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BOP Misses a Base, and SCOTUS Calls the Agency Out – Update for May 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.

BUT WAIT, THERE’S MORE…

More in the continuing saga of Judge James Gwin versus FCI Elkton – in which the Cleveland-based Federal Judge issued a preliminary injunction against the Federal Bureau of Prisons facility because the conditions of confinement of inmates especially vulnerable to COVID-19 was likely to constitute “deliberate indifference” (a term loaded with 8th Amendment implications)… and the BOP ran to the Supreme Court to complain about an (allegedly) out-of-control federal district court.

yerout200527Yesterday, the Supreme Court denied the BOP’s request that it stay the Judge’s injunction by a 6-3 vote. It reminded me of my Little League umpiring days… an exuberant base runner chugging around the diamond on his way to a home run misses touching second base by a foot or so. When he makes it to home, I have to call him out. A lot of parents boo.

Like that, the Supreme Court called the BOP out on an obvious blunder: the BOP effectively wanted a stay of last Tuesday’s District Court order that directed it to take specific steps to get Elkton inmates moving to home confinement. But the BOP did not seek a stay in the Court of Appeals first. Like base running, you can’t get away with crossing home plate if you don’t tag all of the preceding bases.

Practically speaking, the Supremes’ denial means that the District Court’s demand that the BOP actually address its disastrous management of COVID-19 at FCI Elkton may proceed unimpeded.

Last month, as I described at the time, Judge James Gwin of the U.S. District Court for the Northern District of Ohio granted a preliminary injunction ordering BOP officials at FCI Elkton (located about 70 miles southeast of Cleveland) to identify, and then to start transferring or releasing to home confinement medically vulnerable prisoners. The BOP promptly appealed this order to the U.S. Court of Appeals for the Sixth Circuit, but the Sixth bounced the appeal in a brief order finding that Judge Gwin had not abused his discretion.

slowroll200421After that (at least according to the plaintiffs and Judge Gwin) the BOP slow-walked the identification and transfer of vulnerable inmates. After all, judges retire, pandemics fade… if the agency could only do nothing long enough, the problem might take care of itself.

A week ago, Judge Gwin had had enough, and let the BOP know it. Finding that that BOP had not complied with his directive from last month to clear out Elkton in order to protect vulnerable people from the spread of coronavirus (which has already killed nine Elkton inmates and 64 federal inmates nationally), the Judge said the BOP had “made only minimal effort to get at-risk inmates out of harm’s way.” As of May 8, 2020, five subclass members were “pending [home confinement] community placement. Six inmates were identified as maybe qualifying for home confinement. No inmates were deemed eligible for furlough transfer. But to date, Respondents have not identified any inmates whose confinement has actually been enlarged as a consequence of the preliminary injunction.”

The Judge ordered the BOP to loosen requirements on who qualifies for placement on home confinement under the Bureau’s CARES Act authority by

• eliminating requirements about length of his or her sentence an inmate has served (reversing the BOP’s position that an inmate had to have served 50% of his or her entire sentence, or 25% and have less than 18 months to go, in order to be eligible);

• disregarding whether they committed had certain low or moderate offenses within the past 12 months (reversing the BOP’s position that any disciplinary report in the past 12 months – from possessing a shank or taking an apple from the chow hall to eat later) – was automatically disqualifying);

• eliminating a BOP requirement that the inmate be a U.S. citizen in order to get CARES Act home confinement placement;

• eliminating the requirement that an inmate with a “low” PATTERN risk score be denied CARES Act home confinement placement; and

• disregarding the fact that an inmate is serving time for a “violent” crime (and “violence” is being defined more broadly by the BOP than by any other government agency interpreting federal law) if the crime occurred more than five years ago.

The Court instructed the BOP to explain in detail to the court why any inmate was denied CARES Act placement or Bureau recommendation for compassionate release furloughed or moved to another facility, the prisons bureau must also explain why.

The judge’s order observed that “[b]y thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates.”

Calvin thumb on nosePreviously, the BOP had tried without success to get the Sixth Circuit to stay the injunction. After last week’s order from the Judge spelling out what Elkton was to do right away, the BOP an application for a Supreme Court stay of Judge Gwin’s preliminary injunction “pending appeal of that injunction to the United States Court of Appeals for the Sixth Circuit and, if the court of appeals affirms the injunction, pending the filing and disposition of a petition for a writ of certiorari and any further proceedings in this Court.”

The problem with the BOP’s Supreme Court filing was evident from the get-go. Although it claimed to be seeking a stay of the April injunction, the BOP spent much of its brief complaining about last Tuesday’s order. As the inmate plaintiffs cheerfully pointed out in their response filed last Friday, the BOP had never asked the Sixth Circuit to review last week’s order, and jumping the appeals court to straight to SCOTUS is not allowed.

Yesterday, the Supremes agreed, but with a caveat:

[O]n May 19, the District Court issued a new order enforcing the preliminary injunction and imposing additional measures. The Government has not sought review of or a stay of the May 19 order in the U.S. Court of Appeals for the Sixth Circuit. Particularly in light of that procedural posture, the Court declines to stay the District Court’s April 22 preliminary injunction without prejudice to the Government seeking a new stay if circumstances warrant.

The Care Bears did not mean the Court cared much for the BOP's application for stay...
          The Care Bears did not mean the Court cared much for the BOP’s application for stay…

The Court seemed to be leaving the door open a crack, inviting the BOP to come back if it was unsuccessful in getting the Court of Appeals to stay the latest order.

