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It’s Who You Know – And Who Likes You – Update for July 29, 2020

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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.

A TALE OF TWO CELEBRITY PRISONERS

I have talked to a number of federal inmates who were approved for home confinement by the Bureau of Prisons, only to be yanked back at the last minute because they had not served quite 50% of their full sentences. At last, there is hope! (Spoiler: I’m just kidding).

ICYMI, in the Coronavirus Aid, Relief, and Economic Security Act – signed into law by President Trump on March 27, 2020 – Congress authorized the BOP to send inmates to home confinement at any time (not just in the last 10%/6 months of their sentences under 18 USC § 3624(c)) during a declared national emergency. That would include the current pandemic.

unabomber200730Congress specified no standards for selecting who should be sent to home confinement. Hypothetically, Ted Kaczynski could be sent home to stay inside for the rest of his natural life. But the Attorney General did establish some standards, such as the inmate has to qualify for low or minimum security (sorry, Ted), have good conduct, be nonviolent, and suffer from one or more CDC-identified risk factors for COVID-19.

Then, unwilling to leave the Attorney General’s standards alone, the BOP decided on its own that if the inmate had not served 50% of his or her total sentence (not just the sentence adjusted for good conduct, but the whole thing), he or she would not qualify to be sent home. One exception was if the inmate served 25% and had fewer than 18 months to go. Another exception was… well, let’s get to that.

Last week we saw another example of the BOP’s practice of treating high-profile prisoners different from everyone else.

In May, Paul Manafort was sent to home confinement after serving 27% of his sentence, with 53 months left to go. The BOP explained that while its standards required that inmates serve 50% of their total sentences, it had the “discretion” to make exceptions, which it did in Paul Manafort’s case (even though there was no COVID-19 at Manafort’s prison).

Put another notch in the BOP’s “discretion” belt. Last week, former Philadelphia-area U.S. Representative Shaka Fattah, sentenced to 10 years starting Jan 25, 2017, was released to home confinement from USP Canaan camp. As of last night, USP Canaan reported a single COVID-19 case, and has had only four others since March. The ex-Congressman has served 42 months, and has 60 months left until his good-time release.

cohen200730Compare this treatment to disfavored high-profile prisoners. Back in New York City, former Trump attorney Michael Cohen (who will not be furloughed to have Thanksgiving Dinner with the President) was yanked out of home confinement and sent back to FCI Otisville on July 9. The BOP said it was because he was trying to negotiate all of his home confinement conditions and was being difficult. Cohen and his lawyer said it was because the BOP was trying to make him agree to not talk to the media or write his tell-all book about President Trump, due out just before the election.

Last week, the ACLU filed a habeas corpus on behalf of Cohen, arguing he should be returned to home confinement because the BOP was violating his 1st Amendment rights. The government filed a detailed opposition that explained no one even knew Cohen was writing a book, and he was asked to sign a list of home confinement conditions that the probation officer, a newbie on the job, had gotten from a friend who had used it for other high-profile inmates sent to home confinement.

Last Thursday, a judge granted habeas corpus, and ordered Cohen returned to home confinement. “In 21 years of being a judge and sentencing people and looking at the terms and conditions of supervised release,” he said, “I have never seen such a clause… Why would the Probation Officer ask for something like this unless there was a purpose to it, unless there was a retaliatory purpose saying, ‘You toe the line about giving up your First Amendment rights or we will send you to jail,’” the judge asked.

The irony here is that both sides were right. There is no doubt that the 1st Amendment limitations the Probation Office sought to ram down Cohen’s throat were gross constitutional violations. Federal inmates in prison are entitled to write books (and can even sell them). Indeed, I have read a few inmate-written books, most of which were self-published and execrable.

book200730Likewise, I have no doubt that the Probation official who prepared the Cohen manuscript had no idea he was writing a book, nor did he imagine that he was creating a constitutional firestorm. Some of the grossest unconstitutional limitations on freedom I have ever seen appeared in terms of supervised release as interpreted by probation officers. Imagine living your life prohibited from using any Internet-connected device without prior approval of a Probation Officer. Or from having any contact with anyone who had ever been convicted of a crime (yeah, “crimes” including speeding).  Or accepting a job offer, buying a house or going to Paducah, Kentucky, on an overnight business trip.

Philadelphia Inquirer, Former Philly U.S. Rep. Chaka Fattah came home early from prison. Federal officials won’t say why. (July 26)

The New York Times, Judge Orders Cohen Released, Citing ‘Retaliation’ Over Tell-All Book (July 23)

– Thomas L. Root

Has BOP Found ‘Peak COVID’? – Update for July 28, 2020

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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 COVID NUMBERS MAY BE CRESTING AS CRITICISM OF BOP PANDEMIC RESPONSE GROWS

The number of Federal Bureau of Prisons prisoners with COVID-19 increased 14% last week to 4,413 as of Sunday night (an all-time high), after falling slight on Saturday. Yesterday, however, the number of infected inmates took a 7% plunge.

