get a lawyer and work out a preindictment deal. Greg and his lawyer worked out a 30-month plea to tax evasion, but the deal foundered when the government refused to provide any discovery. Greg got indicted, hired a different lawyer, but ended up with a 48-month sentence.

target210305Greg filed a § 2255 motion claiming his pre-indictment lawyer screwed up the plea deal. But last week, a 9th Circuit panel shot him down. Precedent in the circuit holds a defendant has no 6th Amendment right to effective counsel before he is a defendant, meaning that a three-judge panel cannot overrule the prior case. Of course, in such cases, if a three-judge panel thinks the precedent is nonsense, it can refer its case to the court en banc, but here, the Circuit said, “In determining whether this is an appropriate case to do so, we must assess whether Olson might prevail if current circuit precedent were to be overruled… The record does not support Olson’s claim that his counsel was ineffective. An en banc ruling would therefore not affect the result.”

In re Thomas, Case No 19-292, 2021 U.S. App. LEXIS 5316 (4th Cir. February 23, 2021)

In re Harris, Case No 19-51045, 2021 U.S. App. LEXIS 5719 (5th Cir. February 25, 2021)

Kelley v. United States, Case No 19-1932, 2021 U.S. App. LEXIS 5646 (1st Cir.  February 25, 2021)

United States v. Olson, Case No 19-16591, 2021 U.S. App. LEXIS 5027 (9th Cir.  February 22, 2021)

– Thomas L. Root

Ain’t No Way To Treat The Ladies – Update for March 2, 2021

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YOU THINK YOU HAVE IT BAD

freeze191004FMC Carswell, the system’s only woman’s medical center, avoided the power outages that affected Fort Worth and the rest of Texas in the recent winter storm. But the weather left the prison – and the 1,066 women confined there – without heat or hot water when the outside temperature fell to 5 degrees.

The inmates “are trapped in there with feces, with water up to their ankles. They do not have anywhere to defecate at. There’s no cleaning supplies. There’s no water made available,” Cynthia Simons, the women’s fellow at the Texas Criminal Justice Coalition, told Filter.

whoyabelieve201214Emery Nelson of the BOP’s public affairs division disputed the inmates’ complaints. “Inmates were given advance warning of the planned water shut-off and were provided additional water during the repair period, which lasted approximately four hours,” Nelson said in an email. “Please note, FMC Carswell did not experience a sewage leak and at no time was there sewage inside the housing unit,” he wrote.

Yup, those doggone women inmates made it all up, the parts about “being unable to flush the toilets, which quickly filled with feces and urine. Women defecated into trash bags, which began to pile up, but lacked running water to wash their hands,” as well as reports that women inmates were fishing feces from overflowing toilets with their hands.

The San Francisco Bay View reported, “seven hours after the water had stopped, prison staff allowed some of the women to walk to the prison’s hospital building with five-gallon buckets. At the hospital, which had not lost water, women filled the buckets with water, then schlepped them across the snow to the housing unit, and bucket-flushed the toilets. But, with over 500 women from both units using them, the toilets soon filled with human waste again.”

lies171106In case you’re pondering who to believe, this is the same BOP that denied any problems at MDC Brooklyn while inmates were freezing in the dark.  And (last June) that COVID was under control.  And that all employees were following CDC guidelines for wearing personal protective equipment… You don’t have to look too hard for examples. There’s kind of a trend.

San Francisco Bay View, Unprepared for COVID, Texas women’s prison was equally unprepared for Uri (February 27, 2021)

Filter magazine, In Texas Prisons, Horror Stories Emerge From Catastrophic Blackout (February 23, 2021)

Fort Worth Star-Telegram, Women, some sick with COVID-19, left ‘freezing’ without heat at Fort Worth medical prison (Februry 16, 2021)

– Thomas L. Root

CARES Act Extended, But Does the BOP ‘Cares’? – Update for March 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.