Justices Thomas, Alito and Gorsuch voted to grant the stay, meaning that Chief Justice Roberts, Kavanaugh, Breyer, Ginsburg, Kagan and Sotomayor were in the majority, denying the stay.

Williams v. Wilson, Case No. 19A-1041, 2020 U.S. LEXIS 2951 (Supreme Court, May 26, 2020)

– Thomas L. Root

Starting Phase Seven (Because the First Six Have Worked So Well) – Update for May 26, 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.

TIME FOR PHASE SEVEN…

The BOP launched Phase Seven of its COVID-19 Action Plan last week, announcing (among other things) that it will begin moving about 6,800 inmates who have been waiting in local detention centers across the U.S. to federal prisons to avoid further jail overcrowding.

fail200526 And why not? When Phase Five began on April 2, the BOP had 75 sick inmates, 39 sick staff and two inmate deaths from COVID-19. That was over 3,000 COVID-19 cases ago. With a record of success like that, the BOP really ought to stick with a winner, and implement Phase Seven.

BOP Director Michael Carvajal told BOP staff in his weekly video message that the BOP will set up three designated testing and quarantine sites, at FTC Oklahoma City, FCC Yazoo City and FCC Victorville. The transferees will be tested for COVID-19 when they arrive at the quarantine site facility and again when they are transferred to their designation institution.

No plans have been announced for mass testing of people currently in BOP facilities, although groups as diverse as the ACLU and the Council of Prison Locals (representing 30,000 BOP employees,  earlier this month called for universal testing in all prisons.

crazynumbers200519The number of inmate COVID-19 cases reported by the BOP dropped throughout the past week from 2,402 to 1,603, but the staff COVID-19 case numbers have remained stubbornly above 175. Likewise, the number of institutions with active COVID-19 cases has remained above 50. Three more inmates died last week, bringing the total dead to 60. More ominously, at least two facilities that had reported COVID-19 inmate cases but were later declared to be coronavirus-free are back on the list: FCI Talladega reports one inmate and one staff member with the illness, and FMC Devens- with no cases just two weeks ago – reports 24 inmates and two staff sick with the virus.

The real problem with the BOP numbers is that no one really believes them. Reuters reported last week that while a May 6 report by the Centers for Disease Control and Prevention that surveyed local, state and federal prisons for COVID-19 reported 5,000 inmate cases. Reuters performed its own data analysis, and found about 17,300, over three times CDC’s tally.

The infectious disease experts who filed the Supreme Court amicus brief in the FCI Elkton case noted that “over 3,000 confirmed cases of coronavirus have emerged in BOP’s federal correctional facilities. Given the dearth of testing, these numbers likely dramatically understate the problem.”

gtfo200526Incidentally, at the facility that started it all for the BOP, FCC Oakdale, has resumed universal testing of inmates. Also, last Friday, USA Today reported that the BOP reassigned Oakdale warden Rodney Myers to “temporary duty” at the BOP South Central Regional Office.

Although the BOP did not elaborate on the reason for the move, Ronald Morris, president of the local union representing the corrections workers, told the Wall Street Journal last Friday, “Warden Myers’s continued negligence and endangering of staff and inmates was creating a more difficult situation to control the spread of Covid-19.”

USA Today said that Myers did not immediately respond to requests for comment.

Reuters, Across U.S., COVID-19 takes a hidden toll behind bars (May 18)

USA Today, Feds reassign warden at Louisiana prison hit hard by coronavirus (May 22)

Wall Street Journal, Warden at Prison Besieged by Coronavirus Is Reassigned (May 22)

KDBC-TV, El Paso, Texas, Federal prison system to begin moving nearly 7K inmates (May 22)

– Thomas L. Root

Does the Fox Guarding the Henhouse Know Anything About Chickens? – Update for May 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.

6TH CIRCUIT ISSUES REMARKABLE CRACK SENTENCE REDUCTION RULING

hammer160509Everyone knows that a fox should not be delegated to guard the henhouse. But that’s because a fox knows what a chicken is (not to mention all of the delicious ways one may be prepared for dinner). But is it better when the fox, with all of a fox’s carnivorous ways, doesn’t have the first idea about the chickens he has been tasked to guard?

Back in 2006, Marty Smith pled guilty to a crack conspiracy involving more than 50 grams. Because Marty had a prior state drug conviction, he received a 240-month (that’s 20 years) mandatory minimum sentence, even though his Guidelines sentencing range would otherwise have been a still-substantial 168-210 months.

After the First Step Act passed, Marty applied for retroactive application of Congress’s 2010 Fair Sentencing Act, which punished crack cocaine offenses much more closely to powder cocaine offenses.  Marty’s sentencing court, the U.S. District Court for the Eastern District of Kentucky, agreed that Marty was eligible for a reduction, and that under the FSA, his sentencing range was 77-96 months (and the statutory mandatory minimum fell to 120 months). But the sentencing judge hardly cared: he held that Marty’s original 20-year sentence “remained appropriate.”

“Appropriate” to whom? Certainly not to the 6th Circuit, which last week reversed Marty’s sentence. Noting that the sentence that the district court reimposed is now twice Marty’s maximum Guideline range and 250% the bottom of his range (excluding the statutory minimum), the Circuit held that that “the district court’s explanation for denying Smith’s motion for a reduction does not adequately explain why Smith should not receive at least some sentence reduction.”

The district court did little more than recall it had examined the 18 USC § 3553(a)(2) sentencing factors back in 2007, the Circuit said, and found Marty had a high risk for recidivism based on his significant criminal history. The 6th held that “these considerations are accounted for within-the-guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress… This is especially true when the district court previously found the at-guideline range sentence to be appropriate.”