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It appears that all of that decrease was due to FCC Beaumont’s dramatic (some might say ‘miraculous’) decrease in reported cases, from 463 on Sunday night to 135 on Monday night. But for that decrease, BOP systemwide cases increased by 35.

Miracle200513Other numbers were not so encouraging. Infected BOP staff increased 33% to 405, and four more inmates died. Most ominously, 108 facilities have COVID-19, 88.5% of BOP joints, an increase of 9% over last week.

Of the 4,120 active inmate cases, Texas facilities FCI Seagoville has 1,257, the women’s FMC at Carswell has 529 cases, and Beaumont Low has 463. Other significant outbreaks are at FCI Miami and Coleman Low and Medium (Florida), Victorville Medium I (California), Butner Low (North Carolina), Elkton (Ohio) and Jesup (Georgia).

A report from the Dept. of Justice Inspector General released last week criticized BOP mismanagement of the pandemic at Lompoc. The report said two Lompoc BOP staff members came to work in late March despite experiencing coronavirus symptoms, although those symptoms were not detected during screening. Officials then failed to test or isolate an inmate who reported that he had begun having symptoms two days earlier and later tested positive. And thus it started.

Medical staff shortage limited inmate and staff screening for COVID-19 symptoms, and other staff shortages resulted in Lompoc officials delaying for 15 days the full implementation of staff movement restrictions required by BOP for institutions with active COVID-19 cases.

What’s more, the BOP’s use of home confinement authority in April was “extremely limited.” As of May 13, the IG report said, over 900 Lompoc inmates had contracted COVID-19 but only 8 inmates had been transferred to CARES Act home confinement.

Fault200728In a statement following the release of the report, the BOP said it had fixed nearly all of the issues identified by the inspector general. It blamed the Centers for Disease Control and Prevention guidelines for many of the problems cited in the report. “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 agency said.

Meanwhile, in Los Angeles Federal Court, Judge Consuelo Marshall granted a preliminary injunction in a class-action lawsuit brought by the American Civil Liberties Union of Southern California that accuses the BOP Lompoc management of failing to take basic hygiene steps to protect those imprisoned.

The Judge ordered BOP officials to tell the court which inmates are medically eligible under CDC risk guidelines for release as part of a plan to reduce the population.

corona200323The BOP asked the judge to dismiss the lawsuit, noting it had built a field hospital and adopted mass testing in May. But after more than 70% of inmates at Lompoc Low tested positive, the judge found there was a “substantial risk of exposure to COVID-19, which is inconsistent with contemporary standards of human decency” and that the BOP had “likely been deliberately indifferent to the known urgency to consider inmates for home confinement, particularly those most vulnerable to severe illness or death.”

DOJ Inspector General, Pandemic Response Report 20-086, Remote Inspection of Federal Correctional Complex Lompoc (July 23, 2020)

CNN, DOJ watchdog report finds lack of staffing contributed to Covid outbreak in California prison (July 23)

Los Angeles Times, Judge orders release of vulnerable inmates at Lompoc prisons hit by virus (July 22)

Torres v. Milusnic, Case No 2:20cv4450 (C.D.Cal, entered July 14, 2020), 2020 U.S. Dist. LEXIS 131446

– Thomas L. Root

When It Comes to Compassionate Release, § 3553 Matters – Update for July 27, 2020

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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.

3RD CIRCUIT SAYS § 3553 MATTERS IN COMPASSIONATE RELEASE

compassionlimit200727Before The First Step Act passed in December 2018, only the Federal Bureau of Prisons could file a motion on behalf of an inmate seeking a “compassionate release” sentence reduction under 18 USC § 3582(c)(1)(A). Disgusted with the BOP’s chariness on seeking releases for sick or dying inmates, Congress included a provision in First Step authorizing prisoners to seek compassionate release directly, after asking the BOP to do so and then waiting 30 days while the BOP either refused or dithered.

Even after First Step passed, compassionate release was not widely used, with something like only about 150 decisions between First Step’s passage and the COVID-19 pandemic. But since the virus, compassionate release has been a fast-growing area of the law. LEXIS records over 2,750 decisions involving COVID-19 and compassionate release. And as of last week, the BOP says that 916 compassionate release sentence reductions have been granted.

Because compassionate release filed by movants other than the government is fairly new, there is very little appellate court interpretation of the statute. The 3rd Circuit, which gave us a terrible decision on exhaustion of remedies under 18 USC § 3582(c)(1)(A) 16 weeks ago in United States v. Raia, last week handed down a more reasoned decision on application of 18 USC § 3553(a) sentencing factors in compassionate release cases.

