All posts by lisa-legalinfo

You’re Not Sick If We Say You’re Not Sick – Update for August 17, 2020

Leave a comment

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

MIRACLE RECOVERIES SEEM TO FLATTEN OUT AS CRITICS TAKE AIM AT BOP AND MARSHALS

The Federal Bureau of Prisons COVID-19 numbers fell 9% last week, but that statistic is only part of the story.

After bottoming out at 1,272 on Tuesday, the number of active inmate coronavirus cases climbed back into the 1,300s, where they stayed all week. Last night, the number was 1,356. What’s more, BOP staffers with COVID-19 stands at 570, virtually the same as the 571 sick staffers a week ago. The number of BOP facilities with active cases fell slightly from 114 to 111. Deaths, unsurprisingly, rose from 116 to 118 (this number, like the number of inmate cases, includes federal prisoners in private prisons as well).

InmateCOVID200817

Since March, the BOP has administered 45,702 tests. If this were one test per inmate, the agency would have completed tests on 29% of its population (but there’s no assurance some people have not been tested multiple times). The BOP is still finding an infection rate among inmates to be 26%.

What the stats show is that the BOP has exhausted its supply of infected inmates it can now miraculously declared to be cured because of a lapse of 10 days from the date the positive test came back. Once again, it appears that the Bureau is finding new cases as fast as it can write off old one.

At the same time, the number of sick staffers is stubbornly refused to fall, and remains nearly double a month ago and three times the level in mid-June. Likewise, the number of institutions where the virus is present is not budging.

transfer200817These Transfers Are Killing Me: Nevertheless, Phase Nine is now in place, and the BOP is seeing inmate transfers and admissions once again. Meanwhile, VICE News published a lengthy article last week alleging that continued US Marshal Service transfer of prisoners during the pandemic was responsible for much of the spread of COVID-19 throughout the BOP. According to VICE News, whistleblower complaints it had obtained alleged “federal prisoners infected with the coronavirus have been shipped as far as Puerto Rico in recent weeks, and to federal lock-ups in Alabama and Florida. BOP employees say prisoners have also tested positive after being shuffled around to facilities in Colorado, Illinois, Texas, Oklahoma, Pennsylvania, and Louisiana.”

VICE News quoted Anthony Koeppel, a BOP union local official at FCI Pollock, as saying, “It’s putting staff at risk, it’s putting inmates at risk, and it’s putting the community at risk. We’re talking about lives here. This is an extremely dangerous situation.”

The Marshals say they aren’t required to do any testing because “an agreement was made” that the BOP would handle tests and quarantines once prisoners are transferred into its lock-ups.

VICE News said BOP staff and prisoners have blamed transfers for helping the COVID-19 “wreak havoc across the BOP, killing 111 prisoners and at least one staff member, and infecting over 10,000 prisoners and 1,200 workers… The agency officially halted most movement of prisoners in March in an effort to limit the spread of the virus; when it does transfer prisoners itself, it requires them to undergo coronavirus testing and a 14-day quarantine before and after being moved. But the Marshals don’t abide by those rules — and they keep moving people. While transfers have slowed — down 76% from April to July compared to the same period last year, according to the Marshals — they never truly stopped.”

herd200817Prisons and Herd Immunity:  The Los Angeles Times noted last week that the prison experience with COVID-19 at San Quentin State Prison north of San Francisco suggests that herd immunity would come with substantial cost. “Herd immunity” is the idea is that eventually, a sufficient percentage of the population will have survived COVID-19 and become immune, which in turn protects the rest of the uninfected population by interrupting the spread of the virus.

“COVID-19 spread unchecked across California’s oldest prison,” the Times reported, “in ways that stunned public health experts, despite efforts to control the disease. As of Monday, there had been more than 2,200 cases and 25 deaths, among a population of more than 3,260 people.”

Expert Questions BOP “Recovered” Declarations: The BOP has experienced its own “San Quentins,” the latest arguably being FCI Seagoville, Texas, where 77% of the 1,746 inmates had COVID-19. As of Sunday night, only 35 inmates reportedly had active cases.

But Dr. Homer Venters – an epidemiologist investigating COVID-19 in the BOP – is skeptical. “People that tested positive, let’s say three, four weeks ago, may be considered recovered or not part of active cases,” Venters told KXAS-TV. “When you kind of wave a wand over people and say they’re recovered, my experience going into jails and prisons is many of them are not actually recovered. Many of them have new shortness of breath, chest pain, ringing in the ears, headaches. Other very serious symptoms.”