It is true that Congress changed the Guidelines through the Fair Sentencing Act, the 6th said, but “the fact that Congress was the actor that reduced Smith’s guideline range through the passage of the First Step Act, rather than the Sentencing Commission, if anything increases rather than decreases the need to justify disagreement with the guideline.”

foxhenhouse200522

Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that “the district judge in this matter is Danny C. Reeves, who just happens to be one of the two remaining active members of the U.S. Sentencing Commission. There is a particular irony in the Sixth Circuit panel needing to remind a member of the USSC about which ‘considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress’.”

hammering200522The Sentencing Commission has been without a quorum since December 2018. Judge Reeves’ term expires on October 1, 2021. despite the fact that the Guidelines badly need revision (see the Commission’s obsolete policy on compassionate release, if you want an excellent example), perhaps there are worse things in the world than handing Judge Reeves a hammer for him to take to sentencing policy he may not completely understand.

United States v. Smith, Case No. 19-5281, 2020 U.S. App. LEXIS 15613 (6th Cir. May 15, 2020)

Sentencing Law and Policy, Sixth Circuit panel finds district judge gave insufficient justification for not reducing crack sentence after congressional reductions (May 16)

– Thomas L. Root

The World Turned Upside Down – Update for May 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.

BOP SCURRIES TO SUPREME COURT IN BID TO STOP DISTRICT COURT ORDER TO PROTECT VULNERABLE INMATES

Now for the continuing saga of Judge Gwin versus FCI Elkton – in which the Cleveland-based federal judge issued a preliminary injunction against the Federal Bureau of Prisons facility because the conditions of confinement of inmates especially vulnerable to COVID-19 was likely to constitute “deliberate indifference” (a term loaded with 8th Amendment implications)… as the BOP runs to the Supreme Court to complain about an (allegedly) out-of-control federal district court.

bartleby200521Last month, as we described at the time, Judge James Gwin of the U.S. District Court for the Northern District of Ohio granted a preliminary injunction ordering BOP officials at FCI Elkton (located about 70 miles southeast of Cleveland) to identify, and then to start transferring or releasing to home confinement medically vulnerable prisoners. The BOP promptly appealed this order to the U.S. Court of Appeals for the Sixth Circuit, but the Sixth bounced the appeal in a brief order finding that Judge Gwin had not abused his discretion.

Bartleby the Scrivener has nothing on the BOP. Having lost its interlocutory attempt to force the inmate plaintiffs into interminable trench warfare over their habeas corpus action – and thus let time and inmate attrition take care of Elkton’s coronavirus outbreak – the BOP simply chose to ignore the Judge’s injunction. Last Tuesday, an apparently fed-up Judge Gwin let the BOP know who in the case had a robe and gavel, and who did not.

On Tuesday, the Court ruled that BOP officials had not complied with his directive from last month to clear out Elkton to address the spread of coronavirus, which has already killed nine Elkton inmates (out of 58 federal inmates nationally) and infected over 100 others. The Judge noted that of 837 inmates identified as medically vulnerable to COVID-19, the BOP had “made only minimal effort to get at-risk inmates out of harm’s way. As of May 8, 2020, five subclass members were “pending [home confinement] community placement.” Six inmates were identified as maybe qualifying for home confinement. No inmates were deemed eligible for furlough transfer. But to date, Respondents have not identified any inmates whose confinement has actually been enlarged as a consequence of the preliminary injunction.”

Charitably characterizing the BOP’s efforts to date as “limited,” Judge Gwin ordered the BOP to loosen requirements on who qualifies for placement on home confinement under the Bureau’s CARES Act authority by

• eliminating requirements about length of his or her sentence an inmate has served (reversing the BOP’s position that an inmate had to have served 50% of his or her entire sentence, or 25% and have less than 18 months to go, in order to be eligible);

• disregarding whether they committed had certain low or moderate offenses within the past 12 months (reversing the BOP’s position that any disciplinary report in the past 12 months – from possessing a shank or taking an apple from the chow hall to eat later) – was automatically disqualifying);

• eliminating a BOP requirement that the inmate be a U.S. citizen in order to get CARES Act home confinement placement;

• eliminating the requirement that an inmate with a “low” PATTERN risk score be denied CARES Act home confinement placement; and

• disregarding the fact that an inmate is serving time for a “violent” crime (and “violence” is being defined more broadly by the BOP than by any other government agency interpreting federal law) if the crime occurred more than five years ago.

The judge instructed the BOP to explain in detail to the court why any inmate was denied CARES Act placement or Bureau recommendation for compassionate release furloughed or moved to another facility, the prisons bureau must also explain why.

Calvin thumb on noseThe judge’s order observed that “[b]y thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates.”

But the BOP immediately struck back. Late yesterday, the BOP filed an application for a Supreme Court stay of Judge Gwin’s preliminary injunction “pending appeal of that injunction to the United States Court of Appeals for the Sixth Circuit and, if the court of appeals affirms the injunction, pending the filing and disposition of a petition for a writ of certiorari and any further proceedings in this Court.”

donothing200521

After the predictable self-serving explanations to the Supreme Court that “the Federal Bureau of Prisons (BOP) is working assiduously to mitigate those risks within its facilities by implementing a multi-phase plan it developed in January 2020,” the application for stay complains that “the district court’s injunction — now augmented by the court’s sweeping May 19 order — would undermine BOP’s systemic response to the COVID-19 pandemic; intrude the Judicial Branch on policy decisions that have been assigned to expert prison administrators; and require BOP to defy the CDC’s guidance to restrict prisoner movements during the pandemic to avoid unnecessary risk of spreading the virus.”