To earn a compassionate release sentence reduction, a defendant has to make three showings: First, that the reasons for the reduction are “extraordinary and compelling;” second, that the defendant is not a danger to the community; and third, that grant of a sentence reduction is consistent with the sentencing factors in 18 USC § 3553(a). That statute, of course, addresses the considerations a district court should include in making sentencing decisions.

corruption200727Edwin Pawlowski had been mayor of Allentown, Pennsylvania, before the feds convicted him for bribery and other political crimes resulting from his shaking down city contractors (a Pennsylvania political sport, if reports from Philadelphia over the past half a century are any guide). He got 180 months, and has served 19 months so far.

Ed filed a motion with his sentencing court for compassionate release, arguing that he suffers from hypertension, heart disease, COPD, dyspnea, and sleep apnea. All of this is exacerbated by his only having one lung. Ed argued these conditions place him at a higher risk of serious illness from COVID-19 if he catches it, and noted that he is locked up in an FCI that has been badly affected by COVID-19.

The court agreed that all that was true, and that these reasons were extraordinary and compelling bases for compassionate release. However, the district court ruled that the § 3553(a) sentencing factors did not weigh in favor of release, as Ed had served just 10% or so of his 15-year sentence.

In late June, the 3rd Circuit upheld the district court in a non-precedential opinion. Last week, it amended that opinion and made it binding precedent.

The Circuit held that the district court “reasonably concluded that several of the § 3553(a) factors – including the need to reflect the seriousness of the offense, promote respect for the law, and afford adequate deterrence – counsel against compassionate release, as that relief would effectively reduce Pawlowski’s sentence from 15 years to less than two years’ imprisonment. We have not previously considered whether a district court abuses its discretion by denying a motion for compassionate release based on the amount of time remaining to be served in the inmate’s sentence. But numerous district courts have taken this into account in considering whether to grant compassionate release… And at least one of our sister circuits has approved that consideration…”

allentown200727The Circuit reasoned that “because a defendant’s sentence reflects the sentencing judge’s view of the § 3553(a) factors at the time of sentencing, the time remaining in that sentence may — along with the circumstances underlying the motion for compassionate release and the need to avoid unwarranted disparities among similarly situated inmates — inform whether immediate release would be consistent with those factors. Hence we cannot conclude that the district court acted unreasonably in determining that the substantial sentencing reduction required for granting compassionate release here… would be inconsistent with the § 3553(a) factors.”

Here, Ed’s original sentence was within the Guidelines. The district court found that Ed’s crimes “were extraordinarily serious, involving abuse of a position of public trust,” and that these crimes required “a significant period of incarceration.” The district court also found that cutting Ed’s “sentence to time served would result in his serving less time than… his former campaign manager and coconspirator, who pleaded guilty and was sentenced to 60 months.”

Sentencing Law and Policy, Back by popular demand, another VERY long list of federal sentence reductions using § 3582(c)(1)(A) (July 19, 2020)

United States v. Pawlowski, 2020 U.S. App. LEXIS 23431 (3rd Cir., July 24, 2020)

– Thomas L. Root

A Rare Reversal for Accidental Brady Violation – Update for July 23, 2020

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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.

A VERY BRADY WIN

brady200723The Supreme Court’s seminal 1963 Brady v. Maryland decision held simply that the government is obligated to provide the defense with all material information (not just evidence) that tends to be exculpatory for the accused. Regular readers of this blog are no stranger to it. See, for example, here, here and here.

But Brady in practice is a lot messier than Brady in theory. That’s why last week’s 7th Circuit Brady win was so sweet.

Maher Obagi and Mohamed Saleh  were convicted of mortgage fraud, in part because Jackie Burchell – a cooperating coconspirator – testified against them. The government argued at closing that the jury should believe Jackie (despite her involvement in the crime and the fact she had lied during a deposition in a civil case), because her testimony was corroborated by Holly Saad, described by the government as an “independent witness.”

But it turned out that Holly was not Polly, at least not sweet Polly Purebred.  Rather, Holly had her own skeletons in the closet. During a break between Maher’s and Mo’s defense closings, a different AUSA from the U.S. Attorney’s Office – who just happened to be watching the closing arguments – recognized that the same Holly whose veracity the parties were arguing about had in fact received immunity in a separate mortgage fraud investigation. The AUSA alerted the trial prosecutors to the “enormous oversight,” and the trial prosecutors told defense counsel.

But it was too late to re-argue the closing, and Maher and Mo got convicted. Last week, the 9th Circuit reversed.

sweetpolly200723The Circuit noted that by the time the oversight was revealed, the government’s closing argument theme had been cast – the jury could trust witness Jackie Burchell because of Holly Saad’s corroboration. Mayer’s counsel had completed his argument, and – the 9th said – “one could not expect Mo at the last minute to reframe his defense to incorporate this impeachment.”

