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A Collateral Consequence We Didn’t See Coming – Update for May 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.

ADDING INSULT TO INJURY

Anyone who has ever had a brush with the criminal justice system knows well enough how the collateral consequences of even a single felony conviction will haunt someone for the rest of his or her natural life.

collateral181109I figured that the latest indignity was that anyone with a prior felony conviction, no matter how old, was being precluded by the Small Business Administration from participating in the stimulus loans – the Paycheck Protection Program and the Economic Injury Disaster Loans for small businesses. Remember that youthful indiscretion back in 1990? That means you can forget saving the business you’ve built over the past 30 years, the one with 25 employees who are about to lose their jobs because of the coronavirus shutdown. Congress did not specify in the stimulus program that you could not have a prior felony conviction in order to participate, but the SBA sure did.

But I was wrong. No, not about the SBA’s mindless ban on people with prior convictions participating in the PPP and EIDL loans. That’s real enough. Instead, I was wrong about that being the latest indignity.

USMS200507An alert reader brought to my attention a letter she had received from the U.S. Marshals Service the other day. Years ago, she had run with the wrong boyfriend, and was left with bad memories and a conviction for holding several kilos of pot on his behalf. Now, she is a successful grant writer with a nice family. We’ll call her “Jill.”

Jill admits that no matter how long it’s been since her supervised release ended, a letter from the Marshals will leave you in a cold sweat as you open it. Her fear turned to disbelief and anger as she read the contents:

On December 30, 2019, the United States Marshals Service (USMS), Information Technology Division (ITD) received notification from the Department of Justice, Security Operations Center (JSOC) of a security breach affecting a public-facing USMS server that houses information pertaining to current and former USMS prisoners. You have been identified as an individual whose personally identifiable information (PII) may have been compromised as a result of this breach…

It’s not enough that the USMS stores all of that embarrassing personal data about you long after you cease being subject to Tommy Lee Jones’ whims. The Marshals can’t even protect their own servers, and – having left all of that PII about former prisoners on what the USMS euphemistically calls a “public-facing USMS server” – Xi Jinping and Vladimir Putin now own your DOB, address, social security number, register number, license tags and all of your other data (including your photo, which was duly digitized and stored in your file as well).

marshals200507If you’re a non-governmental actor – say an Equifax or Facebook or a ChoicePoint or a Marriott – you can be sure that a data breach will be followed by a hefty fine imposed by the Federal Trade Commission, not to mention a class-action suit by the consumers whose PII was leaked to some guy in Romania needing a shower.

But if you’re the government, and you discover a breach but wait four full months to reveal it to the affected parties… Yeah, so what.

The Marshals have magnanimously agreed to offer the affected persons “identity theft protection services through ID Experts®, the data breach and recovery services expert, to provide you with MylDCare™. MyIDCare services include: one Tri- Bureau Credit Report from all three Credit Bureaus (TransUnion, Experian and Equifax), 12 months of Credit and Identity Monitoring, a $5,000,000 insurance reimbursement policy, and fully managed ID Theft Recovery services.”

thankfornothing200507This credit service may be of dubious value to former prisoners (read the reviews), but will most assuredly be of no value whatsoever to people who are still prisoners, and who may be released someday to find out that their credit has been sliced and diced by some guy in Mumbai. But then, who cares? Holding people accountable for gross misfeasance is something the government’s good at, as long as the people aren’t part of the government. And burdening an inmate with yet another collateral consequence is always a vote-getter.

“With this protection,” the USMS confidently predicts, “MyIDCare will help you resolve issues if your identity is compromised.”

Peachy.

USMS Letter to affected persons, dated May 1, 2020

The Marshall Project (not to be confused with the Marshal Service, a different animal altogether), Trump Administration Tells Some Business Owners “Do Not Apply” for Coronavirus Loans (Apr 8)

Law 360, Have A Criminal Record? COVID-19 Relief May Be Out Of Reach (May 3)

– Thomas L. Root

Beating Up The BOP Over CARES Act Home Confinement – Update for May 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.

BOP TAKING IT ON THE CHIN OVER COVID-19 HOME CONFINEMENT MOVING TARGET

Hand in hand with criticism of the BOP’s COVID-19 management, courts and the media are blasting the Bureau’s bungling of its CARES Act home confinement authority.

punchinface180423For those of you who just came in, the CARES Act authorized the BOP to send inmates to home confinement during the COVID-19 emergency, in order to get inmates with medical vulnerabilities out of prisons ahead of the novel coronavirus pandemic.  Attorney General William Barr directed the BOP to act expeditiously, and laid out a series of standards by which the BOP should measure whether an inmate should be sent home.

The BOP applied the standards, and told a lot of people they would be going home. Then, in an abrupt about-face, the BOP decided that the AG’s standards weren’t enough. The Bureau retroactively applied a requirement that the inmate have completed 50% of his or her sentence in order to qualify for CARES Act home confinement, and told many of the people in pre-release quarantine that they would not be going to home confinement after all.

Then the DOJ said that the 50% standard wasn’t a standard at all, and then the BOP said, well, maybe not a standard, just a priority. And the shell game continued…

Last week, the BOP and DOJ were sharing the flak for the snafu.

Forbes noted, “Attorney General Barr gave some direction to the BOP and it dropped the ball. Individuals who were told they were being released from prison… have now been told they are staying put. This could have been avoided. The strain on the court system has been burdened with Compassionate Release motions that have wasted the time of judges, defense attorneys and prosecutors when all along the BOP could have acted to release vulnerable inmates. These resources, this personal pain, could have been avoided if the BOP just used its own policies.”

AP wrote, “The Bureau of Prisons has given contradictory and confusing guidance how it is deciding who is released to home confinement in an effort to combat the virus, changing requirements, setting up inmates for release and backing off and refusing to explain how it decides who gets out and when.”

shellgame200506NBC analyst and former US Attorney Glenn Kirschner last week blamed Barr. “Shifting and changing inmate release policies have caused widespread confusion. The lack of a clear, common-sense Justice Department/Bureau of Prisons policy prompted one federal judge to sternly rebuke the government, saying the procedures were ‘illogical’ and ‘kafkaesque…’ Simply put, the Bureau of Prisons flip-flops are yet another example of Barr’s lack of leadership and a sign of a Justice Department in free fall.”