Serious Long-Term Effects: Another recent concern has arisen over long-term heart damage among younger people who contract COVID-19. Experts have linked coronavirus to development of a condition called viral myocarditis, which is a weakening of the general heart muscle.

COVIDheart200720“That is happening upwards of 50% of the people who are hospitalized with COVID will end up with some kind of cardiac damage. Some more severe than others,” Dr. Scott Miscovich, a Honolulu COVID specialist, said. “When you have that much damage to your heart muscles, not only are you going to be short of breath walking to a chair to the bathroom, you’re probably only going to survive five years.”

VICE News, ‘Con Air’ Is Spreading COVID-19 All Over the U.S. Prison System (August 13)

Los Angeles Times, San Quentin’s coronavirus outbreak shows why ‘herd immunity’ could mean disaster (August 11)

KXAS-TV, Seagoville Federal Prison COVID-Cases Fall Drastically, Expert Warns Against New Data as Family Mourns Loss (August 14)

KHON-TV, Hawaii COVID-19 expert concerned about heart damage for young people (August 10)

– Thomas L. Root

Chance and Death at the BOP – Update for August 14, 2020

Leave a comment

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

COMPASSIONATE CRAPSHOOT

dice161221A BuzzFeed News review of more than 50 cases seeking an 18 USC § 3582(c)(1)(A) “compassionate release” sentence reduction by federal inmates shows that with little legal precedent to guide courts in deciding the flood of release motions during a pandemic, decisions about who gets out of prison and who does not can appear arbitrary. That’s probably because they are.

Prisoner advocates and defense lawyers say these cases can come down to the luck of the draw, with some judges proving to be more sympathetic than others. Judges are making medical assessments about how much of a threat COVID-19 poses to an individual inmate and then deciding how to balance that against the public safety risk of sending that person back into the community. And judges are reaching different conclusions about how to measure an inmate’s risk of exposure in state and federal prisons, which have seen some of the worst clusters of COVID-19 cases nationwide.

In some denials, judges relied on the fact that there weren’t any COVID-19 cases at a particular prison, but sometimes that wasn’t a barrier. Some judges insisted inmates have served at least half of their sentence. Nearly all judges required proof of a specific medical condition.

compassion160208

Not only are the standards being applied by district courts grossly inconsistent across the 673 active federal district judges. The BOP has added to the chaos as well. Twenty-five inmates have died in its custody this year while their requests for sentence reduction were under consideration, including 18 since March 1, around the time the coronavirus began spreading in U.S. communities. In the 50 July cases examined by Buzzfeed, the BOP opposed or failed to respond to 38 compassionate release requests that the courts denied. The Bureau also opposed 10 releases that courts eventually granted. Only in two cases did the agency agree to a release before a court intervened.

More than one inmate has died of COVID-19 after being denied compassionate release by the BOP. Perhaps the latest was Saferia Johnson, coldly described as “inmate” – along with her crime of conviction – by the BOP media machine (more interested in making the agency look good in a bad situation than in compassionately reporting the death of a mother of two young boys). Saferia died of the virus after the BOP denied her compassionate release (not that the BOP press release would note that). She was serving 46 months for a fairly plain-vanilla white-collar embezzlement offense at Coleman.

“Now I have to bury my daughter and figure out how to raise these kids,” Ms. Johnson’s mother, Tressa Clements, told the Miami Herald. Clements said she and other family members told Johnson’s boys — Kyrei, 7, and Josiah, 4 — Monday that their mother isn’t coming home.

“We told them that God wanted her as an angel with him,” she said. “But she will always be in their lives and be their guardian angel.”

fault200814Incidentally, the BOP death count inched up to 117 yesterday (112 in BOP custody, five federal inmates in private prisons) with virtually all of the deceased “memorialized” by BOP press releases.

Forget that de mortuis nil nisi bonum nonsense. The BOP is much more into speaking ill of the deceased, who after all was an inmate more than a person, and interring any good with his or her bones. The BOP press release obituary (written formulaically by some BOP press office minion), is intended to let the world know that (1) it really wasn’t the BOP’s fault, because the agency did everything it could to save the victim, (2) it really wasn’t the BOP’s fault, because the victim had all of these unidentified “long-term, pre-existing medical conditions,” and, of course, (3) the dead inmate was a scumbag who was serving a sentence for doing truly horrible things, so – in the scheme of things – the death is not that lamentable, except for the fact it may make the BOP look bad unfairly.

compassionaterelease190517It’s worthwhile that we are reminded, once in awhile, that the “inmate” described as “a 36-year-old female who was sentenced in the Middle District of Georgia to a 46-month sentence for Conspiracy to Steal and Embezzle Public Money and Aggravated Identity Theft” was a mom leaving behind a second-grader and a preschooler.