The Circuit said the failure to disclose was accidental but very material, because Holly’s impeachment substantially weakened the credibility of the government’s cooperating witnesses and the strength of its case. Given the difficulty the jury faced in reaching a verdict, the panel could not say with confidence that the undisclosed impeachment did not affect the jury’s judgment.

United States v. Obagi, 2020 U.S. App. LEXIS 22280 (9th Cir. July 17, 2020)

– Thomas L. Root

Mr. Sessions, “Depart Immediately Out of This Place…” – Update for July 22, 2020

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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.

JEFF, WE HARDLY KNEW YE (NOR DID WE WANT TO)…
Not even Alabama wants you anymore, Jefferson...
        Not even Alabama wants you anymore, Jefferson…

Little-noted but good political news last week: former Senator and Attorney General Jefferson Beauregard Sessions III, one of the principal roadblocks to any meaningful sentence reform (think of him as the guy who kept the Fair Sentencing Act of 2010 from being retroactive back when it passed), lost his bid to be nominated as Republican candidate for senator from Alabama in a primary battle with former Alabama football coach Tommy Tuberville.

I’m no Alabama fan (and I was never much for Nick Saban), and I suspect Tuberville is a tyro and Presidential sycophant, but I nonetheless cheer his electoral win. For Mr. Sessions, I recall Oliver Cromwell’s dismissal of the Rump Parliament:

It is high time for me to put an end to your sitting in this place, which you have dishonored by your contempt of all virtue, and defiled by your practice of every vice.

Ye are a factious crew, and enemies to all good government.

Ye are a pack of mercenary wretches, and would like Esau sell your country for a mess of pottage, and like Judas betray your God for a few pieces of money.

Is there a single virtue now remaining amongst you? Is there one vice you do not possess?

Ye have no more religion than my horse. Gold is your God. Which of you have not bartered your conscience for bribes? Is there a man amongst you that has the least care for the good of the Commonwealth?

Ye sordid prostitutes have you not defiled this sacred place, and turned the Lord’s temple into a den of thieves, by your immoral principles and wicked practices?

Ye are grown intolerably odious to the whole nation. You were deputed here by the people to get grievances redressed, are yourselves become the greatest grievance.

Your country therefore calls upon me to cleanse this Augean stable, by putting a final period to your iniquitous proceedings in this House; and which by God’s help, and the strength he has given me, I am now come to do.

I command ye therefore, upon the peril of your lives, to depart immediately out of this place.

Go, get you out! Make haste! Ye venal slaves be gone! So! Take away that shining bauble there, and lock up the doors.

In the name of God, go!

In Alabama, the Republican candidate is in all likelihood the November winner.

sessionsquote170522

I admit that I have written Sessions’ political epitaph before.  As a Senator, he was a pimple on the ass of criminal justice reform. As an Attorney General, he was a boil. But at last, he is gone.

If current polls hold, the Democrats will sweep the presidency, keep the House and retake the Senate for 2021. Given Democratic President Joe Biden’s public adoption of very ambitious sentence reform in his platform, the elimination of Sessions as an antagonistic senator is a positive development for those looking on legislators to build on the First Step Act with additional changes in the criminal code in 2021.

Sessions get the boot. Will the President and Republican Senate be next?
Sessions get the boot. Will the President and Republican Senate be next?

By the way, if there is any hope for any reform legislation this year – such as sending people 60 years old or older to home confinement after doing two-thirds of their good-time reduced sentences, not their total sentences – it will be included in the stimulus package that the Senate has indicated it will announce later this week. Majority Leader Mitch McConnell (R-Kentucky) has said the Senate will not pass the House HEROES Act, a “sprawling $3 trillion bill,” as Forbes put it, approved by the House in June.

The focus is on cost, with the Senate wanting to limit a second stimulus to a lousy $1 trillion. The sentencing reform measures in the House version don’t really cost anything, so some may be included. Given McConnell’s virulent opposition to anything that smacks of sentencing reform, not much is likely to make the final cut (if anything).

Rolling Stone, So Long, Jeff Sessions (July 15)

Biden-Sanders Unity Task Force Recommendations (July 9)

Forbes, Second Stimulus Bill Update: Everything You Need To Know Before The Senate Meets Next Week (July 16)

– Thomas L. Root

Bivens is Dead, Just Not Declared Dead – Update for July 21, 2020

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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.

BIVENS, WE HARDLY KNEW YE


 critic200721Scott Callahan is serving a sentence for child pornography offenses. To pass the time, he took up painting. There is no doubt he built up a lot of self-confidence. Whether he developed skill to match is unclear. But what was clear is that he favored painting females in various states of undress or no dress at all. His work attracted followers, among them BOP officials who seized a number of his paintings, believing them to be more porn than art. Everyone’s a critic.