In a lawsuit by inmates at the Federal Medical Center in Devens, Massachusetts, against BOP management of the COVID-19 pandemic there, the BOP explained to the court that some of the petitioning inmates were ineligible for CARES Act release under the BOP’s 50%-of-sentence standard. The petitioners shot back, “Although Respondents use words like “required criteria” and “ineligible” to describe their decision to bar so many people from being transferred to home confinement, they cannot defeat a claim of deliberate indifference by arguing they have tied their own hands with bureaucratic red tape. That is not a defense; it’s a confession.”

Forbes, The Federal Bureau Of Prisons’ “List” Has Caused Confusion in Courts and Prisons (April 24, 2020)

AP, Federal inmates battle mixed messages on home confinement (April 28, 2020)

NBC, Is Michael Cohen getting out of prison? Why Barr’s coronavirus release rules deserve scrutiny (April 28, 2020)

Petitioner’s Reply (Dkt. 38), Grinis v. Spaulding, Case No. 20cv10738 (filed April 27, 2020)

– Thomas L. Root

Last Week Was Lousy for the BOP… and Inmates – Update for May 4, 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.

SKYROCKETS IN FLIGHT

The Bureau of Prison’s official count of inmates with COVID-19, already widely disbelieved as being a gross undercount, skyrocketed last week from 799 on Sunday night to 1,926 inmates at 51 facilities last night.

rocket190620About 70% of all infections are at the federal prisons at Terminal Island, California, the Federal Medical Center at Ft. Worth, Texas, and the Butner prison complex in North Carolina. Terminal Island has the highest number of COVID-19 cases at 620 inmates.

Eleven inmates died last week, bringing the total COVID-19 deaths in the BOP to 38. The one that sparked the most outrage was that of Andrea Circle Bear, a 30-year old pregnant inmate with a 26-month sentence. Assigned to the women’s Federal Medical Center Carswell, also in Fort Worth, she was put on a ventilator March 31 and delivered her child by caesarean section the next day. Ms. Circle Bear never came off the ventilator, and died of COVID-19 on Apr 28.

“It’s an outrage that Andrea Circle Bear, a near full-term, pregnant woman with underlying medical conditions, lost her life while in federal custody,” Congressman Jerrold Nadler (D-New York), chairman of the House Judiciary Committee, told Reuters. “We have a moral and constitutional duty to prevent additional deaths among those who are detained or imprisoned.”

Sen. Richard Durbin (D-Illinois), who sits on the Senate Judiciary Committee, said, “Simply put, this tragic death was preventable.”

The BOP warned a week ago that as it began testing, the numbers would go up. But the BOP may not have been prepared for what the tests show: figures provided to Associates Press last week showed that out of 2,700 tests systemwide, nearly 2,000 inmates –¬ over 70% – have come back positive, strongly suggesting there are far more COVID-19 cases in the system than anyone knows.

corona200313Felicity Rose, director of research and policy for criminal justice reform at the progressive advocacy group FWD.US, said “the lack of testing is leading to a false sense of security,” NPR reports.

“We know that it’s spreading among staff, and that staff are bringing it into and out of the facilities,” Rose said. “We know there are people who are asymptomatic and are able to pass it along, but we just don’t know how many.”

AP reported that BOP’s response “to the growing coronavirus crisis in prisons has raised alarm among advocates and lawmakers about whether the agency is doing enough to ensure the safety” of inmates. At the same time, the AP said, BOP “communication policies are leaving families in the dark about their loved ones’ potentially life-threatening condition.”

The BOP reports on its website that MDC Brooklyn and MCC New York have no reported inmate COVID-19 cases as of May 3. In a filing that same day, however, the wardens of those facilities told the US District Court that they had 11 confirmed inmate COVID-19 cases.

In the class action suit pending against the BOP’s management of COVID-19 at FMC Devens, an expert on infectious diseases in prisons told the court, “As of April 26, 2020 FMC-Devens was reporting a single confirmed prisoner case of COVID-19. But because the facility is testing only symptomatic prisoners, this data point is not meaningful. It certainly does not mean that the facility is safe. Everything we know about the presentation and transmission of this disease points to the fact that when you have one confirmed case under a symptomatic protocol, it is fair to assume that there are many more cases at that facility..”

Following the Dept of Justice Inspector General’s decision to investigate whether the BOP is complying with available guidance and best practices on COVID-19 outbreaks, Senators Durbin and Chuck Grassley (R-Iowa) asked the IG to also look at whether the BOP is properly using its legislative authority to transfer at-risk inmates to home confinement:

We are concerned that BOP is not fully and expeditiously implementing relevant statutory authority and directives from the Attorney General. We are also concerned about how closely BOP is following CDC guidance or taking other preventive measures to adequately protect BOP staff and inmates from the spread of COVID-19… We also worry that BOP is significantly underestimating the rate of COVID-19 infection in BOP facilities because BOP has not yet conducted the number of tests on staff or inmates appropriate for facilities where a highly contagious virus can be easily spread.

Although an ACLU class action case against FCI Oakdale (Louisiana) was dismissed on jurisdictional grounds ten days ago, at least five other cases are active. In Massachusetts, the judge in the FMC Devens case heard argument on a preliminary injunction last week, and is expected to rule this week.

A motion for a preliminary injunction has been filed in Connecticut federal court by a class of inmates at FCI Danbury, seeking to have female inmates and vulnerable male inmates placed in home confinement immediately. The plaintiffs argue that at FCI Danbury, site of a what they call a “dangerous and uncontrolled” COVID-19 outbreak, the BOP has failed to effectively protect inmates.

shredder200504In a suit against MDC Brooklyn, the report of the plaintiffs’ expert – Dr. Homer Venters – criticized the sick call request system, hygiene, and using temperature measurement to diagnose COVID-19. Of more concern, the report accused MDC Brooklyn of destroying records of inmate sick call. Dr. Venters, an epidemiologist specializing in disease in prisons, told the court he was “alarmed by the facility’s failure to implement simple procedures, in-line with the Center for Disease Control guidelines, that could identify patients ill with COVID-19, prevent the spread of COVID-19 throughout the facility, and ensure that high-risk patients receive adequate care.”