COVID AND CARES ACT HOME CONFINEMENT TO GO ON… FOR NOW

caresbear210104CARES Act Re-upped, As If the BOP Cares: The CARES Act, passed in March 2020, dumped truckloads of money on the coronavirus pandemic. More important that piles of dough (for our purposes, at least), Section 12003 authorized the Federal Bureau of Prisons to place inmates in home confinement as long as the nation is under a COVID emergency and the Attorney General has determined that the “emergency conditions will materially affect the functioning of the Bureau.” President Trump declared a COVID emergency under the National Emergencies Act a few weeks before CARES passed, and Attorney General William Barr made the materiality finding on April 4th.

Under the National Emergencies Act, an emergency only lasts a year unless the President extends it. That means the emergency would have ceased today, and with it, the CARES Act authority would expire.

Last week, President Biden extended the COVID emergency without specifying an end date (which is common). In essence, the COVID emergency will be over with Biden says it is. Biden wrote, “The COVID-19 pandemic continues to cause significant risk to the public health and safety of the Nation. More than 500,000 people in this Nation have perished from the disease, and it is essential to continue to combat and respond to COVID-19 with the full capacity and capability of the Federal Government.”

One could reasonably infer from the President’s statement that the “full capacity and capability” of the government would include continued BOP use of its CARES Act home confinement authority. Yet, as the New York Times observed last week in a scathing article about the BOP’s failure to use home confinement at FCI Danbury, “just 7,850 of the 151,735 people serving federal sentences right now have been granted home confinement — about 5%. State prison populations have fallen by 15% since the pandemic began, according to the Prison Policy Initiative, but not because inmates are being released to home confinement. Instead, many state prisons simply have stopped accepting transfers from county jails.”

The BOP website prefers to trumpet that “the total number of inmates placed in home confinement from March 26, 2020 to the present (including inmates who have completed service of their sentence) is 22,158.” But it turns out that most of those people were placed there in normal course by halfway houses or under elderly offender home detention. The CARES Act home confinees have not constituted much more than a dribble.

home210218The Times reported that “Danbury was singled out for prompt action” by Barr last April, “because it had seen an outbreak, [but] only about 100 inmates have been granted home confinement so far, many as recently as December. At least 550 are still under consideration, most of them convicted of nonviolent offenses like fraud or drug possession.”

It’s not like the problem is limited to Danbury, either. A California federal court found last summer that “[d]espite… the existence of emergency conditions facing the BOP as the result of the pandemic… there is no evidence Respondents are prioritizing their use of statutory authority under the CARES Act to grant home confinement to Lompoc inmates… or giving due consideration to inmates’ age or medical conditions in evaluating eligibility of home confinement.” And a New York federal court found that “rather than attempt to use home confinement, furloughs, and compassionate release as tools to reduce the density among the most vulnerable inmates, the prison chose to not pursue that path at all until well after the initial outbreak had subsided.”

In fact, at Danbury, the BOP settled a class action lawsuit by promising to expedite release of inmates to home confinement. But five months after the BOP and Danbury warden made the deal, a Connecticut federal court found they had “breached the provision of the Settlement Agreement requiring that they ‘endeavor to release individuals approved for home confinement to home confinement within 14 days of the approval decision.”

About 48,000 of the 105,000 inmates the BOP has tested (still, a year later, only 69% of its inmates have had the nose swab) have contracted COVID. This is despite the BOP’s self-lauded “multiphase action plan” to protect inmates and staff from COVID-19. A Pennsylvania federal court dryly observed that “[t]he government’s assurances that the BOP’s ‘extraordinary actions’ can protect inmates ring hollow given that these measures have already failed to prevent transmission of the disease.” The agency’s slow-walk implementation of CARES Act placement cases seems to be cut from the same cloth.

The COVID Curve: The BOP continued last week to report fewer COVID cases. Last Friday’s total of 1,414 was down 29% from the week before. Staff cases remain stubbornly high, 1,622 (down only 3% from the week before). COVID remains present at 128 facilities, up two from last week, but there have been no reported deaths in the last 7 days.