Justice Sonia Sotomayor, who is assigned as Circuit Justice for the Sixth Circuit, has ordered the inmate petitioners to file a response by tomorrow morning.

Order, Dkt. 85, Wilson v. Williams, Case No. 4:20cv00794 (N.D. Ohio, issued May 19, 2020)

Application for a Stay of the Injunction Issued by the United States District Court for the Northern District of Ohio and for an Administrative Stay, Williams v. Wilson, Case No. 19A-____ (Supreme Court, May 20, 2020)

– Thomas L. Root

No Pants, Sneaky Releases and Weird Numbers – Update for May 19, 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.

JUDGE DEPANTS BOP CARES ACT EFFORTS, WHILE TRUMP BUDDY JUMPS HOME CONFINEMENT LINE

Last week’s top three developments in the BOP’s response to the coronavirus pandemic were a federal court’s grant of a preliminary injunction against FCI Danbury, the CARES Act release to home confinement of President Donald Trump’s former campaign chairman Paul Manafort, and the BOP’s unusual COVID-19 inmate numbers.

depants200519In Connecticut, a federal judge granted a preliminary injunction ordering the FCI Danbury warden to promptly identify inmates with COVID-19 risk conditions and to begin aggressively evaluating requests by prisoners for transfer to home confinement or compassionate release. The judge ruled that the FCI Danbury administration had failed to carry out Attorney General William Barr’s April 3 memo ordering the BOP to “maximize” emergency authority granted by the March 28 CARES Act to release inmates to home confinement.

The Danbury inmates — men and woman confined at three facilities within the complex — complained in the lawsuit that the institution was intentionally dragging its feet on compliance with Barr’s memo. The inmates argued — and the court agreed — that prisoner releases or transfers are necessary to decrease congestion and permit adequate social distancing within the institution.

The order gives the Danbury warden less than two weeks to provide him with a list of inmates eligible for transfer to home confinement. In the case of the ineligible inmates, the judge ordered the prison to provide explanations. While the judge did not grant a preliminary injunction on inmate requests for mass transfer of inmates to other institutions or home confinement, and for appointment of a special master to enforce virus mitigation measures in the prison, but he ordered an expedited hearing schedule to take up the questions.

The 74-page order blasts Danbury’s chary use of CARES Act authority and compassionate release. In the suit, the BOP admitted that since March 19, FCI Danbury staff received 241 requests for compassionate release. Of these, 136 had been denied, 18 were returned to the inmate for further information, and 87 were still awaiting review. The court observed that

the figures make clear that the FCI Danbury staff has, to date, not granted a single request for compassionate release—a batting average that is dramatically less favorable to inmates than the frequency with which courts in this District are granting Section 3582 motions… This suggests that the Warden is setting an impossible high bar for these requests. Alternatively, it suggest that the Warden has not set a new standard for compassionate release in light of the pandemic, but is applying an obsolete one that takes no account of the risk of illness or death to medically vulnerable inmates from COVID-19.

Danbury’s use of CARES Act authority fared no better. “In spite of the explicit statutory authorization in the CARES Act to make widespread use of home confinement in response to the threat posed by COVID-19, and the exhortations of the head of the government department in which the Bureau of Prison sits,” the Court wrote, “the implementation of this directive at FCI Danbury has been slow and inflexible.” Noting the Warden’s admission that only 159 inmates have been reviewed and a mere 21 inmates actually been placed on CARES Act home confinement, the Court said, “the criteria apparently being used by the Respondents to evaluate inmates for home confinement evidence a disregard for the seriousness of the health risk faced by vulnerable inmates…. In fact, the inmate bulletins make clear that those who have not served a specified percentage of their sentences are categorically disqualified: any inmate who has not served at least 50% of his or her sentence is deemed ineligible for home confinement, irrespective of vulnerability to COVID-19.”

Someone in the BOP must have read the Danbury order, because the very next morning, an inmate was sent to CARES Act home confinement who had only completed 25% of his sentence, and was not housed in a prison that had any COVID-19. Unfortunately for the BOP, the prisoner was named Paul Manafort.

linejump200519

Manafort, Trump’s former campaign chairman, pled guilty in one federal case and was convicted after a trial in a second, and is about as high-profile as a federal prisoner can be. His release to home confinement in the predawn hours of last Wednesday spurred immediate denunciations of the unequal treatment of prisoners in a criminal justice system in which the wealthy and well-connected jump the line while millions of others are forced to face the spreading coronavirus pandemic with little or no hope of release.

The BOP explained that the agency “ha[s] wide discretion over who is granted home confinement,” the Des Moines Register reported. While there have been no reported cases of coronavirus at FCI Loretto, Manafort’s lawyers had previously argued that the “growing number of cases in Pennsylvania” meant it was “only a matter of time before the infection spreads to staff and inmates.” The attorneys said last month that high-risk inmates, such as their client, had to be removed from the prison before the virus arrived.

The Manafort home confinement is already being thrown in the face of U.S. Attorneys arguing against compassionate release on the grounds that the defendant has not served enough time, or that there is no coronavirus at the facility.

The BOP’s COVID-19 numbers took a puzzling dip last week. Following a tour of FCI Terminal Island Tuesday, Congresswoman Nanette Barragán, D-California, said the conditions inside the prison fall short of the federal government’s responsibility to protect inmates during the COVID-19 pandemic.