The None of us is as good as our finest moment, nor as bad as our worst. And few of us have a heart as cold as a BOP obituary.

Buzzfeed News, “I Had Hit The Lottery”: Inmates Desperate To Get Out Of Prisons Hit Hard By The Coronavirus Are Racing To Court (August 8, 2020)

Washington Post, Frail inmates could be sent home to prevent the spread of covid-19. Instead, some are dying in federal prisons. (August 3, 2020)

Miami Herald, Woman asked for compassionate release. The prison refused. She just died of COVID-19 (August 6, 2020)

– Thomas L. Root

Known By The Company You Keep – Update for August 13, 2020

Leave a comment

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

7TH CIRCUIT LIMITS 18 USC 2251 CHILD PORN PRODUCTION STATUTE

pervert160728Section 2251 of Title 18 is a federal child pornography statute. The statute mandates a minimum 15-year prison term for “[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in … any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” So, it stands to reason, after reading anything about it – even a federal appellate court decision – may make you feel as though you should wash your hands (and not merely as a COVID-19 preventative).

It seems that Matthew Howard made some rather disturbing videos of himself next to his sleeping 9-year old niece while associating online with like-minded perverts. Matt recorded himself in some disgusting chat session, and then – while his buddies were watching (and Matt was recording) – he engaged in, shall we say, onanism or – as the Victorians like to say – an act of self-abuse. The child, fully clothed, did nothing but sleep.

The government’s theory was that Matt violated the statute by “using” the clothed and sleeping child as an object of sexual interest to produce a visual depiction of himself engaged in solo sexual conduct. Matt’s attorney, on the other hand, acknowledged that his client’s conduct was reprehensible and perhaps even criminal under state law, but challenged whether it fell within the scope of § 2251(a). Counsel argued the statute required that Matt be shown to have somehow caused the child to engage in such conduct as well.

perv160201Matt’s computers contained plenty of kiddie porn he had collected on the Internet, so some prison time was assured under the rather punitive federal statutes. But the § 2251(a) conviction kicked the sentence into overdrive, locking Matt up for at least 15 years, so knocking out that count would be a big deal.

It mattered not to the jury, which was unanimously grossed out enough to convict Matt of producing child porn in violation of 18 USC § 2251.

Last week, the 7th Circuit – while hardly excusing the conduct – reversed the conviction. The court very properly engaged in an act of noscitur a sociis — which is really not gross at all. Rather, noscitur a sociis counsels that a word of doubtful meaning is more precisely defined by the neighboring words with which it is associated.

company200812

Here, the 7th said that the word “uses” in the statute “must be construed in context with the other verbs that surround it. When read in this commonsense way, the word has a more limited meaning than the government proposes… Five of the six verbs on this statutory list require some action by the offender to cause the minor’s direct engagement in sexually explicit conduct. The sixth should not be read to have a jarringly different meaning.”

The Court ruled that the “videos in question do not depict a child engaged in sexually explicit conduct; they show” Matt doing so “next to a fully clothed and sleeping child. In other words, the videos are not child pornography.”

United States v. Howard, 2020 U.S. App. LEXIS 24360 (7th Cir. August 3, 2020)

– Thomas L. Root

BOP Whistles a Happy Tune – Update for August 11, 2020

Leave a comment

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

DEATH DOESN’T TAKE A HOLIDAY, BUT BOP SEEKS NORMALCY

Six more inmates died of COVID-19 last week, bringing the BOP’s death total to 116. Twenty-two have died since July 1. Even while the BOP heralded a drop in the number of sick inmates from 2,476 to 1,395, a reduction of 44%, the number of sick staffers hit 580, an increase of 14% from last week (and all-time high). COVID-9 has now reached a record 114 institutions (93% of all BOP facilities).

whistle200811Still, the BOP bravely whistles a happy tune, seeking a return to normalcy as though it has the virus on the run. The agency announced Phase 9 of its rickety COVID-19 “Action Plan.” Phase 9 relaunches a number of EBRR-sanctioned programming (the programs that earn First Step Act credit), some – like the Residential Drug Treatment Program – to 100% and others to half capacity. UNICOR, the federal prison industry, is to spool up to 80% by September 1 and 100% a month later. Recreation time outside will resume, with limitations on group size and length of rec sessions. Inmate transportation begins again.