Scott sued his warden and other officials at his institution for violation of his 1st Amendment rights under Bivens v Six Unknown Federal Narcotics Agents. Bivens and two related cases were decided by the Supreme Court between 1971 and 1980, all of which recognized that people have an implied cause of action to sue federal officers for violations of their constitutional rights. Congress adopted a statute giving people the power to sue state and local officials for violation of constitutional rights, 42 USC § 1983. But Congress has adopted no similar statute giving people the power to sue federal officials for such violations. The Supreme Court reasoned that sometimes individual constitutional rights violations could be redressed only by damages, and the Court concluded in Bivens that it had the power to create such actions.

But that was then, and this is now. Since Bivens and its companion decisions were adopted, the Supreme Court has suffered “buyer’s remorse”, and has nearly gutted Bivens, as the 6th Circuit explained to Scott last week when it threw out his suit. “What started out as a presumption in favor of implied rights of action,” the Circuit explained, “has become a firm presumption against them. The Supreme Court has… repeatedly declined invitations, many just like Callahan’s, to create such actions… When asked’ who should decide’ whether a cause of action exists for violations of the Constitution,” the 6th held, the Supreme Court has repeatedly said “the answer most often will be Congress.”

childart200721The problem for Scott, the Circuit observed, “is not just that there has been a long drought since the Court last recognized a new Bivens action or even that the Court has cut back on the three constitutional claims once covered. What’s harder still is that the Court has never recognized a Bivens action for any First Amendment right, and it rejected a First Amendment retaliation claim decades ago for federal employees. There’s something to be said for leaving it at that and pointing out that the best idea for people in Callahan’s situation is to urge Congress to create a cause of action for constitutional claims against federal officials like the one used against state officials.”

It is fairly safe to say that, except in the narrowest of circumstances – such as when federal agents kick down your door by mistake – Bivens is dead.

Callahan v. BOP, 2020 U.S. App. LEXIS 22115 (6th Cir. July 16, 2020)

– Thomas L. Root

BOP’s Record-Setting COVID-19 Week – LISA Newsletter for July 20, 2020

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We’re back after a week of vacation in the wilderness (away from COVID-19, the Internet and cellphones).

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

TWIN PEAKS

twinpeak200720Last week was a record-setting one for the Bureau of Prisons, and not in a good way. As of last night, 3,861 federal prisoners in BOP and private prisons (and 318 BOP staff) had active coronavirus cases (a record), in 99 BOP facilities and six private prisons, as well as 46 halfway houses (a second record). A total of 101 federal prisoners have died from COVID-19 (a third record), the latest two reported deaths from FMC Carswell and FCI Seagoville, both in the Dallas-Fort Worth, Texas, area.

The number of BOP COVID-19 cases has now blown past the previous record of 3,461 on May 11, 2020. But on that date, COVID-19 was present in only 51 federal prisons, about half of yesterday’s total. The BOP’s history with COVID-19 is one of twin peaks, a spike in May 11 (due largely to the rampant pandemic at FCI Terminal Island) and the current spike, due in large part to Seagoville.

BOPCOVOD200720

The Dallas Morning News reported last Monday that FCI Seagoville announced an effort about two weeks ago to mass test inmates to identify asymptomatic prisoners. There were 61 active cases among inmates and three among employees that day. There were 882 cases as of last Tuesday. Last night, the number hit 1,122. That’s 62% of the inmate population.

One inmate quoted by the newspaper said many inmates feel certain they’ll catch it. He said the prison wasn’t prepared for the outbreak. Some inmates and their families think the virus spread in the facility through the prison staff, according to the paper. Another inmate, who spoke on the condition of anonymity because of his fear of reprisals, described health care in the facility as “spotty and inadequate,” especially at night and on weekends.

Things are not much better at FMC Carswell, the BOP’s medical facility for women. After recording two cases of COVID-19 in April, Carswell saw its third on June 29.

“After that, they started dropping everywhere,” one inmate told the Fort Worth Star-Telegram. “It’s like a scary movie.” As of last night, Carswell had 200 reported inmate cases.

coronadog200323The paper reported that multiple inmates “who did not want to be named out of fear of retaliation reported… that when an inmate tests positive, her belongings are not removed from the shared living space for hours. Inmates are responsible for cleaning the infected rooms but often do not have the proper PPE, two inmates wrote. One inmate who tested positive was allowed to use a shared bathroom, which was not cleaned for hours after she used it.”