Apparently Barragán’s complaints did not fall upon deaf ears. As of Monday night, FCI Terminal Island was reporting 693 inmates sick with coronavirus. As soon as Barragán completed her visit, Terminal Island’s sick inmate count fell to 150 inmates, a 79% decrease.

Huffpost reported that “a proactive testing and segregation strategy that Bureau of Prisons officials and the Los Angeles Department of Public Health implemented late last month has seemingly produced a rapid reduction in the cases. Faced with the health crisis, officials took dramatic steps ― a lockdown of the facility, mandated testing of all prisoners, and separating inmates by their COVID-19 status.”

The BOP told Huffpost that an “aggressive testing and quarantine mitigation strategy” has led to the recovery of more than 567 inmates have recovered, while 130 remain infected. Eight Terminal Island inmates died in the pandemic.

crazynumbers200519A week ago, the BOP reported 3,385 inmate COVID-19 cases, with 48 dead. As of last night, there are 2,402 inmate cases. Eight more federal inmates died in the last week, bringing the death toll to 57. More ominously, the number of institutions with reported COVID-19 has climbed from 51 to 54 as of Sunday (but fell to 49 last night), and staff coronavirus cases climbed from 250 a week ago to 284 as of Sunday, before taking a dive to 196 last night.

The numbers seem to move of their own volition. As Reuters pointed out yesterday, “federal prisons, which typically limit testing to inmates with obvious symptoms, reported confirmed infections in fewer than 4,200 of their total inmate population of about 150,000, with 52 deaths.” As this blog has noted before, if you don’t test, you can’t count.

Rather crazy, but hardly reliable.

Long Beach, California, Post, Terminal Island is failing to protect inmates from COVID-19, congresswoman says after tour (May 13)

Hartford Courant, U.S. Judge backs prison inmates in Danbury on COVID-19 suit, orders warden to move fast on requests for release (May 12)

Martinez-Brooks v. Easter, 2020 U.S. Dist. LEXIS 83300 (D.Conn. May 12, 2020)

Common Dreams, ‘Manafort Released. But [Insert Name] Still Locked Up’: Special Treatment for Trump Crony Denounced (May 13)

Des Moines Register, Ex-Trump campaign chairman Paul Manafort released from prison amid coronavirus pandemic (May 13)

Daily Beast, Paul Manafort’s Prison Had No Coronavirus Cases. He Was Released Anyway. (May 13)

Huffpost, Lockdown At Terminal Island Federal Prison Curbs Deadly Coronavirus Outbreak (May 15)

– Thomas L. Root

Hoping the Caboose Stays Attached to the Train – Update for May 18, 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.

HOUSE OF REPRESENTATIVES TUCKS INMATE COVID-19 RELIEF INTO HEROES ACT

caboose200518The House passed the HEROES Act of 2020, a $3 trillion coronavirus-relief package, last Friday by a narrow 208-199 vote. The measure marks the Democrats’ starting point for talks with Republicans and the White House on the next round of stimulus. Fourteen House Democrats, many of whom were elected in 2018 from swing districts, voted against it. One Republican, Peter King (New York), voted for the bill.

Republicans are saying the bill, H.R. 6800, has no prospect of passing the GOP-led Senate. “It’s a parade of absurdities that can hardly be taken seriously,” Senate Majority Leader Mitch McConnell (R-Kentucky) was quoted in the Wall Street Journal as having said Thursday night. McConnell said he had spoken recently with President Trump, and that they agree another bill is probably necessary but that “it’s not going to be a $3 trillion left-wing wish list like the speaker is apparently going to try to jam down the throats of her majority.”

Why do I care (except that my bride and I could use another $2,400 check)? I care because tucked into the bill starting at page 1683 (§ 191101), is the so-called Pandemic Justice Response Act. That section makes clear that the House of Representatives is not terribly impressed with the Bureau of Prisons’ efforts so far to reduce its inmate population because of COVID-19.

The House is not alone. Last week, the U.S. District Court for the District of Connecticut minced no words about the BOP’s exercise (nonfeasance would be a better term) of its CARES Act authority to send FCI Danbury inmates to home confinement:

In spite of the explicit statutory authorization in the CARES Act to make widespread use of home confinement in response to the threat posed by COVID-19, and the exhortations of the head of the government department in which the Bureau of Prison sits, the implementation of this directive at FCI Danbury has been slow and inflexible. The Warden indicates that only 159 inmates have been reviewed since March 26, and a mere 21 inmates have actually been placed on home confinement, out of a population of roughly 1,000. Moreover, the criteria apparently being used by the Respondents to evaluate inmates for home confinement evidence a disregard for the seriousness of the health risk faced by vulnerable inmates. Indeed, the most recent inmate bulletin regarding home confinement criteria does not even expressly mention health risks or how they will be evaluated… In fact, the inmate bulletins make clear that those who have not served a specified percentage of their sentences are categorically disqualified: any inmate who has not served at least 50% of his or her sentence is deemed ineligible for home confinement, irrespective of vulnerability to COVID-19. Other criteria in the inmate bulletins are similarly unrelated to medical vulnerability and, at best, only tangentially related to public safety. For example, any inmate with an incident report in the past 12 months—no matter the seriousness—is deemed ineligible for home confinement, regardless of any health condition he or she might have. At oral argument, the Government suggested that such an inmate could seek compassionate release as an alternative. But that is a dead end at FCI Danbury: Of the 241 requests for compassionate release filed since the COVID-19 crisis began, the Warden has signed off on exactly 0.

drno200518The HEROES Act seeks to solve the BOP’s unfortunate predisposition to read any grant of statutory discretion to be the right to say “no, no and hell, no!” by providing that the Bureau shall (not may but 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 include pregnancy, heart disease, asthma, diabetes, HIV, cancer, sickle-cell anemia, respiratory problems or immune system weaknesses. The only exception are people determined by clear and convincing evidence to 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. This would make an elderly offender doing a 120-month sentence eligible for home confinement at 68 months rather than 80 months.

noplacelikehome200518Under CARES Act home confinement, all the BOP is doing is designating an inmate’s home as the place of imprisonment. Nothing prevents the BOP from redesignating an inmate on home confinement back to prison at the agency’s whim. The HEROES Act would prohibit reincarceration of people sent to home confinement for no better reason than the pandemic might be over.