In a similar suit against the MCC New York, the warden complained to the court last Friday that the BOP should not permit a similar inspection of its facility by a plaintiff’s expert. “Allowing an inspector to enter MCC would not only raise the usual security concerns,” the warden said in a filing, “but would present particular concerns given the COVID-19 pandemic. One key element of BOP’s protocol in response to the pandemic is to limit to an absolute minimum the number of people entering the facility, as discussed above. Permitting an outside inspector to enter MCC would run counter to those efforts.”

In Ohio, where a federal judge ruled that the BOP’s operation of FCI Elkton amounted to an 8th Amendment violation, BOP lawyers argued last week that the measures Elkton took to curb the virus’s spread had been effective. In an emergency motion to the 6th Circuit for a stay of the district court’s order, the BOP contended that its COVID-19 containment “efforts have been working as the number of new cases has been reduced.” The 6th Circuit denied the BOP’s request for stay.

Pinocchio160812Writing in Forbes, Walter Pavlo said, “I’m not sure where the attorneys got their stats but according to the BOP’s own website that tracks (under-reports) COVID-19 spread showed a marked increase in cases. Between the judge’s order on April 22 and the government response with this claim on April 28, positive COVID-19 cases went from 566 to 1,313… so I’m calling that one a Pinocchio. In fact, since the BOP first started tracking the outbreak, the numbers have increased every day and they are going up at higher rates since more testing began.”

In the Elkton lawsuit, the BOP was forced by the judge to publish a list of inmates who were medically vulnerable to COVID-19. The list of 837 inmates, released on Thursday, amounted to half of the institution.

Meanwhile, The Dallas Morning News reported that FMC Ft. Worth, a “federal prison that houses sick and elderly inmates, has emerged as a COVID-19 hot spot, setting staff and inmates on edge and fueling controversy over how the prison system is handling the pandemic.” As of last night, FMC Ft. Worth had 445 inmate cases, with four dead.

But the worst outbreak is in California, at FCI Terminal Island, just south of Los Angeles. The prison’s 620 coronavirus cases followed mass testing of more than 1,000 inmates by Los Angeles County Public Health officials, according to the BOP. The facility now accounts for more than a third of documented federal prison inmates with the coronavirus.

USA Today, More than 1,500 federal prisoners now have COVID-19 as officials expand testing (April 29, 2020)

The New York Times, U.S. Federal Inmate Dies of COVID-19 Weeks After Giving Birth While on a Ventilator (April 28, 2020)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (May 1, 2020)

AP, Over 70% of tested inmates in federal prisons have COVID-19 (April 29, 2020)

NPR, ‘A Ticking Time Bomb’: Advocates Warn COVID-19 Is Spreading Rapidly Behind Bars (April 28, 2020)

Letter to Judge Mauskopf in response to Administrative Order 2020-14 (April 30, 2020)

Forbes, After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future (May 3, 2020)

Sens. Richard Durbin and Charles Grassley, Letter to DOJ Inspector General (April 21, 2020)

Declaration of Prof. Lauren Brinkley-Rubinstein, Dkt.38-1, Grinis v. Spaulding, Case No. 20cv10738 (D.Mass., filed April 27, 2020)

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

Chunn v. Edge, Case No. 1:20cv1590 (EDNY)

Fernandez-Rodriguez v. Licon-Vitale, Case No. 1:20-cv-03315 (S.D.N.Y.)

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

Dallas Morning News, 3 deaths and rampant infections at a Fort Worth lockup are fueling criticism of how federal prisons are handling the pandemic (April 29, 2020)

Los Angeles Times, Coronavirus outbreak at Terminal Island prison worsens: 5 dead, 600 infected (May 1, 2020)

– Thomas L. Root

The Circuits Nail Down First Step Section 404 Law – Update for April 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 COUPLE OF FAIR SENTENCING ACT DECISIONS…

The number of federal inmates with novel coronavirus has soared from 799 to over 1,300 in two days. But there was a lot to talk about before COVID-19 became the topic of the day, and while the courts have suspended oral arguments and motion hearings, they are still pumping out decisions.

crackpowder160606Brooks Chambers was convicted of a crack offense in 2003, and sentenced to 262 months as a Guidelines career offender. In 2019, he filed a First Step Act Section 404 motion for a sentence reduction. (Section 404 of the First Step Act made the provisions of the Fair Sentencing Act of 2010 retroactive). In his motion, he pointed out that the career offender enhancement was wrong, because one of the two crimes supporting it was later held by the 4th Circuit in United States v. Simmons not to apply. The guideline correction was made retroactive, but Brooks never bothered to apply to the court to have his sentence fixed.

The district court granted Brooks’ Section 404 motion, but refused to lift the career offender enhancement on the grounds that a Section 404 resentencing could not consider guidelines mistakes, only the difference in statutory punishment. The court adjusted his supervised release term, but not his prison sentence.

Last week, the 4th Circuit reversed. It held nothing in the First Step Act keeps courts from recognizing past Guidelines errors. “Section 404(b)… expressly permits the court to ‘impose a reduced sentence’,” the 4th said. “Not ‘modify’ or ‘reduce,’ which might suggest a mechanical application of the Fair Sentencing Act, but ‘impose’… And, when “imposing” a new sentence, a court does not simply adjust the statutory minimum; it must also recalculate the Guidelines range.”

Jason Holloway also filed a Section 404 motion, seeking a reduction of his 168-month crack cocaine sentence and his 10-year supervised release term. The district court applied the framework of 18 USC § 3582(c)(2) and Guideline 1B1.10, both of which require that the defendant show that the change in the law had lowered his Guidelines sentencing range.

Because Jason had been sentenced as a career offender, the district court concluded that even after application of the retroactive Fair Sentencing Act, his Guidelines range did not change. So the district court denied his Section 404 motion.

jailsuit200429Last week, the 2nd Circuit reversed. It held 18 USC 3582(c)(1)(B) – not (c)(2) – governed Section 404 motions. Therefore, Section 1B1.10 does not apply, and therefore, the fact that Jason’s guidelines did not change does not prevent a district court from considering a sentencing reduction. Plus, the fact that Jason had finished his sentence while his motion was pending did not prevent the district court from cutting the length of his term of supervised release to compensate for the lower sentencing range.