As of Friday, the BOP reported vaccination data for 78 facilities. It reports that about 34% of its 36,000 staff have been vaccinated, and 6.9% of inmates have gotten the shot (up from 5.3% last week). The number of vaccine doses the BOP says it has distributed suddenly froze last week at 58,300, after climbing steadily since January. This suggests the BOP is out of additional doses until it gets its next distribution.

comparison210228

Plotting the rise and fall in inmate COVID numbers against the national ebb and flow shows the graphs are nearly a perfect fit. This is troubling, because late last week, Dr. Rochelle Walensky, director of the U.S. Centers for Disease Control and Prevention warned that with relaxing restrictions and a spread of variant viruses, the declines since January “may be stalling, potentially leveling off at still a very high number. We at CDC consider this a very concerning shift in the trajectory.” The nation had an average of about 66,350 new daily coronavirus cases a day over the last week, higher than the week before which was 64,000 new cases a day.

If national numbers rise again, history suggests the BOP numbers will, too.

Equally troubling is the fact that BOP staff COVID cases have not shown the kinds of decline that inmate and national numbers have. Beyond that, it has taken the BOP over two months to get a mere one-third of its staff vaccinated. The likelihood that staff is the primary vector for spreading COVID inside facilities thus remains high.

Federal Register, Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic (86 FR 11599, Feb 26, 2021)

CARES Act (Mar 26, 2020)

New York Times, Vulnerable Inmates Left in Prison as Covid Rages (Feb 27, 2021)

Torres v. Milusnic, 472 F.Supp.3d 713 (C.D. Cal. July 14, 2020)

Fernandez-Rodriguez v. Licon-Vitale, 470 F.Supp.3d 323 (S.D.N.Y. July 2, 2020)

Whitted v. Easter, Case No. 3:20-cv-569 (D.Conn. December 11, 2020), 2020 U.S. Dist. LEXIS 232843

Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) (Cole, C.J., dissenting).

United States v. Rodriguez, 451 F.Supp.3d 392 (E.D. Pa. 2020).

Los Angeles Times, New fears of next coronavirus wave as case declines slow and variants grow (February 27, 2020)

– Thomas L. Root

Inmate Wins (Sort of) Earned-Time Suit Against BOP – Update for February 26, 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.

IT LOOKS LIKE A VICTORY, BUT NOT MUCH OF ONE…

slowwalking210226One of the marquee features of the First Step Act is an earned time provision that permits non-excluded federal inmates (and there’s a long list of who’s excluded, from people with gun and violence charges to sex offenders to some kinds of drug dealers) to earn credits that will reduce their sentence lengths or get them more halfway house or home confinement.

The plain terms of First Step said that qualifying programs completed after the Act’s passage would be counted. But ever since First Step passed, the Bureau of Prisons has done its institutional best to slow-walk implementation of the terms.  First, it took nearly every day of the two years it was given by the statute to adopt a recidivism and needs assessment system that would classify inmates according to their risk of recidivism. Then, although the BOP is a system in which virtually no inmate works an 8-hour day, the BOP decided that a day of programming (for purposes of earned-time credits awarded in blocks of 10 or 15 days for every 30 days of programming) should constitute a full eight hours. This meant that an intensive 9- or 10-month drug program that in all devoted 500 hours to the classroom would yield a paltry 62.5 days of programming credit, which would be two 30-day blocks, which would award an inmate 20 to 30 days off a sentence that, on average, would be 10 years long.

jailhouselaw160809The BOP’s latest indignity seems to be an institutional position that none can start earning credit until after January 15, 2022, because the earned-time system is to be phased in over two years, and the two years started January 15, 2020.  Late last summer, an inmate at FCI Fort Dix won a habeas corpus action against the BOP authorizing him to get credit for programs completed since First Step was enacted in 2018. Ever since that decision, Goodman v. Ortiz, was handed down, suing the BOP for earned time credits for completed programs has become a cottage industry at various institutions. In South Dakota (where there isn’t a lot else to do in the winter, even when you aren’t locked down for COVID), there are something like 34 habeas corpus suits pending demanding earned time credit.