Meanwhile, fresh breakouts of COVID-19 were reported at USP Lewisburg (51 ill), FCI Loretto (37 ill), the Victorville, California, prison complex (127), USP Marion (70 ill) and FCI Edgefield (60 ill). Those locations join Coleman, Miami, Elkton, Forrest City, Beaumont, Carswell, Oklahoma City, Three Rivers and scores of other BOP institutions with the virus. CNN last week branded FCI Seagoville as “the hardest-hit federal prison in the United States” where “more than 1,300 of the roughly 1,750 prisoners have tested positive for the virus — a stunning three out of every four inmates.”

Since the beginning of May, when there was only a single coronavirus case at Seagoville, the number of inmates testing positive soared to 1,333, according to BOP. Twenty-eight of the roughly 300 prison employees have also tested positive. The outbreak means that the facility has more coronavirus cases than about 85% of the counties in the US.

covidmap200811The virus has reached FCC Florence (Colorado) and FDC Honolulu as well.

At FCI Miami, in Florida, nearly half of the inmates reportedly have tested positive. Kareen Troitino, the FCI Miami corrections officer union president, told ABC News that the virus was spread by one employee to inmates at the facility and, within a day cases at the facility went from one to four. Troitino says the only protective equipment the BOP issued were surgical masks. “One employee walked into work. He did not show a fever. He passed our screening procedures. He was positive. And that one employee spread it to numerous inmates. And then that’s it. Ever since then, it’s been a disaster.”

Troitino’s union local has sued the BOP and several other federal agencies, seeking hazard pay for at-risk essential workers.

In Washington, D.C., Democratic senators and representatives sponsored legislation in both chambers last Thursday to require the array of agencies that administer the nation’s jails and prisons to collect and report publicly detailed information about the spread of COVID-19 in their facilities. Joe Rojas, southeast regional vice president of the federal prison employees, told ABC News, “The Bureau is the largest agency within the DOJ and there’s no oversight. The BOP director doesn’t even get confirmed he just gets appointed.”

Forbes magazine complained last week that the BOP’s “Phase 9 Action Plan… looks a lot like Phase Eight… which looked a lot like Phase Seven. It begs the question as to whether there is a cohesive plan to address the COVID-19 pandemic that has infected over 10,000 federal inmates and over 1,000 correctional staff… killed 110 inmates and one staff member.”

coronadog200323BOP employees at FCI Tallahassee publicly expressed concern over Phase 9’s inmate transportation. “If we’re going to receive inmates that are positive, if we’re going to be assigned to inmates that have already tested positive it’s pretty shaky from day-to-day,” Yalimany Dudley, CO, told WTXL-TV.

Dr. Kristian Morgan, a nurse at the FCI, said inmates are coming in without being tested beforehand, bringing the virus with them. “We received about eight inmates from the Marshal Service last week. Five of those tested positive as soon as they entered inside the institution when we did rapid testing.”

BOP Memorandum, Coronavirus (COVID-19) Phase Nine Action Plan (August 5, 2020)

CNN, Inside the federal prison where three out of every four inmates have tested positive for coronavirus (August 8, 2020)

KTVT, Inside the Federal Prison Where Three Out of Every Four Inmates Have Tested Positive for Coronavirus (August 9, 2020)

Canon City Daily Record, 3 new cases of COVID-19 in Fremont County; Bureau of Prisons reporting 3 cases (August 3, 2020)

Honolulu Civil Beat, First Hawaii Inmate Tests Positive for COVID-19 Along With 4 Corrections Officers (August 7, 2020)

ABC News, As coronavirus spreads through nation’s jails and prisons, lawmakers demand more transparency on toll (August 6, 2020)

WXII-TV News, ‘We’re Risking Our Lives’: Front-Line Federal Workers Sue For Hazard Pay (August 7, 2020)

Forbes, As Bureau of Prisons Enters “Phase 9” Of COVID-19 Plan, BOP Staff Wonder If There Is A Real Plan (August 7, 2020)

WTXL-TV, FCI Tallahassee employees fear the worst as inmate transportation restarts (August 6, 2020)

– Thomas L. Root

Congress Leaves Stimulus – and Federal Prisoners – Up In The Air – Update for August 10, 2020

Leave a comment

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

DON’T START TO FEEL TOO STIMULATED JUST YET

Congress left Washington, D.C. last Friday for its August recess without passing a supplemental stimulus bill. The Democrats are pushing the HEROES Act, passed by the House last May, which proposes $3.5 trillion in spending and includes a lot of beneficial provisions for federal prisoners. The Republican-controlled Senate favors the HEALS Act, which includes about $1 trillion in spending but nothing of the sentencing relief measures favored by the House.

senatestimulus200810The HEROES Act provides that the Bureau of Prisons shall send to home confinement anyone who is 50 or over, is within 12 months of release, or has a list of COVID-19 risk conditions. Those conditions, which were just expanded for a second time by the Centers for Disease Control and Prevention on July 30, include pregnancy, heart disease, asthma, diabetes, HIV, cancer, sickle-cell anemia, respiratory problems, obesity, hypertension, or immune system weaknesses. The only exception are people who pose a specific and substantial risk of bodily injury to or to use violent force against another person.