The HEROES Act is an 1800-page train, leaving the Pandemic Justice Response Act to pretty much be the caboose. While everyone considers it likely some of the HEROES Act will be approved by the Senate, no one can be sure whether the caboose will still be attached to the train when the Act finally pulls into the station.

Wall Street Journal, House Narrowly Passes $3 Trillion Aid Package (May 16)

H.R. 6800, HEROES Act of 2020

– Thomas L. Root

Meanwhile, Back at the High Court Ranch… Update for May 14, 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.

THE WORLD KEEPS ON TURNING

The Supreme Court handed down a pair of cases last week, neither of which even mentioned the coronavirus. It reminds us that the world goes on.

jam200514In Kelly v. United States, the Court reversed the conviction of a couple of former New Jersey governor Chris Christie’s assistants, who had shut down some lanes on the George Washington Bridge to mess with Fort Lee, New Jersey. The Fort Lee mayor refused to support Gov. Christie’s re-election, and the pair decided they would back up bridge traffic coming from Fort Lee to teach the mayor a lesson.

The scheme was found out, and the U.S. Attorney brought wire fraud charges. The pair was convicted.

This was another great example of government overreach. The Supreme Court has previously said wire fraud must involve property. Here, the government argued that the defendants deprived motorists of the property right to use all lanes on the bridge, and cost the Port Authority – which runs the bridge – money the hire extra toll-takers.

The Supreme Court didn’t buy it. “The property must play more than some bit part in a scheme: It must be an ‘object of the fraud’,” the Court ruled. “A property fraud conviction cannot stand when the loss to the victim is only an incidental byproduct of the scheme… The time and labor of Port Authority employees were just the implementation costs of the defendants’ scheme to reallocate the Bridge’s access lanes. Or said another way, the labor costs were an incidental (even if foreseen) byproduct of their regulatory object… Every regulatory decision requires the use of some employee labor. But that does not mean every scheme to alter a regulation has that labor as its object. The defendants’ plan aimed to impede access from Ft Lee to the George Washington Bridge. The cost of the employee hours spent on implementing that plan was its incidental byproduct.”

The unanimous court warned that “Federal prosecutors may not use property fraud statutes to set standards of disclosure and good government for local and state officials.”

judge160229The other case – United States v. Sineneng-Smith – is noteworthy for the court’s slapping down of the 9th Circuit. A defendant convicted of encouraging illegal immigration argued the statute – 8 U.S.C. § 1324(a)(1)(A) – violated her 1st Amendment rights. The Court of Appeals wanted the parties to argue a different issue, however, and on its own assigned some amici (friends of the court) to argue the different issue.

The Supreme Court reversed. “The Nation’s adversarial adjudication system follows the principle of party presentation,” the Court said. “In both civil and criminal cases, we rely on the parties to frame the issues for decision and assign to courts the role of neutral

The Supremes admitted that a court is not “hidebound by counsel’s precise arguments, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”

Kelly v. United States, Case No. 18-1059, 2020 U.S. LEXIS 2640 (May 7, 2020)

United States v. Sineneng-Smith, Case No. 19-67,  2020 U.S. LEXIS 2639 (May 7, 2020)

– Thomas L. Root

It’s a Miracle! – Update for May 13, 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.

MIRACULOUS DOINGS AT THE BOP

Yesterday brought two miracles at the Bureau of Prisons, one physical and one legal.

Following a tour of FCI Terminal Island yesterday, Congresswoman Nanette Barragán, D-California, said the conditions inside the prison fall short of the federal government’s responsibility to protect inmates during the COVID-19 pandemic.

“I’m very concerned about what I saw in there,” Barragán said during a press conference. “The bottom line here is the federal government has a duty and an obligation to protect inmates and their health.”

Apparently Barragán’s complaints did not fall upon deaf ears. As of Monday night, FCI Terminal Island was reporting 693 inmates sick with coronavirus. As soon as Barragán completed her visit, Terminal Island’s sick inmate count fell to 150 inmates, an amazing 79%!

It’s a miracle! In a mere 24 hours, 543 inmates suddenly recovered from COVID-19! The Lord Himself could hardly have done better.

And some people wonder why no one believes the BOP’s numbers…

lackfaith200513Meanwhile, on the other coast, a legal miracle: we learn that as least as far as the BOP is concerned, George Orwell was right – some animals really are more equal than others.

Three weeks after the BOP told hundreds of inmates who had been tapped for home confinement under the CARES Act that they would not be going home after all, because of a heretofore unannounced BOP policy that required an inmate to serve 50% of the full sentence prior to CARES Act approval, inmate Paul Manafort was sent to home confinement from FCI Loretto after serving less than a third of his sentence.

