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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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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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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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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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

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