The inmate winner in a recent decision from the same judge who wrote Goodman v Ortiz called his victory to my attention last week. It is not quite the triumph one might think it is.

Jeremy Hare filed a habeas action under 28 USC § 2241 against his warden, demanding a shortened sentence or other benefit for having completed programs since the passage of the First Step Act. The government, predictably enough, argued that Jeremy could not get credit for any program completed before January 15, 2020 (although to its credit, the US Attorney was unwilling to adopt the BOP’s position that no credits would be awarded until 2022). But the government did take the untenable position that the First Step Act was not really “enacted” until the BOP said it was, a position the Court dispatched handily:

Enactment means “the action or process of making into law.” ENACTMENT, Black’s Law Dictionary (11th ed. 2019).  The FSA was enacted on December 21, 2018, and nothing in subchapter D indicates a different effective date for the subchapter… Thus, 18 U.S.C. § 3632(d)(4)(B)(i) unambiguously directs that “[a] prisoner may not earn time credits… for an evidence-based recidivism reduction program that the prisoner successfully completed… prior to” December 21, 2018… There is no ambiguity here. As a result, if Petitioner successfully completed an EBRR [Evidence-Based Recidivism Reduction] program or PA [Productive Activity] pursuant to the FSA on or after December 21, 2018, he is entitled to earn Time Credits.

The District Court thus agreed with Jeremy that he was entitled to credit for programs completed after “enactment” of the First Step Act, regardless of how long it may have taken the BOP to actually adopt PATTERN.

humpty210226But that was the high-water mark for Jeremy. The Court ruled that Jeremy could only get credit for programs that addressed needs BOP staff had already identified for him. That could include substance abuse, basic education and whatever else may have been listed in his Program Review by BOP staff. That holding dramatically limited the courses he might otherwise get credit for, because before January 15, 2021, the staff did not routinely make such determinations.

But what really limited the reach of Jeremy’s win was the Court’s conclusion that the BOP calculation that one program day should equal eight full hours of programming was a reasonable one. Jeremy wanted credit for any day on which he might have attended a program, even if that program only lasted an hour. The court found the BOP’s calculation that a “program day” should be 8 hours long was completely reasonable.

The most liberal read of this decision is that inmates might get some credit for programs completed since December 21, 2018, but they will have to jump through plenty of hoops first, and the amount of credit they get may be slight.

Hare v, Ortiz, Case No 20-14093, 2021 US Dist LEXIS 21270 (DNJ Feb 4, 2021)

– Thomas L. Root

BOP COVID Cases Looking for Bottom, But Vaccinations Lag – Update for February 25, 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.

BOTTOM FOUND IN COVID CASES?

COVIDvaccine201221The BOP may have bottomed out on inmate COVID cases. Yesterday’s total of 1,526 was down 13% from the week before. Staff cases notched down from 1,683 to 1,657 by midweek, only to climb again to 1,661. COVID remains present at 128 facilities, with a questionable total of 236 deaths (recall how three dead federal prisoners in private facilities miraculously came back to life a few weeks ago).

As of yesterday, the BOP reported vaccination data for 75 facilities, about 59% of its locations. It reports that about 32% of its 36,000 employees have been vaccinated, a slight increase from two weeks before, when it reported 28% had taken the shot. The number of inmates getting vaccinated – only 4.6% of the population two weeks ago – has inched upward to 6.1% as of yesterday.

The slow pace in vaccinations (about 2,500 staff and inmates in one week) suggests that the agency is short of vaccine until the next round is distributed. When that will happen has not been announced. The BOP has even left the Centers for Disease Control and Prevention in the dark: FEDWeek reported last Tuesday that “CDC data show that the Bureau of Prisons has administered both needed doses to some 17,000 persons and the initial dose to another 13,000, but that does not break out how many of those have gone to its employees vs. prisoners.”

numbers180327The CDC numbers vary widely from the totals shown on the BOP website, but that’s hardly surprising. Numbers on one page of the website (allegedly over 53,000 doses administered) vary dramatically from numbers broken out by institution (20,712 total inoculations). Head-scratching, to be sure.