United States v. Chambers, 2020 U.S.App. LEXIS 13106 (4th Cir. April 23, 2020)

United States v. Holloway, 2020 U.S.App. LEXIS 13276 (2nd Cir. April 24, 2020)

– Thomas L. Root

BOP to Inmates: “Ooh, You Gotta Be Quicker Than That” on CARES Act Home Confinement – Update for April 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.

HOME CONFINEMENT RE-EXPLAINED YET AGAIN

cheese20042wEveryone thought that Attorney General William Barr was pretty clear in his March 26 and April 3 memos directing the BOP’s standards for emergency home confinement under The CARES Act. But, as I reported last week, the BOP moved the cheese, deciding that in addition to the AG’s standards, it should add the requirement that an inmate have served half of his or her sentence to be eligible for immediate home confinement placement.

By the way, everything indicates that by 50%, the BOP means one-half of the ENTIRE sentence, not just half of the 85% that nine out of ten inmates actually serve.

After a thundering herd of inmates already in quarantine were told to move back because they were not going home after all, the Dept of Justice muddied the waters last Wednesday even more, saying there was no 50% requirement at all.

The ink on that Wall Street Journal story wasn’t dry before a U.S. Attorney filed a letter in a New York in case admitting that yes, maybe there is a 50% requirement after all.

Without fanfare (which is how the BOP likes to do things, often making the agency its own worst enemy), the BOP issued an internal memorandum last Wednesday, directing that in deciding an inmate’s eligibility for CARES Act home confinement, some things are deal-breakers and some are only “sort of” deal-breakers.

priority200428For example the PATTERN score above a minimum does not exactly disqualify someone, but an inmate with a higher PATTERN score will not receive “priority treatment.” Conveniently, “priority treatment” – which sound more like an airline upgrade than an objective standard for prisoner placement – is nowhere defined. This leaves the BOP staff to read the tea leaves, and to simply deny CARES Act home confinement placement to anyone not entitled to “priority.”

On the issue of the 50%-of-sentence standard, the memo says

In addition, and in order to prioritize its limited resources, BOP has generally prioritized for home confinement those inmates who served a certain portion of their sentences, or who only have a relatively short amount of time remaining on those sentences. While these priority factors are subject to deviation in the BOP’s discretion in certain circumstances and are subject to revision as the situation progresses, at this time, the BOP is prioritizing for consideration those inmates who either have served 50% or more of their sentences, or have 18 months or less remaining on their sentences and have served 25% or more of their sentences.

Nothing is anathema to a bureaucrat like being told that he or she should exercise “discretion,” when the result of not exercising discretion is guaranteed to avoid criticism from above. Like Jim Boren said, “when in doubt, mumble.”

Politico noted that “the new standard opens the door to such releases for prisoners who have served at least 25% of their sentences and who have less than 18 months remaining on their term… Inmate advocates said the effect of the change would be modest, permitting the release of about 200 additional prisoners serving relatively short federal sentences.”

The BOP’s moving-target home confinement standards have ill served both the Bureau and the Department of Justice (with exactly which agency is the primary culprit remaining unclear). The Washington Post reported that “the early release of about 200 federal inmates to home confinement amid the coronavirus pandemic abruptly stalled earlier this week as the Bureau of Prisons and the Justice Department issued shifting, contradictory guidelines, interviews and documents show.”

quicker200428Seeming especially heartless – as only a bureaucrat can be – a number of inmates who had been told they were going home (and whose families were in some cases on the way to the prisons to retrieve them) were removed from prerelease quarantine were returned to cells. The Post said Friday that DOJ is saying that “the inmates will indeed be released, though others like them might face a harder time going forward,” although as of Tuesday morning, there is no indication that this is the case.

Even the judiciary is getting exasperated. U.S. District Judge Ronnie Abrams, seemingly frustrated with DOJ’s “ever-changing guidelines” to the BOP, last Friday ordered the immediate release of an inmate who had a high risk of contracting COVID-19 from FCI Danbury, which had yet to transfer her to home confinement as promised.

Law360 reported that Judge Abrams said the DOJ’s shifting guidance to the BOP regarding home confinement and compassionate release has eroded her confidence that inmate Haena Park would be released on April 30 as scheduled.

Politico, Feds again shift guidance on prisoner releases due to coronavirus (April 23, 2020)

BOP, Home Confinement (April 22, 2020)

Law360.com, Fraudster Freed As Judge Slams ‘Ever-Changing’ DOJ Advice (April 27, 2020)

Washington Post, Amid coronavirus pandemic, federal inmates get mixed signals about home-confinement releases (April 24, 2020)

– Thomas L. Root

Beaten Up On Its COVID-19 Response, BOP Announces More Testing – Update for April 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.

AFTER A PUNISHING WEEK, BOP ANNOUNCES WIDER COVID-19 TESTING

corona200313Last Wednesday, a U.S. District Court for the Northern District of Ohio judge ordered the release or transfer of hundreds of elderly and vulnerable inmates at FCI Elkton, which has seen a particularly deadly and widespread outbreak of the coronavirus.

The ruling Wednesday from Judge James Gwin appeared to be the first that could lead to a group release of federal inmates as a result of the ongoing COVID-19 pandemic.

Gwin said he was granting a preliminary injunction because efforts to combat the virus at Elkton were failing. Six inmates there infected with the virus have died in recent weeks, with 59 inmates and 48 staff confirmed cases.

But with fewer than 100 of the 2,400 inmates at Elkton tested, the actual infection rate could be much higher, the judge said, calling the lack of testing at the prison a “debacle,” especially compared with Marion Correctional Institution, a state prison 80 miles west of Elkton that conducted thousands of inmate tests after 17 confirmed cases (and found over 2,000 inmates had the COVID-19 virus without symptoms). In a North Carolina state prison, more than 90% of the 458 infected inmates displayed no common symptoms.

The Elkton lawsuit also cited the dormitory-style design of most minimum and low prisons where inmates live in close proximity to one another.