Spectrum Bay News 9 of Tampa reported last Friday that the Federal Correctional Complex at Coleman, in Sumter County, Florida, correctional officers union officials say that coronavirus cases among both inmates and staff increased at each of the four Coleman facilities last week, and that the reality is “much worse” than what is reported. Union vice president Jose Rojas complained to the news channel that because the BOP does not test everyone, “you’re walking into a mine full of bombs not knowing who is positive and who is not.”

Rojas said that with growing concern over asymptomatic carriers, the union is now considering setting up a testing site for Coleman staff. He told the Miami Herald that “two officers were working while positive for the virus.”

Since March, Spectrum Bay News 9’s sister operation, Spectrum News 13, has requested interviews with Coleman wardens and BOP officials, along with a tour of FCC Coleman. “Our requests have been repeatedly denied,” Bay News 9 reported.

The Miami Herald reported Friday that “roughly a week ago, FCI Miami had a handful of confirmed infections – not good but better than many prison compounds. Thursday, according to the Bureau of Prisons website, the number had leaped to 93, a colony of vomiting, headachy coughing captives.”

plagueB200406The paper said Kareen Troitino, the FCI Miami corrections officer union president, blamed lack of protective equipment, close quarters and people going in and out. “One of the main challenges is that the Bureau of Prisons defines PPE as surgical masks and nothing more,” the Herald quoted Troitino as saying. “I get a lot of complaints from a lot of employees that they ran out of gloves and N95 masks.” he said.

“We are the new Wuhan, especially in Miami. It’s bad,” Rojas told the Herald. “I’m afraid for our staff.”

The more researchers learn about COVID-19, the uglier it gets. A team of British doctors warned a week ago that potentially fatal COVID-19 complications in the brain – including delirium, nerve damage and stroke – may be more common than initially thought. University College London research suggests serious problems can occur even in individuals with mild cases of the virus.

“We identified a higher than expected number of people with neurological conditions such as brain inflammation, which did not always correlate with the severity of respiratory symptoms,” Michael Zandi, of UCL’s Queen Square Institute of Neurology and University College London Hospitals NHS Foundation Trust, told Agence France-Presse.

Newsweek reported that a European Heart Journal – Cardiovascular Imaging study of 1,216 patients found that 55% of them showed heart damage resulting from COVID-19. of whom 813 had been diagnosed with COVID-19, and 298 were deemed probable cases.

COVIDheart200720

The participants were from 69 countries across six continents. They each had an echocardiogram done between April 3 and 20.

Co-author Professor Marc Dweck, consultant cardiologist at the University of Edinburgh, U.K., said, “Damage to the heart is known to occur in severe flu, but we were surprised to see so many patients with damage to their heart with COVID-19 and so many patients with severe dysfunction. We now need to understand the exact mechanism of this damage, whether it is reversible and what the long-term consequences of COVID-19 infection are on the heart.”

Dallas Morning News, As coronavirus spreads through Seagoville prison, inmates and family fear ‘a waiting game’ to get sick (July 14)

Fort Worth Star-Telegram, Women say life is ‘like a scary movie’ as coronavirus spreads in Fort Worth prison (July 13)

Tampa, Florida, Spectrum Bay News 9, Prison Union Leader Says COVID-19 Outbreak at Coleman Worse Than You Think (July 17)

Miami, Florida, Herald, COVID-19 races through Miami’s federal prison (July 17)

Agence France-Presse, Brain problems linked to even mild virus infections: study (July 8)

Newsweek, Scans Reveal Heart Damage in Over Half of COVID-19 Patients in Study (July 13)

– Thomas L. Root

The Virus is Still With Us, But the Lawsuits Are Not – Update for July 8, 2020

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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-19 REALITY KICKS BOP, INMATES HARD

Two weeks ago, the Federal Bureau of Prisons had COVID-19 on the run. The number of infected inmates had been falling, falling, falling, throughout June, a real bear market for the virus. The number of sick inmates fell to 1,256 by June 25 from a high of 2,109 only 17 days before, staff infections had slipped to 133 from an early June high of 190, and the number of BOP facilities experiencing infections was holding steady at 70. Inmate deaths seemed to have peaked at 92.

kick-em-outTwo weeks later, that real-world pandemic you’ve been hearing about has kicked the BOP in the ass. As of late today, inmate infections are up 81% to 2,109, staff infections have increased by 59%, and the number of BOP facilities with the virus on premises hit 93 (that is, a whopping 76% of all BOP facilities). Six more inmates have died, bringing the total to 98.

The BOP has been looking to tamp coronavirus outbreaks with testing, but testing is spotty. Overall, the BOP says it has tested 30,425 inmates, only about 23% of the BOP population. About 29% of the tests are coming back positive.