Huffpost last week picked up on what I have been reporting since last summer, how the BOP has declared inmates to be “recovered,” only to have them then die. Huffpost reported on Joseph Fultz, a Terre Haute inmate who contracted COVID last month:

Then, exactly 14 days later, the BOP added him to the ‘recovered’ column,” Huffpost reported. “But Fultz, a 52-year-old man with a serious heart condition and epilepsy, had not recovered. On Feb. 8, a month to the day after his arrival in Terre Haute, he died of COVID-19-related illness, his unresponsive body discovered in his cell. Fultz’s death illustrates the incomplete and often misleading nature of COVID-19 data released by correctional facilities, and underscores how little we understand about the damage the virus is wreaking behind bars.

The CDC announced last week that seven domestic variants of the COVID virus have been identified, as well as the three foreign variants from UK, Brazil and South Africa already found. Michael Osterhelm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota, told CBS News, “The next 14 weeks I think will be the worst of the pandemic. People don’t want to hear that. But if we look at what these variants are doing, particularly this one from the United Kingdom, and see what it did in Europe, see what it’s done in the Middle East –it’s now beginning to start that here in the United States – we are going to see that unfold.”

On Saturday, FCC Coleman reported 119 COVID cases just among staff, according to local press reports. Coleman reported that 62% of its allotted vaccine went to inmates, suggesting that a majority of staff refused inoculation.

plagueB200406Perhaps nowhere were conditions more wretched last week that at FMC Carswell, the BOP’s only female medical facility. While Carswell retained electricity, the heat never kicked on and only cold water was available from Sunday to Monday evening, the Ft. Worth Star-Telegram reported. As of Tuesday, 31 women officially still had COVID-19,” the paper said, “although many more were still sick from the virus, family members and women at the prison said.”

FEDWeek, Concerns Remain about Pace of Vaccinations for Federal Employees (February 16, 2021)

Huffpost, He Got COVID In Prison. The Government Said He Was ‘Recovered.’ Then He Died. (February 19, 2021)

CBS News, Epidemiologist on new CDC school guidelines, COVID-19 variants and vaccine (February 15, 2021)

Villages-News, 20 more local COVID-19 deaths as outbreak hits staff at Coleman federal prison (February 20, 2021)

Ft. Worth Star Telegram, Women, some sick with COVID-19, left ‘freezing’ without heat at Fort Worth medical prison (February 16, 2021)

– Thomas L. Root

A Day to Beat Up Lawyers – Update for February 23, 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.

LAWYERS BEHAVING BADLY

Today, we feature a pair of cases in which lawyers are the stars, and not in a good way:

banana210223I Feel Conflicted: When Eric Scurry arrived for day 1 of his drug trial, his lawyer – Chris Davis – was missing. It seemed Chris had a hearing in another courtroom, and that one was more important to him than Eric’s was. This is not a development calculated to give a client a warm, fuzzy feeling about his attorney, the notion that his or her freedom was playing second banana to a client who had paid more for the lawyer’s services.

But not to fear, Eric! Chris’s wife, Mary, was also a lawyer, and Chris – who cared about Eric’s case very much – dispatched her to cover the trial. No matter (as it turned out later) that Mary had not read the file and knew nothing about Eric’s case. She was a warm body with a law degree, just what a guy facing decades in prison needed.

Had Mary read the file, she would have been aware that Eric and his co-defendants previously had attacked the wiretap that led to their arrest for a technical deficiency, albeit a glaring one. The district court denied their motion to suppress the evidence, but the issue their joint motion raised was a substantial one.

Everyone on the defense side of the table knew that… except for Mary. She convinced Eric to take a plea deal for a minimum 10 years, reserving only the right to appeal one inconsequential pretrial holding. The co-defendants also pled, but their attorneys reserved the right to appeal the wiretap suppression.

jailfree140410That turned out to be a good deal for Eric’s co-defendants. They appealed and won. The Court of Appeals held the government’s wiretap application to be deficient, and all of the evidence against them was suppressed. The co-defendants walked free. But Eric did not, because his plea deal did not reserve the right to raise that issue.