What’s more, courts would be required to reduce sentences for people unless the government can show by clear and convincing evidence that the defendant poses a risk of “serious, imminent injury” to an identifiable person. The Act also incorporates a reduction of the elderly offender home detention program sentence requirement (the subject of a separate bill that has already passed the House, H.R. 4018) to two-thirds of the sentence reduced by good time, instead of the current two-thirds of the whole sentence.

The Health, Economic Assistance, Liability Protection and Schools (HEALS) Act being pushed by the Senate is a mashup of eight other bills, none of which favors prisoners. What’s worse, HEALS’ stimulus package of an additional $1,200 per person is now withheld from people who were prisoners for every day of the 2020 calendar year.

Senate Democrats are trying to get the HEALS Act to require that phone calls from federal prisons remain free during the pandemic, which is a fig leaf (but not much of one) for prisoners.

No one knows whether a final bill, if there even is one, will include any of the House provisions.

housestimulus200810Several groups led by ACLU wrote to Senate and House leaders last week, urging that any stimulus package require the BOP to transfer vulnerable federal inmates to home confinement, clarify the authority of courts to order compassionate release based on COVID-19, and reduce the amount of time courts must wait before considering compassionate release motions during the pandemic. The letter also called on Congress to expand the elderly offender home detention program.

Finally, the House last week added an amendment to the 2021 Commerce, Justice, Science, and Related Agencies Appropriations bill which prohibits the BOP from collecting its 25% fee from halfway house or home confinement inmates. “For returning citizens lucky enough to find jobs, especially in the midst of a national pandemic and economic crisis,” Congresswoman Eleanor Holmes Norton (D-District of Columbia) said, “charging up to 25% of their income in unnecessary fees is not only unfair, it is counterproductive. Returning citizens could far better use this money to save for future rent, child support and fines and fees associated with their conviction, such as restitution.”

H.R. 6800, HEROES Act

S.4318 – American Workers, Families, and Employers Assistance Act

The Hill, Senate Democrats push to include free phone calls for incarcerated people in next relief package (August 6, 2020)

ACLU Leadership Conference, Open Letter to Senate and House Leaders (August 4, 2020)

Press Release, Norton Amendment Prohibiting Bureau of Prisons from Collecting Subsistence Fees from Returning Citizens Passes House (August 3, 2020)

– Thomas L. Root

Not Everyone Has An Opinion Since COVID-19 Hit – Update for August 6, 2020

Leave a comment

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

YOU’RE NOT THE ONLY ONE SHUT OUT OF THE LAW LIBRARY

One victim of the pandemic, if “victim” is the right word, would be inmate legal filings, hobbled since inmate access to the law libraries at institutions across the country has been curtailed along with recreational and educational activities. A report last week from Law360 found that the coronavirus has affected the courts in another way as well.

sleepingjudge200806COVID-19 has seriously reduced the amount of work coming out of federal courts. In March, the number of written opinions was down 11% compared to the average number filed in March of the four previous years. In April, the decline was 15%, and in May, 24%. June written opinions were down 20%.

The average number of written opinions was down 18% during these four months compared to the average number of written opinions filed in those same four months in the four previous years.

Substantial variance showed between districts, too. The number of written opinions increased 79% in the Western District Texas and 34% in the Southern District of Florida. Meanwhile, the number of written opinions fell 41% in the Northern District of California and 25% in the Northern District of Florida for the same time period.

Law360.com, How Pandemic Is Affecting The Pace Of Judicial Opinions (July 30)

– Thomas L. Root

HEALS Act Proposes Financial Pain For Inmates – Update for August 5, 2020

Leave a comment

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

SENATE STIMULUS PROPOSAL EXCLUDES PAYMENTS TO MOST INMATES

I reported back in April that the CARES Act did not exclude inmates from collecting the $1,200 stimulus check. Since then, the IRS has tried to say otherwise, but it has met a lot of pushback.

nothing170125The House and Senate are still far apart on a second stimulus bill, which everyone hoped would be in place by last Friday. One provision in the Senate version tacitly admits that nothing in the CARES Act kept inmates from collecting stimulus checks. The House version has no such limitation.