The Elkton decision came the same day a federal court rejected a similar class-action habeas corpus case brought on behalf of prisoners at FCI Oakdale, ruling that the Prison Litigation Reform Act foreclosed the court from offering the same relief Gwin granted in the Ohio case. What the Oakdale plaintiffs sought, the Western District of Louisiana court held, “falls squarely within BOP’s authority and outside the purview of this Court… To rule otherwise would make this Court a de facto ‘super’ warden of Oakdale.”

plague200406The Bureau of Prisons’ efforts to combat the coronavirus are not failing only at Elkton. A month ago, the BOP reported a mere 10 inmates and 8 staff ill with COVID-19, in nine facilities. As of last night, the Bureau admitted to 799 inmates and 319 staff being sick. A month ago, no one had died. As of last night, 27 inmates and one staff member had perished, the latest four from FCI Milan and FMC Ft. Worth.

The public criticism of the BOP’s COVID-19 response is getting louder. A Southern District of New York federal judge slammed the Bureau last week for “illogical” and “Kafkaesque” quarantine policies that she says put inmates and the community at greater risk of contracting coronavirus. Judge Alison Nathan said of the BOP’s practice of putting inmates approved for home confinement into pre-release quarantine, “Community spread through individuals not showing symptoms is inevitable, including in units of inmates who have been approved for home confinement. This is an illogical and self-defeating policy that appears to be inconsistent with the directive of the Attorney General, ungrounded in science, and a danger to both [the defendant] and the public health of the community.”

The wardens of federal prisons MCC New York and MDC Brooklyn reported in a court filing last Friday that 19 out of over 2,400 inmates have been tested for COVID-19. Only three inmates have been tested in the last three weeks. The warden of FDC Philadelphia admitted in a court filing that not a single test had been administered there.

math200427The Appeal reported that at FCI Ft. Dix (New Jersey) while 12 prisoners were confirmed to have COVID-19 as of April 23rd (the total as of last night was 29), “the only inmates that are being tested to see whether they have COVID are the ones who are being carried out on stretchers,” according to appellate attorney Matthew Stiegler. “Getting testing available to inmates and guards is critical to managing what seems to be an outbreak there, he said.”

The Fort Worth, Texas, Star-Telegram reported that despite a COVID-19 outbreak at FMC Ft Worth, no testing had been conducted.

Forbes summed up the problem: One is unable to monitor the effectiveness of the BOP COVID-19 response

because of a lack of testing and ‘presumed positive’ inmates not being recorded at all. As an example of “Presumed positives,” assume there are ten (10) inmates in a room and one has a high temperature and is taken to the local hospital where she tests positive for COVID-19. While that inmate is at the hospital, five other inmates start to have symptoms but are not taken to the hospital because their cases are not as severe. Those inmates are “presumed positive,” quarantined from other inmates in the compound, but not reported on the BOP’s COVID-19 web page.

Gwin wrote in his Elkton order that the BOP has acted with “deliberate indifference” – a term with 8th Amendment significance – by not sufficiently testing inmates. Forbes asked, “So what is the real number of inmates in federal prison that have been infected? According to science, you can expect it to hit 177,000, the total number of inmates in federal prison. It is simply not possible to conclude otherwise given the facts.”

Besides that, as the Charlotte, North Carolina, Observer reported a week ago, the BOP’s case tracking does not include privately run prisons holding federal prisons. NC Central University law professor Irving Joyner told the newspaper that lack of reporting out of privately-run federal prisons is another example “of dereliction of duty as it relates to the safety of that population that’s incarcerated by our government.”

Perhaps in response to the public and judicial whipping the agency was suffering last week, the BOP announced on Thursday it would “expand testing to seek out previously hidden asymptomatic inmates in an attempt to control the spread.”

covidtest200420“Asymptomatic inmates who test positive for COVID-19 can transmit the virus to other inmates,” the agency said, observing the obvious. “Expanding the testing on asymptomatic inmates will assist the slowing of transmission with isolating those individuals who test positive and quarantining contacts… The deployment of these additional resources will be based on facility need to contain widespread transmission and the need for early, aggressive interventions required to slow transmission at facilities with a high number of at-risk inmates such as medical referral centers.”

As a matter of pre-emptive defense, the BOP warned that the new tests will “increase the number of COVID-19 positive tests reflected on the BOP’s COVID-19 resource page on the agency’s public website.”

Politico, Judge orders transfer or release for some inmates at virus-wracked Ohio federal prison (April 22, 2020)

Forbes, Federal Judge In Ohio Says FCI Elkton Meets “Cruel And Unusual Punishment” Standard (April 23, 2020)

Wilson v. Williams, 2020 U.S. Dist. LEXIS 70674 (N.D.Ohio April 22, 2020)

Livas v, Myers, 2020 U.S. Dist. LEXIS 71323 (W.D.La. April 22, 2020)

Cleveland Plain Dealer, Why has Ohio’s Marion prison become the number-one coronavirus hotspot in the United States? (April 22, 2020)

Politico, Judge rips feds over prison quarantine policies (April 20, 2020)

Philadelphia Inquirer, One Philadelphia prison has yet to report a single case of the coronavirus. But it hasn’t tested any inmates (April 22, 2020)

The Appeal, Coronavirus Is Ready To Explode Inside Fort Dix Federal Prison, Incarcerated People And Their Loved Ones Say (April 23, 2020)

Fort Worth Star-Telegram, Sick, elderly and fearing coronavirus: Life inside Fort Worth’s women’s federal prison (April 20, 2020)

Forbes, Bureau Of Prisons Had A Response Plan For A Pandemic But Delayed Action (April 23, 2020)

Charlotte Observer, A second federal prison in NC has coronavirus cases, and U.S. officials aren’t tracking it (April 19, 2020)

Bureau of Prisons, BOP Expands COVID-19 Testing (April 23, 2020)

– Thomas L. Root

BOP Does Not Apply 50% Standard to Home Confinement… Except When It Does – Update for April 24, 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.

ARE WE STRAIGHT ON THIS?

Seems like it was only a few days ago that BOP staffers were wandering through quarantine units, telling inmates who had been told that they were a few days from leaving to do the rest of their sentences in home confinement that, “oops, guess we’re wrong, you haven’t done 50% of your sentence yet, so you’re going nowhere.”

flipflop170920The sudden flip-flop in policy, engrafting a new restriction to the criteria for CARES Act home confinement, was cited last Monday in a filing in a Southern District of New York compassionate leave proceeding. The U.S. Attorney, having told the court a few days before that the defendant, Lewis Stahl, was eligible for CARES Act placement, withdrew the advice, telling the court that a new Dept. of Justice directive to the BOP prohibited home confinement placement to anyone who had not served at least 50% of his or her sentence.