JAMAGraph200708

Meanwhile, an alarming report in the Journal of the American Medical Association today found that if coronavirus trotted through American society, it galloped through the prisons (see graph from the article, above). What’s more, the effects in prison were demonstrably worse. “The COVID-19 case rate for prisoners was 5.5 times higher than the U.S. population case rate of 587 per 100, 00” JAMA reported. “The crude COVID-19 death rate in prisons was 39 deaths per 100, 000 prisoners, which was higher than the U.S. population rate of 29 deaths per 100, 000 (Table).” And in a case of doing more with less, U.S. prisons managed to post this sadly impressive statistic despite the fact that in the general population, most of the deaths (81%) came from the cohort of people age 65 or older. But that group comprises 16% of the general population, but only 3% of prisoners. Even with all those extra old people in the general population, prisons managed to bury more COVID-19 victims per 100,000 than did society in general.

control200511The virus hasn’t peaked, but it is nevertheless safe to say that inmate class action suits against the BOP over the agency’s mismanaging of the COVID-19 pandemic has. Last week, the Massachusetts federal district court dismissed an inmate class action against FMC Devens after ruling that it could not proceed as a 28 USC § 2241 habeas corpus action. The inmate plaintiffs refused to proceed under the Prison Litigation Reform Act (which would have required each plaintiff to endure a six month-long administrative remedy process within the BOP before filing suit, thus dooming any hope for judicial relief while it could still do any good).

In a Southern District of New York class action against MCC New York, the court denied the inmate plaintiffs a preliminary injunction based on 8th Amendment violations. The court agreed that “the inmates are likely to show that the MCC’s response to the pandemic was ad-hoc and overlooked many gaps in its scheme to identify and isolate infected inmates — creating conditions that posed a substantial risk to the health of all inmates,” but that they probably could not show that the MCC’s failures were a result of “deliberate indifference to their plight” as opposed to bumbling negligence.

In North Carolina, FCC Butner inmates voluntarily dismissed their lawsuit that aimed their 8th Amendment rights were being violated by the prison’s handling of the COVID-19 pandemic. U.S. District Court Judge Louise W. Flanagan denied the inmates’ motion for a temporary restraining order and preliminary injunction June 11.

corona200313Nevertheless, an Oregon public defender filed suit last Tuesday alleging that “whether through indifference or incompetence, the Federal Bureau of Prisons is endangering the lives of individuals entrusted to its care by failing to establish consistent and effective safeguards to protect them from the coronavirus.” The suit targets FCI Sheridan, and was brought on behalf of a single inmate. Just in the past week, Sheridan reported its first COVID-19 case.

Journal of the American Medical Association, COVID-19 Cases and Deaths in Federal and State Prisons (July 8, 2020)

Fernandez-Rodriguez v. Licon-Vitale, 2020 U.S. Dist. LEXIS 116749 (S.D.N.Y. July 2, 2020)

Grinis v. Spaulding, Case No. 1:20cv10738 (D.Mass)

Wake Weekly, Butner Inmates Withdraw Lawsuit Over COVID-19 Response (July 2)

Oregon Public Broadcasting, Federal Lawsuit Calls Out COVID-19 Conditions at Sheridan Prison (June 30)

– Thomas L. Root

You Can’t Get Whatever You Need at Aliceville’s Health Services – Update for July 7, 2020

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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.

REASON MAGAZINE MAULS FCI ALICEVILLE HEALTHCARE

Reason.com, a libertarian magazine and website, published a lengthy investigative piece last month shredding the quality of healthcare the Federal Bureau of Prisons provides female inmates at FCI Aliceville.

prisonhealth200313The article is detailed and deeply researched. At one point, it cites the compassionate release of inmate Angela Beck last year. U.S. District Judge Catherine Eagles (Middle District of North Carolina) found that the BOP made Angela wait two months for imaging after she first found lumps in her left breast. Then she had to wait eight months for a biopsy, which confirmed the cancer, and two more months for surgery. By that time, the cancer had spread to her lymph nodes, requiring a radical mastectomy. Five more months passed before Beck’s first appointment with an oncologist, who determined that it was too late to begin chemotherapy at that point.

Judge Eagles wrote that the neglect Angela suffered “likely reached the level of a constitutional violation,” and that if she remained in BOP custody, she would continue to face “a substantial likelihood of substandard medical care for her life-threatening disease.”

The government, of course, opposed release, arguing that Angela’s “medical issues,” that is, the appalling negligence, “d[id] not qualify as a terminal medical condition or debilitated medical condition.” Judge Eagles thought otherwise, and released Angela so she could get some decent care at home.

Reason noted that although its article focused on Aliceville, “this story could have been written about any number of prisons or jails. Medical neglect of incarcerated people is a problem across the country on federal, state, and local levels. It’s a national disgrace—the kind people prefer to ignore. Prison officials downplay or hide the scope of it, there is a high bar for inmates trying to bring Eighth Amendment lawsuits challenging prison conditions, and the public by and large pays little attention to what happens behind prison walls.”