Eric seemed to recognize that Mary had screwed up, because on appeal, he had the Davises thrown off his case. He told the court he planned to accuse them later of incompetence. That made sense. But what happened next did not.

Inexplicably, when Eric filed a post-conviction motion under 28 USC § 2255 seeking to set aside his guilty plea, Mary offered to represent him on the motion, and he agreed. She then amended the § 2255 motion, claiming Eric had been coerced into pleading guilty by the evidence that had later been thrown out in his co-defendants’ cases, thus giving him the same level of professional representation on his § 2255 that she had given him at trial: lousy.

The problem was simple: to set aside his guilty plea and plea deal, Eric was required to show not just that his perception of the admissibility of the evidence was wrong, but that his lawyer had given him incompetent representation. Which of course Mary had. But because Mary failed to argue her own incompetence during the § 2255, the court denied Eric relief.

conflict200318Last week, the D.C. Circuit threw Mary (and, for good measure, Chris) off the case again. The problem is, the Circuit said, “as long as counsel’s advice to take the plea rather than gamble on an evidentiary suppression issue was “reasonably competent,” the plea is “not open to attack on the ground that counsel may have misjudged the admissibility of the defendant’s confession.” That being the case, Eric could not win his § 2255 unless he showed Mary has given him incompetent advice. And that, as I noted, meant Mary would have to argue that she was incompetent.

The Circuit ruled that “by affirmatively intervening in Scurry’s collateral proceedings despite the conflict and not pressing the ineffective assistance claim, Davis seemingly made a choice advancing her own interest at the expense of her client’s.”

Eric will get another shot at relief, this time – we trust – with a competent lawyer.

usmale210223I’m A U.S. Male: Elvis warned that you shouldn’t “tamper with the property of the U.S. Mail (or maybe ‘male’)”. Last week, Sixth Circuit said you can’t use the U.S. mail to tamper with statutory deadlines, either.

Blake Cretacci hired a lawyer to file a 42 USC § 1983 action for damages against some local jail guards who allegedly used excessive force against him and . Blake hired a local lawyer by the unlikely name of Andy Justice, who prepared the complaint. Andy planned to file the federal court complaint electronically, as attorney members of the bar of the court are allowed to do. But on the night before the statute of limitations expired on Blake’s claim, Andy discovered that Coffee County, Tennessee, where the conduct occurred, was not in the Middle District of Tennessee, where Andy was admitted, but instead in the Eastern District of Tennessee, where Andy was not admitted.

The next day, Andy tried to get admitted to the Eastern District so he could electronically file the complaint, but that could not be accomplished in only a day. Andy drove to a federal courthouse in Winchester, Tennessee, to try to file the complaint in person, but there was no staffed clerk’s office there. By then, Andy could not get to the Chattanooga federal courthouse in time, but he had an idea.

The “prison mailbox rule,” enshrined in Houston v. Lack, holds that if an inmate files a document with a federal court by mailing it from the prison, the filing is deemed to be delivered to the courthouse the moment the inmate turns it over to a prison official. Andy, being a bright lawyer, knew this, so he ran the complaint over to Blake at the jail.

Andy told Blake that he should deliver it to a correctional officer immediately, explaining that because he was an inmate, he could take advantage of the prison mailbox rule. Blake did so.

dogmail210223Last week, the 6th Circuit threw out Blake’s complaint as untimely. The Circuit ruled that “the prison mailbox rule was created to prevent pro se prisoners from being penalized by any delays in filing caused by the prison mail system. But if a prisoner does not need to use the prison mail system, and instead relies on counsel to file a pleading on his or her behalf, the prison is no longer responsible for any delays and the rationale of the prison mailbox rule does not apply… Accordingly, we hold that, in the context of the filing of civil complaints, the prison mailbox rule applies only to prisoners who are not represented by counsel and are proceeding pro se.”

Nice try, Andy, but you can’t use the U.S. mail to tamper with court deadlines. Elvis could have told you that.