FCI Loretto, of course, is a hotbed of infection, with a total of zero COVID-19 cases so far. 

According to news reports, “prison officials have wide latitude when considering these releases on a case-by-case basis.” “Discretion,” of course, means that some guys with 54 months yet to serve on a 71-month sentence can be sent home from a place that doesn’t have any coronavirus.

Is this a great country or what? If you wonder, check with all of those vulnerable inmates who were denied home confinement from places like Butner, Elkton, Terminal Island, Fort Worth and Lompoc because they had only served 45% of their sentences…

Long Beach, California, Post, Terminal Island is failing to protect inmates from COVID-19, congresswoman says after tour (May 13, 2020)

BOP, Coronavirus Map (May 13, 2020)
Yahoo.com, Former Trump campaign chairman Paul Manafort released to home confinement amid coronavirus concerns (May 13)

– Thomas L. Root

BOP Ponies Up Some (Questionable?) Private Prison COVID-19 Numbers – Update for May 12, 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 STARTS REPORTING COVID-19 IN PRIVATE PRISONS, BUT QUESTIONS REMAIN

numbers160704After a letter from 41 advocacy groups and 55 families of inmates held at private prison North Lake CI, Baldwin, Michigan – all of them aliens convicted of federal crimes – the Bureau of Prisons has finally started providing some summary figures for federal inmates in private prisons suffering from COVID-19.

The letter, sent last week to Attorney General William Barr and BOP Director Michael Carvajal, accused North Lake operator GEO Group and the BOP of opacity as to COVID-19 at the facility:

Despite its status as a federal facility operating under the authority of the BOP, and despite GEO’s knowledge of positive test results among staff since the first week of April, the North Lake Correctional Facility has never appeared on [the BOP COVID-19 map]. Only daily requests from journalists, addressed first to the GEO Group and then to the Michigan Department of Health and Human Services, have yielded any results. Precise figures for incarcerated people who have tested positive remain unavailable. Families continue to search for any information, while the risks facing the more than 1,500 people held at this facility, where social distancing is out of the question, grow more severe every day.

The BOP first posted information on the private prisons last Friday, reporting 66 active COVID-19 cases at five facilities. North Lake reported 18. As of last night, the number had risen to 82 active cases. North Lake still reported 18.

Critics complain that the report is not enough. University of North Carolina professor Lauren Brinkley-Rubinstein, who is tracking  COVID-19 in state and federal prisons, said, “You cannot convince me that there are only 110 cases in these prisons. It’s impossible to understand what is going on at the facilities.”

Two of the private facilities, Great Plains CI in Oklahoma (27 cases) and Rivers CI in North Carolina (18 cases), qualify as COVID-19 “clusters” under CDC guidelines. States that have responded to prison clusters with comprehensive testing have found that a majority of inmates test positive for coronavirus.

numbers180327The Professor is right: the math does not work. According to daily COVID-19 data provided by Michigan’s Dept. of Health and Human Services, Michigan’s two federal prisons have 110 prisoner cases as of last Saturday. DHHS does not provide a breakdown, but on Saturday, BOP reported that FCI Milan had 14 inmates with COVID-19. If the Milan number is right, then North Lake 90 infected inmates. If the North Lake number is right, the Milan’s number is wrong. Perhaps both are undercounts.

BOP, COVID-19 in Private Prisons (May 10, 2020)

Michigan Advance, ‘It’s hell’: COVID-19 concerns grow at federal immigrant prison in Baldwin (May 10, 2020)

Letter to Attorney General William J. Barr (May 8, 2020)

The Marshall Project, Why Did It Take the Feds Weeks to Report COVID-19 Cases In Privately Run Prisons? (May 8, 2020)

– Thomas L. Root

BOP’s Coronavirus Toll Keeps Climbing – Update for May 11, 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.

EVERYTHING’S UNDER CONTROL, BUT THE COUNT CLIMBS…

control200511The Bureau of Prison’s toll of inmates infected with coronavirus continued its meteoric climb last week, increasing 71% from 1,926 last Sunday night to 3,385 as of 5 p.m. yesterday. Six weeks into the BOP’s execution of its guidance memos, pandemic plans for preparedness, daily briefings and “comprehensive management approach for oversight of the situation,” inmates are dying of COVID-19 at a rate of better than one a day. The death toll today stands at 48.

At the Lompoc, California, facilities, the number of inmates with COVID-19 shot up to 842 this week, making it the largest federal prison outbreak. Lompoc surpassed FCI Terminal Island, California, in the nation, where 693 inmates have contracted the virus.

Nearly 70% of the FCI Lompoc inmates tested thus far have been positive, a number that exploded by more than 300 in recent days, officials said Friday. FCI Lompoc and Terminal Island now account for about 47% of all the federal inmates who have tested positive nationwide. Both prisons have done widespread testing of hundreds of inmates even without symptoms.

At a neighboring Lompoc medium-security prison on the same grounds, 31 inmates and 14 staff have become infected, officials said. Two Lompoc Medium inmates have died after contracting the virus.

Santa Barbara County Supervisor Gregg Hart on Friday expressed dismay with the BOP’s cooperation with the County. “We have been consistently rebuffed by prison authorities,” he said. FCI Lompoc accounted for 310 of the 311 new coronavirus cases in Santa Barbara County last Friday.

Senator Kamala Harris (D-California) telephoned the Terminal Island warden last week to demand to know how the virus rampaged through that facility. KCAL-TV, Los Angeles, reported that Harris told Warden Felicia Ponce she thought the institution was unprepared for the outbreak and that the warden should be pushing to release low-security inmates to home confinement. KCAL said Harris convinced the warden to agree to allow inmates to place phone calls, something that hasn’t been allowed since the outbreak began.