Newsweek reported last Friday that the Senate’s outline for stimulus checks, contained in the so-called HEALS Act, revises the eligibility to exclude prisoners in this round. Forbes reported that “under the Senate proposal, any decedent who died before January 1, 2020, any person in jail at the time Treasury processes the check or any individual in prison for all of 2020, may not receive a check. This language is also retroactive to the CARES Act checks.”

At this time, no one knows what provisions – the House’s or the Senate’s – will be included in the final package (or even whether there will be a final package).

Any interesting thought, however: The very fact that the Senate version specifically excludes those in jail or prison permits the reasonable inference that – contrary to what the IRS has argued – the CARES Act as written last March did not do so.

Newsweek, Should Prisoners Get Stimulus Checks? Their Innocent Families Suffer If Not (July 31)

Forbes, Senate CARES Act 2.0 Includes More Stimulus Checks, Unemployment Benefits (July 27)

Kiplinger, Second Stimulus Check Update: HEALS Act vs. CARES Act (July 29)

– Thomas L. Root

Appeals Courts Continue to Flesh Out Fair Sentencing Act – Update for August 4, 2020

Leave a comment

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

A TRIO OF FAIR SENTENCING ACT DECISIONS

crack-coke200804The Fair Sentencing Act, passed in 2010 (“FSA”) reduced the horrific 100:1 crack-to-powder ratio previously enshrined in the law, a policy that meant that one gram of cocaine base was sentenced as though it were a quarter-pound of cocaine powder. This vestige of the crack panic, passed in the Anti-Drug Abuse Act of 1988, meant that defendants convicted of crack received much longer sentences than those who sold cocaine powder. And – because crack was primarily sold by black defendants while powder was primarily sold by white defendants – all of that resulted in a gross racial disparity in sentencing and imprisonment.

You can read more of the background here. 

But the Fair Sentencing Act was not retroactive. That is, it did nothing for people already sentenced under the 100:1 ratio. As I recall, the compromise in the Senate that led to the FSA being passed was that it not be retroactive, a deal needed to get then-Sen. Jefferson Beauregard Sessions III (R-Alabama) aboard. While I find no contemporaneous reports saying as much, Sen. Sessions did kill the 2015 Sentencing Reform and Corrections Act because it sought to make FSA retroactive, and his opposition to the First Step Act is well recalled. So I’m probably right.

We never tire of recalling that Sen. Sessions is gone, gone, gone...
We never tire of recalling that Sen. Sessions is gone, gone, gone…

At any rate, Section 404 of the First Step Act finally made the FSA retroactive, and litigation about that section continues. Here are three very recent examples:

Case 1:  Over 10 years ago, Ralphfield Hudson was convicted of selling cocaine powder and crack. After First Step made the FSA retroactive, Ralphie sought a sentence reduction, which his district court denied after concluding that the First Step Act did not permit the court to reduce a sentence for either a non-covered offense that is grouped with a covered offense or a covered offense when the defendant’s Guidelines range was unaltered by the Fair Sentencing Act.

Ten days ago, the 7th Circuit reversed Ralph’s denial, holding that if a defendant’s aggregate sentence includes both covered and non-covered offenses, a district court may reduce the sentence for the non-covered offenses, and even if the FSA did not alter the Guidelines range for a defendant’s covered offense, the district court may reduce the sentence for uncovered offense.

Case 2:  Vincent Corner did his time on a crack case, but then violated his supervised release by using drugs. The judge gave him another 18 months and some more supervised release time after that.

While Vince was serving his supervised release violation, the First Step Act passed, and Vince applied for retroactive FSA credit on his underlying sentence. The district judge denied him, saying that “deciding whether Vince was eligible for relief under the First Step Act was unnecessary because the court would deny his request for a reduction even if he was.”

denied190109Last week, the 7th Circuit reversed. First Step contemplates a “full review” for retroactive FSA relief, the Circuit said. The requirement that a Sec. 404 motion get a “complete review” suggests “a baseline of process that includes an accurate comparison of the statutory penalties – and any resulting change to the sentencing parameters – as they existed during the original sentencing and as they presently exist… A resentencing predicated on erroneous or expired guideline calculation or a decision to decline resentencing without considering at all the guidelines, would seemingly run afoul of Congressional expectations.”

Case 3:  Chandar Snow was convicted in 1998 of the 21 USC 848(e)(1)(A) offense of murdering someone while engaged in a violation of 21 USC 841(a) and (b)(1)(A), in this case, a conspiracy to distribute 50 grams or more of crack. He got life in prison for the offense. After the Fair Sentencing Act was made retroactive, his underlying drug crime was no longer punishable as an 841(b)(1)(A) offense, because the conviction was not for 280 grams or more.