United States v. Scurry, Case No 18-3067, 2021 U.S.App. LEXIS 4785 (D.C. Cir.  Feb 19, 2021)

Cretacci v. Call, Case No 20-5669, 2021 U.S.App. LEXIS 4493 (6th Cir. Feb 17, 2021)

– Thomas L. Root

$timulus Bill Is Cash-Rich But Justice-Poor – Update for February 22, 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.

IT’S ALL ABOUT THE BENJAMINS

benjamins210222The House of Representatives finally released the text of the new stimulus package last Thursday, the 591-page American Rescue Plan, which includes billions of dollars for vaccine, unemployment benefits, state coffers, small businesses and stimulus checks, not to mention a grab-bag of special interest goodies like $15.00 an hour for the kid assembling sandwiches at the neighborhood McDonalds.

The American Rescue Plan contains something for almost everyone. Almost. For federal prisoners, the bad news is this: unlike the CARES Act (adopted 11 months ago) and the HEROES Act (a House measure last May that never passed the Senate), the American Rescue Plan contains nothing easing compassionate release, fixing the elderly offender home detention plan, or addressing any other criminal justice program.

The good news: inmates will be eligible for the $1,400 stimulus payment, just as they were eligible for the prior $1,200 and $600 payments.

[How to get stimulus payments, old and new]

The reasons that the ARP left out in a criminal justice measures are complex. Primarily, it is because Congress wanted to move rapidly, and the Democrats are pushing hard for Republican support in the evenly divided Senate. The New York Times reports that the House may pass the ARP this week, and the goal is to have President Biden sign the bill by March 14 (when existing federal unemployment money runs out). ARP is all about money, and sponsors want to keep it that way, because as a money bill, ARP has broad public support.

The Biden administration clearly plans some sort of comprehensive criminal justice reform this year. At a townhall meeting in Milwaukee last week, Biden said, “No one should go to jail for the use of a drug. They should go to drug rehabilitation.” The sentencing system should be changed to one that focuses on making sure that there are rehabilitation plans for inmates more generally, Biden said, adding that prison systems should have access to vocational programs that help those behind bars learn the career skills they need to succeed outside of prison.”

booker210222Meanwhile, Sen. Cory Booker (D-New Jersey) has been picked to chair the Senate Judiciary Committee’s Subcommittee on Criminal Justice and Counterterrorism. The subcommittee’s jurisdiction includes the Dept of Justice Criminal Division; the Drug Enforcement Administration, Bureau of Prisons, Sentencing Commission, and other law enforcement agencies.

This is significant, because a subcommittee chairman controls the subcommittee’s agenda, and can bring substantial pressure – even without writing legislation – on the agencies it oversees. “Our nation’s broken criminal justice system is a stain on the soul of our country, the result of decades of failed policies that have broken apart families and communities and have not made us safer,” Booker said. “I look forward to continuing and strengthening my partnership with Chairman Durbin [Sen Richard Durbin (D-Illinois), chair of the Senate Judiciary Committee] to further advance reforms to our policing and criminal justice system.”

letter161227Finally, interest groups finally have sympathetic ears in Congress and at DOJ. In an open letter to the not-yet-confirmed Attorney General, Merrick Garland, the ACLU urged him “to make clear, on-the-record commitments on five critical issues: mass incarceration; policing; COVID-19 in federal detention; the death penalty; and solitary confinement.” The ACLU asked that the “Trump DOJ’s efforts to thwart Congressional intent behind the FIRST STEP Act of 2018 should also be reversed: DOJ should support application of the Act’s reduced penalties at all sentencings, including resentencings in cases where an illegal sentence was vacated.”

HR -____, American Rescue Plan (reported to the House), Feb 18, 2021

New York Times, Republicans Struggle to Derail Increasingly Popular Stimulus Package (February 19, 2021)

Washington Examiner, Biden: ‘No one should go to jail for the use of a drug’ (February 16, 2021)

NJInsider, Booker to Chair Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism (February 14, 2021)

ACLU, Open Letter to Merrick Garland (February 18, 2021)

– Thomas L. Root