Meanwhile, the BOP announced that a 20-bed temporary hospital care unit has been built in a vacant Lompoc factory. The facility, planning for which started April 10, opened last Wednesday.

BOPPAO200511The BOP reported 619 active cases at FMC Fort Worth as of yesterday, “but they won’t share how many total cases they’ve had or how many of the 1,472 inmates are being tested,” according to WFAA-TV, Dallas. The prison recently added outdoor tents with room to separate 123 inmates, but the TV station said “it’s unclear if they’re using it.”

Last Wednesday, the BOP announced in plans to “substantially expand testing starting at BOP detention and quarantine sites,” using test instruments obtained from the US Dept of Health and Human Services. Three quarantine sites already have one machine each, which can do four tests an hour: FCI Gilmer, West Virginia; FTC Oklahoma City; and FCC Yazoo, Mississippi.

The Bureau said its testing protocols include that (1) inmates who have a negative test result and are asymptomatic will be placed in quarantine for a 14-day period; (2) inmates who have a positive test result but are asymptomatic, will be placed in isolation; (3) inmates who are symptomatic are placed in isolation prior to testing and will be immediately tested; and (4) inmates who have a Negative test result but are symptomatic will be placed in isolation.

On the litigation front, the judge in the ACLU case against FMC Devens last Friday denied the inmate plaintiffs a preliminary injunction ordering the release of inmates. The judge ruled that the plaintiffs had not shown the would succeed on the merits, because “both the BOP and FMC Devens have made significant changes in operations in response to COVID-19.” The judge wrote, “These affirmative steps may or may not be the best possible response to the threat of COVID-19 within the institution, but they undermine an argument that the respondents have been actionably deliberately indifferent to the health risks of inmates.”

But during a sentencing last Tuesday, a Southern District of New York federal judge blasted Attorney General William Barr’s failure to improve conditions at BOP facilities around the country. In giving a bank fraud defendant time served for the 15 months he had spent in jail awaiting trial, the Judge called MDC Brooklyn’s failures during the coronavirus crisis “very serious” but “not surprising,” noting that

to my knowledge, there have been no forthcoming serious reviews of the living conditions at either the MCC or the MDC, which are only many times compounded by this coronavirus that is plaguing the country, but in particular, the country’s prisons. It is an outrage, I have to say, and I’m very disappointed that the Attorney General has not followed through on making a thorough investigation of conditions that those of us in the business, as it were, are all too familiar with, and more importantly, has not implemented appropriate changes.

Last Friday, the wardens of those prisons told the Eastern District of New York that they had tested only 24 inmates in the last six weeks, out of over 2,400 in the two facilities. Eleven of those tests were positive.

taskforce200511The inmate plaintiffs in the FCI Elkton case asked Norther District of Ohio Judge Gwin to enforce his prior order that the facility transfer or release the 837 vulnerable inmates identified in the Warden’s filing two weeks ago. Complaining that Elkton had released none of the identified inmates, the plaintiffs wrote, “of the 837 known subclass members – a number that is known to be underinclusive – Respondents have approved six people, or 0.7% of the subclass, for some form of release. That is equal to the number that had already been approved for home confinement transfers before Respondents answered the Petition in this case. Respondents have not, in other words, stepped up their pace in response to this Court’s Order.”

“Instead,” the plaintiffs argued, “they appear to be applying a set of unattainable filtering criteria. The reasoning for each rejection remains known only to Respondents, as they refuse to answer discovery about the conditional class. Across multiple cases, the BOP has taken contradictory and shifting views on what criteria apply for home confinement, for example.”

In the FCI Danbury case, the inmate petitioners are awaiting a Connecticut federal judge’s decision on their preliminary injunction demand. Meanwhile, the New Jersey ACLU has sued FCI Fort Dix, demanding release of medically vulnerable inmates to limit the prison’s population, and asking that the prison adopt the Centers for Disease Control guidance “regarding testing, medical isolation, quarantine, and social distancing for those who remain, to ensure constitutionally-compliant custody.”

If the prison does not do that ACLU-NJ Legal Director Jeanne LoCicero said in a statement, “FCI Fort Dix is speeding toward a public health catastrophe.” The BOP reported yesterday that 31 FCI Ft. Dix inmates have COVID-19.

Los Angeles Times, 70% of inmates test positive for coronavirus at Lompoc federal prison (May 9)

San Jose Mercury-News, 3 California prison inmates die from COVID-19 complications (May 7)

KCAL-TV, Families Push For Inmates At Terminal Island To Be Released Due To COVID Outbreak (May 8)

BOP, Hospital Care Unit at FCC Lompoc (May 4)

BOP, Bureau of Prisons To Expand Rapid Testing Capabilities (May 7)

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

New York Daily News, Judge on Jeffrey Epstein case rips AG William Barr, saying his failure to fix Bureau of Prisons is ‘an outrage’ (May 6)

Wilson v. Williams, Case No. 4:20cv794 (N.D.Ohio)

Martinez-Brooks v. Easter, Case No. 3:20cv569 (D.Conn.)

Chunn v. Edge, Case No. 1:20cv1590 (E.D.N.Y.)

Letter to Judge Mauskopf in response to Adm Order 2020-14 (May 7)

NJ.com, N.J. federal prison is becoming a ‘deathtrap,’ ACLU says, seeking release of vulnerable inmates (May 4)

– Thomas L. Root