Judge Ronnie Abrams was not amused. He promptly entered an order:

The Court is in receipt of the Government’s letter indicating that, in light of “new guidance” just issued to the Bureau of Prisons (BOP) by the Department of Justice (DOJ), the BOP now anticipates that Mr. Stahl is no longer eligible for home confinement or a furlough. Given the fact that the Government previously informed the Court that the BOP had already approved Mr. Stahl’s request for home confinement, and the U.S. Probation Offices in both the Southern District of New York and the Southern District of Florida had already approved his relocation request, the Government is hereby directed to provide the Court with an explanation from the BOP, including by way of affidavit from the appropriate representative, as to how the new DOJ guidance can affect these prior decisions. The Government shall do so no later than 5:00 p.m. on Wednesday, April 22, 2020. The Government shall also file a copy of the new DOJ guidance on the docket by that time. If it still does not have a copy of the new DOJ guidance by 5:00 p.m. on April 22nd, it shall provide the Court with additional details about the guidance including when it went into effect and who it applies to, as well as when it will be submitted to the Court.

On Wednesday, a BOP employee at FMC Devens echoed the government’s claim that an inmate must have served 50% or more of his or her sentence in order to qualify for home confinement placement under the CARES Act, in a declaration filed by the government in a Massachusetts case seeking an injunction to release inmates from the Federal Medical Center due to COVID-19.

confusion200424The government did not get around to responding to Judge Abrams until late yesterday. Before that, the Wall Street Journal reported in the morning that a DOJ spokesman had said on Wednesday “that federal prison officials could consider inmates for early release even if they haven’t yet served half of their sentences, clarifying a shifting policy that has sown confusion across the nation’s prisons and courts in recent days.”

The Journal reported that “Dozens of inmates who had been granted early release as part of an effort to stem the spread of the coronavirus were told this week they hadn’t served enough time to qualify, according to prisoners and court filings. Inmates, prosecutors and federal judges demanded prison officials explain their rules and criteria for releasing inmates during the pandemic.

The DOJ spokesman reportedly said the BOP “intends to expeditiously transfer all inmates to home confinement who were previously referred” for placement, “as long as such transfers aren’t forbidden by law or criteria set forth by Attorney General William Barr. More prisoners are approved for home confinement every day, the spokesman said.”

OK, you have it so far. The 50% standard did not apply, then it did apply, and now it does not apply again.

Then, last night at 5 pm, the U.S. Attorney in the New York case filed a rambling, boilerplate-laden declaration of an FCI Miami associate warden that nowhere directly answered Judge Abrams’ questions. But it did provide this interesting explanation of the BOP home confinement criteria:

[T]he BOP is currently assessing a number of factors to ensure that an inmate is suitable for home confinement including, but not limited to, reviewing the inmate’s institutional discipline history for the last twelve months; ensuring that the inmate has a verifiable release plan; verifying that the inmate’s primary offense is not violent, a sex offense, or terrorism related; and confirming the inmate does not have a current detainer…

[I]n order to prioritize its limited resources, BOP has generally prioritized for home confinement those inmates who have served a certain portion of their sentences, or who have only a relatively short amount of time remaining in those sentences. While these priority factors are subject to deviation in BOP’s discretion in certain circumstances and are subject to revision as the situation progresses, BOP is at this time prioritizing for consideration those inmates who either (1) have served 50% or more of their sentences, or (2) have 18 months or less remaining in their sentences and have served 25% or more of their sentences. As BOP processes the inmates eligible for home confinement under these criteria and learns more about the COVID-19 pandemic and its effect on BOP facilities, it is assessing whether and how to otherwise prioritize consideration.

spincycle200424It is now crystal clear: the 50% standard did not apply until last Monday, at which time it did apply until Wednesday, after which time it did not apply until yesterday, at which time it sort of applies (50% plus people are “prioritized,” whatever that means to the BOP).

At least all of that is resolved.

The Wall Street Journal, Confusion Hampers Coronavirus-Driven Inmate Releases (Apr. 23)

United States v. Stahl, Case No. 18 Cr. 694 (SDNY), Declaration attached to letter filed by U.S. Attorney (April 23, 2020)

Grinis v. Spaulding, Case No. 1:20cv10738 (D.Mass.), Declaration attached to Respondents’ Omnibus Response, Dkt.32-2 (filed Apr. 22, 2020)

– Thomas L. Root

DOJ Moves the Cheese on Home Confinement – Update for April 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.

DEPT OF JUSTICE (NOT THE BOP) MOVES THE CHEESE ON CARES ACT HOME CONFINEMENT

The authority granted to the Federal Bureau of Prisons to designate home confinement for prisoners during the COVID-19 pandemic took another hit yesterday, in an especially callous announcement of additional restrictions that literally stopped some prisoners as they were about to get into cars to return home.

cheese20042wIn an affidavit filed in a Louisiana case against FCI Oakdale earlier this month, an associate warden from that facility reported that the BOP was considering inmates for placement in home confinement without regard to the amount of sentence the inmate had served. Last week, in an undated internal guidance memorandum, the BOP directed staff that if the inmate otherwise met the home confinement criteria, other factors – including the “percentage of time served” – “should be noted, but are not a reason for denial.”

However, as Politico reported last night, BOP staff told inmates in various prisons who had been put into prerelease quarantine almost two weeks ago that the policy had changed. Now, an inmate must have completed 50% of his or her sentence to be eligible for CARES Act home confinement.