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The magazine received a message about an inmate being taken to Health Services with chest pains. “My friend told me that that lady today in medical kept saying, ‘I am going to die, I am going to die’,” the message continued. “And she did … but did she have to?”

The article said, “That’s a question Reason has been asking for the last year, and a question the BOP appears to have no interest in answering.”

Reason, These Women Received a Death Sentence for Being Sick In Prison (June 30, 2020)

United States v.  Beck, 425 F. Supp. 3d 573 (MDNC, 2019)

– Thomas L. Root

7th Circuit OKs Rehaif Relief Where Issue Is “Complex” – Update for July 6, 2020

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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.

AIN’T SEEN NUTHIN’ YET

guns200304With the exception of the Fourth Circuit (which is a story for another time), courts of appeal agree that people convicted of being “prohibited persons” in possession of a gun have to meet the F.R.Crim.P. 52(b) “plain error” standard to raise the Supreme Court’s Rehaif case on appeal where they did not do so at trial.

That’s pretty relevant, because until Rehaif was handed down a year ago, no one was raising the issue at trial.

“Plain error” means you have to show that the trial court erred, that the error was plain (or obvious), that it affects your substantial rights, and that the error seriously affects the integrity of the justice system. In Rehaif cases, this means that the defendant had to show that there was a reasonable probability he or she would not have entered a guilty plea or been convicted if the error had not occurred.

To do this, the courts look at how likely it was the defendant would have known he or she belonged to a class of people not allowed to have guns. Sometimes that’s pretty easy to figure out: the defendant knew he or she had previously served more than a year for some prior crime. In that case, it’s hard for a defendant to argue he did not know that he had been convicted of a crime carrying a sentence of more than a year.

But what if the prohibited class the defendant belongs to is not all that clear? Bob Triggs’ kid made some stupid social media posts that suggested shooting up his school, so the police checked to be sure the boy had no access to firearms. In the process, they found that Bob – who had a few hunting rifles – had a 10-year old domestic battery misdemeanor. A conviction for a misdemeanor crime of domestic violence is as disqualifying for gun possession as a prior felony under 18 U.S.C. § 922(g)(9).

manyguns190423Bob said he had no idea he couldn’t have a gun, and he surrendered the rifles to the police. They turned it over to the U.S. Attorney (who rarely sees a case unworthy of throwing the might of the United States government at the hapless defendant), and Bob got indicted for a § 922(g) offense.

(In another world, the cops would have said, “Gee, Bob, now you know you can’t have guns,” and would have turned his rifles over to  the someone to sell them and given Bob the proceeds. But this is America, the world’s leading incarcerator of citizens. We just had to prosecute this hapless guy).

After Bob got convicted, Rehaif – which held that a defendant had to know that he or she was a member of a group prohibited from possessing a gun – was decided, and Bob raised it on appeal under the “plain error” standard. The 7th Circuit agreed the district court’s conviction of Bob without proof he knew he was in a prohibited class was an error, and it was pretty obvious.

The Circuit said to establish prejudice from the Rehaif error, Bob had to show a “reasonable probability that he would not have pleaded guilty had he known of the government’s burden to prove” he knew of the error.

“Many prosecutions under § 922(g) involve violations of… the felon-dispossession provision, which prohibits firearm possession by any person ‘who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year,’ the 7th said. “Under this simple definition, a defendant will have difficulty establishing prejudice from a Rehaif error because the new knowledge element is quite easy to prove, especially when the defendant previously served more than a year in prison… A defendant in that situation ‘will face an uphill battle to show that a Rehaif error in a guilty plea affected his substantial rights’ because the new understanding of the knowledge element doesn’t materially change the guilty-plea calculus.”

guns170111But what constitutes a misdemeanor crime of domestic violence, the Circuit ruled, is a very complex thing. “Given the comparative complexity of this definition,” the 7th Circuit said, “the guilty-plea calculus changes. Rehaif improves Triggs’s trial prospects, giving him at least a plausible argument that he was unaware that his 2008 battery conviction is a crime of this nature.”

The 7th Circuit may yet rue the day it held that 922(g)’s complexity gave a defendant a plausible reason to believe he was allowed to own guns. The definition of “crime punishable by imprisonment for a term exceeding one year” seems pretty straightforward until one reads the pretzel-like definition set out in 18 USC § 921(a)(20). It turns out that sometimes a crime is not a “crime” and a two-year sentence does not exceed one year, and other state laws having nothing to do with disqualifying crime turn it into an offense that doesn’t count.

So the 7th says that § 922(g)(9)’s complicated? You ain’t seen nothin’ yet.

United States v. Triggs, 2020 U.S. App. LEXIS 20542 (7th Cir. July 1, 2020)

– Thomas L. Root