Chandar took a chance. He argued that under the FSA – made retroactive by § 404 of the First Step Act – meant he no could be guilty of an 848(e)(1)(A) killing offense. The district court turned him down, and refused to lift the life sentence. Last week, the 6th Circuit agreed.

Badlaw200804The question is whether Chandar’s 848(e)(1)(A) is a “covered offense” under Sec. 404. The provision says a “covered offense” is a violation of a Federal criminal statute, the statutory penalties for which were modified by the FSA. “Modified” means reduced by some degree, the 6th said. Here, the FSA did not reduce the sentencing range that applied to the conviction for murder while engaged in a conspiracy to distribute 50 grams of crack. Instead, after the FSA, “those elements no longer amount to an offense under § 848 at all and there is no applicable statutory sentencing range. The elimination of statutory penalties cannot be called a ‘modification’ of statutory penalties without putting great strain on the ordinary meaning of the word ‘modify’.”

Thus, Chandar’s 848(e)(1)(A) conviction could not be considered a “covered offense” under § 404, and he was not entitled to a sentence reduction.

Chandar thus came to understand that no court was going to find a way to release someone guilty of murder when it could find a technical reading of the statute to avoid that outcome. Hard cases do indeed make bad law.

United States v. Hudson, 2020 U.S. App. LEXIS 22887 (7th Cir. July 22, 2020)

United States v. Corner, 2020 U.S. App. LEXIS 23387 (7th Cir. July 24, 2020)

United States v. Snow, 2020 U.S. App. LEXIS 23929 (6th Cir. July 29, 2020)

– Thomas L. Root

BOP Settles Connecticut Inmate COVID Class Action – Update for August 3, 2020

Leave a comment

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

MIRACLE MATH AND A CONNECTICUT COVID-19 SETTLEMENT

If you can’t heal’ em with healthcare, then mend ‘em with math.

wonders200803The Bureau of Prisons just completed a week that was nothing short of miraculous. With nearly 4,500 sick inmates only eight days ago, the BOP reported only 2,426 active cases of COVID-19 last night (101 of which are federal prisoners in private joints). To find any comparable medical miracle, you’d have to go back to the Bible.

The numbers have nothing to do with inmates actually beating coronavirus (although some certainly have done so). Instead, it’s purely arithmetic. The CDC COVID-19 guidelines for prisons directs that people with confirmed or suspected COVID-19 infection be put into medical isolation “to prevent their contact with others and to reduce the risk of transmission.” Medical isolation is to end when the inmate meets pre-established testing criteria for release from isolation. The criteria include that “least 10 days have passed since symptom onset” and the inmate has no other symptoms.

The BOP appears to be following the 10-day standard, which is letting it write hundreds of inmates off the “infected” list every day, even in the face of other numbers that should give BOP officials pause. Inmate deaths reached 110 this week (105 in the BOP, five federal inmates in private prisons), with two inmates dying in Texas and three in Florida. (The BOP has added a note on its webpage that four of the deaths occurred while the inmates were on home confinement, which a reasonable person might think was a technique for deflecting blame – you know, the ‘see, we’re not killing them as fast as CARES Act release is’ kind of thing).

COVID-19 numbers200803

In the last month, the number of BOP employees with COVID-19 has quadrupled, with the number last night standing at 503. Given there have been no family visits or inmate transfers for 120 days or better, BOP staff people coming and going are the last vector standing.

The virus is still active in 106 facilities, 86% of all BOP prisons. As FCI Beaumont proved in June, it’s possible to go from eight  COVID-19 cases to 463 in a little more than a month. Now, it seems it may be USP Lewisburg’s turn (see below).  

COVIDfacilities200803

Notably, after the number of BOP inmates with the virus fell for every day in the past week – in the last three days by double digits – the decline stopped, and the numbers inched up by a percentage point, last night.

In COVID-19 legal news, inmates claiming that conditions of confinement at FCI Danbury put them at risk of COVID-19 settled last week after prison officials agreed to an enhanced review process to evaluate prisoners for CARES Act home confinement. The inmates sued in late April when FCI Danbury was among the hardest hit BOP facilities. By early May, about 60 inmates and 50 staff members had contracted the disease and one inmate has died.