FAMM immediately sent a letter to Attorney General William Barr, blasting the BOP for its “downright cruelty.” FAMM president Kevin Ring wrote that for families of inmates “to have the promise of early release snatched away under these circumstances is simply inexcusable. They deserve to know what is happening. Even before yesterday’s outrageous bait-and-switch, we were growing concerned with the BOP’s response to this crisis. We have received numerous reports about case managers and counselors giving incorrect information and contradictory answers to people exploring early release options…”

It turns out, however, that the wrong actor may be getting the blame. In a letter filed in an inmate’s compassionate release motion proceeding on Monday, the U.S. Attorney corrected the government’s previous advice to the court that the inmate was eligible for CARES Act consideration:

The Bureau of Prisons (“BOP”) advised the Government this afternoon that the Department of Justice (“DOJ”) has just issued new guidance to the BOP requiring that an inmate serve at least fifty percent of his or her sentence in order to be eligible for placement on home confinement. Based on the new guidance, the BOP anticipates that Stahl, who has served approximately 23% of his sentence, will not be eligible for home-confinement placement at this time. With respect to Stahl’s application for compassionate release, the BOP has advised that Stahl’s application, which the BOP received on April 3, remains under review and the BOP anticipates reaching a decision on it prior to the expiration of the 30-day period set forth in Section 3582(c)(1)(A).

In a footnote, the government admitted that it “has not yet seen a copy of the new DOJ guidance, but the U.S. Attorney’s Office was advised of it by the BOP today in other cases as well.”

So the culprit is Barr’s DOJ in this one, not the BOP. Assigning blame hardly matters to the hundreds of inmates affected by the sudden change, just as it hardly means that there isn’t plenty of other blame to spread around.

movingtarget200422Yesterday, Forbes magazine blasted the BOP for its muddled handling of the CARES Act home confinement program, complaining that “inmates around the country have been informed by case managers at each facility about the existence of a ‘list’ of inmates that could be sent home to some sort of Home Confinement to complete their prison term. However, the parameters of that ‘list’ and who is eligible has been something of a mystery as have the rumors of mass release of inmates across the country… it just has not happened.”

Forbes noted that one such rumor, that everyone at FCI Otisville camp was going to home confinement, was debunked by a BOP statement:

We would like to clarify the rumor that has recently been circulating about the purported closure of satellite camp at FCI Otisville. This information is not true. The majority of inmates at the satellite camp at FCI Otisville began transferring into the main institution (a medium security facility) … Many of these inmates are minimum security and minimum risk of recidivism, which are qualifications under the Attorney General’s guidance to BOP. Staff at Otisville are currently reviewing all inmates for their suitability for home confinement or furlough. Some of these inmates may not ultimately qualify but by proactively moving the inmates into quarantine now, eligible inmates will be able to release form the institution sooner.

Forbes concluded that “If you are not confused, you should be!” Yes, confused and disheartened. But the blame for moving the 50%-completion cheese apparently lies with DOJ, not BOP.

Politico, Trump administration reverses prisoner coronavirus release policy, advocates say (April 21, 2020)

FAMM, Letter to Attorney General William Barr (April 21, 2020)

United States v. Stahl, Case No. 18 Cr. 694 (SDNY), Letter filed by US Attorney (April 20, 2020)

Forbes, Lack Of Direction From Bureau Of Prisons Showing In Federal Court (Apr 21)

– Thomas L. Root

BOP Rewrites Standards for CARES Act Home Confinement – Update for April 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.

INTERNAL MEMO TOUGHENS CARES ACT HOME CONFINEMENT STANDARDS

slowroll200421A recently-released prisoner complained to a TV station that FCI Butner was “slow-rolling” COVID-19 releases. A 76-year old federal prisoner told the Wall Street Journal that so far has been unable to convince officials to release him despite his age and history of respiratory problems. “It’s like pushing a wet noodle up the hill with your nose,” he said said. An attorney representing the plaintiffs in the FCI Oakdale lawsuit complained last Monday that only three Oakdale prisoners have been given CARES Act releases. The Houston Chronicle said last Thursday that “as the coronavirus crisis raises concerns about mass infections at prisons and jails, few federal prisoners from southeast Texas have cleared the gauntlet for compassionate early release.”

A lot of criticism. And what does the BOP say in its defense?

The BOP says it has been releasing inmates at a prodigious rate, with more than 1,119 sent to home confinement as of last Wednesday. Most recently, the entire population of FCI Otisville camp (111 inmates) was sent to quarantine in preparation for release to home confinement.

But those who suggest that the BOP talks one game while playing a different one might point to an internal guidance memorandum the BOP issued to its staff last week, one that restricts those who can go to home confinement well beyond what Attorney General Barr directed.

bureaucrat200421In an affidavit filed in the Western District of Louisiana, an FCI Oakdale Associate Warden reported that “on April 15, 2020 we received a memorandum from BOP’s Correctional Programs Division, confirming the factors to be used when reviewing and referring inmates for home confinement. These factors remain: 1) Primary or prior offense is not violent; 2) Primary or prior offense is not a sex offense; 3) Primary or prior offense is not terrorism; 4) No detainer; 5) Mental Health Care Level is less than IV; 6) PATTERN… score is Minimum; 7) No Incident Reports in the past 12 months; 8) US Citizen; and 9) have a viable release plan.”

The BOP criteria are more restrictive than what Barr specified in his March 26th and April 3rd memos. Barr only made violence, sex or terrorism disqualifying if any of those was present in the offense of conviction, the crime for which the inmate is now serving time. Plus, Barr did not outright disqualify for an incident report in the past year, or a PATTERN score above minimum. Rather, his memo merely said that such factors “would not [be] receiving priority treatment,” implying that they would be weighed against other factors.

The AG directed the BOP that “in assessing which inmates should be granted home confinement pursuant to this Memorandum, you are to consider the totality of circumstances for each individual inmate, the statutory requirements for home confinement, and the following non-exhaustive list of discretionary factors…” But that would require that the BOP make individualized judgments, and God forbid a bureaucrat would have to make a judgment that could boomerang on him or her.

rachet200421By making any incident report in the last year disqualifying, the BOP places possession of a cellphone (a “107” infraction) on the same plane with grabbing an extra kiss from your spouse in the visiting room (a “409” infraction). By deciding that any prior crime of violence is disqualifying, the BOP equates rioting last year with throwing a punch at a bar 40 years ago. What’s worse, the BOP believes that possessing a gun during a drug offense – even if the gun was never handled or displayed – is a crime of violence.

It’s a great substitute for actually thinking, and it hardly represents considering “the totality of the circumstances,” but it makes things easy for BOP staff. At the same time, it  makes the likelihood of CARES Act home confinement for anyone other than a camper problematical. At FCI Elkton, only six inmates have been approved for home confinement, while 32 medically-eligible inmates have been denied. At Oakdale, of 68 inmates who are 65 years old or older, 75% are ineligible. Only six of the remaining inmates have gone to home confinement.