The settlement requires the prison to continue with a rigorous process that ranks inmates by their susceptibility to infection and associated health risks and identifies candidates for various forms of early release. Shortly after the case was filed, US District Judge Michael P. Shea accused the prison administration of failing to comply quickly with guidelines issued by the Dept. of Justice and Centers for Disease Control and Prevention for evaluation and possible release of inmates.

release161117Attorney David Golub, whose law firm represented the inmates pro bono, told the Hartford Courant, “What he basically said to them was, ‘You have to identify the people who are medically vulnerable, you have to identify them right way and you have to make reasoned decision about whether to release to home confinement or not.’ And he monitored them,” said .

The parties will file a joint motion to certify the settlement class today.

I reported last week about the DOJ Inspector General’s report on FCC Lompoc, California, which included that the BOP’s use of CARES Act home confinement authority “was extremely limited.” This week, the Lompoc administration responded that “these findings must be placed in context, as these were unique circumstances where the BOP, along with the rest of the country, was learning about how to treat and manage this novel virus. The mitigation of COVID-19 in all of our facilities, including FCC Lompoc, has been and remains our highest priority.”

The IG report found that the BOP had identified 509 Lompoc inmates who qualified for CARES Act release, but had release only eight of them. Since the Report and a July 14 court order in the class-action suit brought by Lompoc inmates against the institution, the BOP has sent 72 CARES Act home confinement recommendations to a review committee, while an additional 655 applications have yet to be looked at.

covidtest200420In Pennsylvania, USP Lewisburg – long COVID-19 free – has begun testing inmates after finding a case of the virus last Thursday. As of last night, 35 inmates have tested positive. All cases are at the institution’s penitentiary, not the camp. A BOP spokesman told local media that testing should increase the number of COVID cases there.

As of last night, the BOP had completed 41,000 tests, which – if every inmate got only one test – would cover 26% of all inmates. A full 28% have tested positive.

CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (July 22)

CDC, Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings (July 22)

Hartford Courant, Danbury prison inmates settle with Bureau of Prisons in suit over COVID threat (July 27)

Whitted v Easter, Case No. 3:20cv569 (D.Conn.)

Santa Maria, California, Sun, Court order, federal inspection agree with class-action lawsuit’s claims that Lompoc penitentiary could have better stopped the spread of COVID-19 with more home confinement (July 29)

Order, Torres v. Milusnic, Case No. 20cv4550 (CD Cal., July 14, 2020)

Lompoc, California, Record, Officials defend methods used in Lompoc prison’s response to COVID-19 (July 28)

Sunbury, Pennsylvania Daily Item, Federal Bureau of Prisons reports 35 inmates tested positive for virus at USP Lewisburg (Aug. 1)

– Thomas L. Root

Difference Between the President and a Goldfish – Update for July 30, 2020

Leave a comment

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

Today, it’s pretty much just comment.

LIST OF ALL THE PEOPLE GETTING CLEMENCY FROM TRUMP DURING COVID-19

stone2007311.  Roger Stone.
2.  Roger Stone.
3.  Roger Stone.
4.  Roger Stone.
5. Roger Stone.

Did I forget anyone?

As Trump enters the final six months of his first term (and only term, if the combined polls and mood of the electorate is any indication), you can add clemency to the list of Trump accomplishments, along with the border wall, balancing the budget and taking on China. Remember the 3,000 names? The NFL players being asked to submit clemency candidates? The elderly nonviolent prisoners in risk of COVID-19? The turkey? (Not the last one – the turkey got pardoned).

Maybe the President simply lacks a sufficient attention span to get anything done.  Perhaps we should elect a goldfish.

goldfish200731Ohio State law professor Doug Berman lamented in his Sentencing Law and Policy blog last week that “I am not really surprised that Prez Trump has entirely failed to deliver on his promise back in March to look at freeing elderly “totally nonviolent” offenders from federal prisons amid the pandemic. But I figure now is as good a time as any to highlight again that Prez Trump could and should, via just a stroke of a pen, bring clemency relief to the many, many federal prisoners who, like Roger Stone, are older, medically vulnerable and present no clear risk to public safety.”

turkey181128I was pretty tough on President Obama’s chaotic clemency initiative. In retrospect, I should have at least given him credit for trying – however imperfectly – to address the problem. Our incumbent, by contrast, tantalizes with vague promises (“we’re looking at it”) but never delivers.

Delivers? Who am I kidding? He doesn’t know from one minute to the next whether to embrace his limited role in pushing the First Step Act or to rue having ever supporting it. Maybe we’re the fools for ever believing he meant what he said.

Sentencing Law and Policy, A midsummer reminder of all persons that Prez Trump has granted clemency to during the COVID-19 pandemic (July 22)

– Thomas L. Root