That 85-year old wheelchair-bound inmate who was convicted of a barroom assault back in 1956? Well, he can take his chances on COVID-19 inside…

WRAL-TV, Raleigh, N.C., Former inmate says Butner officials ‘slow-rolling’ prisoner releases during pandemic (Apr. 14)

WCTI-TV, New Bern, N.C., Ex-Trump lawyer Michael Cohen to serve out prison sentence at home (Apr. 17)

Houston Chronicle, ‘Crammed in’ and terminally ill: Prison officials drag their feet as vulnerable inmates seek release (Apr. 17)

Livas v. Myers, Case No. 20cv422 (WDLa), Declaration of Juan A. Segovia, filed Apr 16, 2020, Dkt 14-1

– Thomas L. Root

Reports Call Results of Bureau of Prisons’ COVID-19 Management “Tragic” – Update for April 20, 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 CURVE NOT FLATTENING IN BOP

The Federal Bureau of Prisons is now in “Phase 6” of its plan to curb the spread of COVID-19 among its 172,000 inmates housed in 122 institutions. Phase 6 (the BOP prefers the Roman-numeraled “Phase VI” for reasons as obscure as the NFL’s use of such numerals for Super Bowls) looks an awful lot like Phase V… it just lasts longer. This Phase (and the lockdowns) will last until May 18, 2020.

covidcurve200420
Forbes magazine, BOP COVID-19 cases as of April 15, 2020

As Forbes magazine put it last Wednesday, “BOP’s efforts thus far have included halting social and legal visits since the middle of March, screening of inmates, staff and contractors by taking their temperature to measure infection, mobilizing administrative staff to step into front line positions, increase rate of hiring new corrections officers and halting staff training. The results have been tragic.”

As of Sunday night, there are 495 inmates (up 41% from last week) and 305 staff (up 61% from last week) ill with COVID-19 in 45 institutions (more than one-third of all BOP facilities). At least 22 inmates have died, the latest at FCI Terminal Island yesterday. Business Insider reported on Saturday that a BOP case manager from USP Atlanta died last week in her home of COVID-19.

The federal government’s COVID-19 strategy has been to “flatten the curve,” to spread out the spike in coronavirus cases so as not to overwhelm hospital capacity and resources. But, as Forbes notes, no

epidemiologists modeling the crisis ever envisioned the systemic failure that would expose 177,000 inmates housed in multiple institutional clusters, some numbering over 5,000 inmates, to a COVID-19 outbreak. These failures are resulting from a lack of a widespread testing protocol at institutions, the continued transfer of inmates between institutions, the introduction of new inmates who are either arrested or self-surrender and the thousands of staff and contractors that go in and out of these institutions.

The problem that has led to the continuing skyrocketing BOP COVID-19 cases is simple: the BOP has been unable or unwilling to test any inmates “except those who have died or are willing to risk fellow inmate retribution by revealing themselves to be symptomatic. Forbes reports that “more inmates are sick than the BOP is reporting and more inmates are not reporting that they are sick out of fear of being identified as sick.”

covidtest200420This is probably so. As of Sunday night, for example, FCI Elkton reported 50 inmates sick with COVID-19. But last Friday, the BOP admitted in federal court that Elkton has 207 suspected inmate COVID-19 cases, but only had ever received 80 test kits. It has used 37, leaving only 43 on hand. It expects to receive an additional 25 kits a week for the next several weeks. “We have very, very limited amounts of the testing kits,” Brandy Moore, secretary treasurer of the national union that represents correctional officers in federal prisons, was quoted as saying by Mother Jones magazine last week.

At FCC Terre Haute, Indiana, “we have between 2,500 and 3,000 inmates, and we were given four tests,” Steve Markle, another leader of the national union who works at the prison, told Mother Jones in late March. At FCI Oakdale, correctional officers were told to stop testing people and just assume that anyone with symptoms had been infected, according to Ronald Morris, president of the local union there — even though, as shown by the Arkansas state prison experience we cited last Wednesday, plenty of people can be asymptomatic.

statistics170104All of this, Mother Jones reported, “is to say that statistics reported by the Federal Bureau of Prisons are likely massive undercounts. “Our numbers are not going to be adequate because we’re not truly testing them,” Moore said.

Meanwhile, in a filing in the Eastern District of New York on April 9, the BOP admitted that “‘because of the shortage of tests, testing is currently reserved for those meeting’ certain criteria, including the kind of symptoms the inmate is facing, his potential exposure, whether he is high risk and whether he works in a high-contact role such as food service.” Through Thursday, April 16, the number of inmates tested at MCC New York and MDC Brooklyn has risen from 11 to 19. That is out of a combined population of over 2,300 inmates.

The ACLU has filed lawsuits in Louisiana against FCI Oakdale, Massachusetts against FMC Devens, and Ohio against FCI Elkton, seeking to compel release of more inmates because of the virus. “”Devens — one of only seven federal prison medical centers — is a powder keg of potential infection and death from COVID-19, to an even greater degree than nursing homes, cruise ships, and other prisons, sites of some of the most intense clusters of mortality in donegood200420Massachusetts, the United States, and elsewhere in the world,” the plaintiffs’ lawyers wrote in the District of Massachusetts complaint.

“We’re dealing with it just as well as anybody else,” BOP Director Michael Carvajal told CNN a week ago, “and I’d be proud to say we’re doing pretty good.”

Forbes, Federal Bureau of Prisons Institutions Not Showing Any Signs of “Flattening Curve” (Apr 15)

Business Insider, The Federal Bureau of Prisons has confirmed the first staff death linked to the coronavirus, report says (Apr 18)

Wilson v. Williams, Case No. 4:20cv794 (N.D.Ohio), Supplement to Respondents’ Answer, Dkt. 19, filed Apr 18, 2020

New York Law Journal, Brooklyn Federal Lockup Officials Describe ‘Shortage of Tests’ in Newly Filed Documents (Apr 15)

CNN, Exclusive: ‘I don’t think anybody was ready for this Covid,’ says head of federal prisons (Apr 10)

– Thomas L. Root