7th Circuit Says ‘Follow Us, Not the Science’ in Compassionate Release Denial – Update for February 14, 2022

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7TH CIRCUIT RAISES THE BAR (AGAIN) ON COVID COMPASSIONATE RELEASES

Junk Science210707The 7th Circuit has already handed down the scientifically dubious holdings that a prisoner who has gotten the vaccine should not be allowed to take advantage of 18 USC § 3582(c)(1)(A)(i) compassionate release based on COVID dangers because “published data do not establish or imply an incremental risk for prisoners — either a risk of contracting the disease after vaccination or a risk of a severe outcome – if a vaccinated person does contract the disease” and that prisoners who have access to a vaccine cannot use the risk of COVID for compassionate release “unless they can demonstrate that they are medically unable to receive or benefit from the available vaccines.”

Last week, the Circuit went even further. Christopher Barbee appealed the denial of his compassionate release motion based on COVID risk factors and made a showing he remained at risk even after being vaxxed. Given the current number of breakthrough COVID cases in vaccinated people, it’s an argument that’s got some weight behind it.

But the 7th shot him down, holding that “although Barbee contends that he remains at risk as the COVID-19 situation continues to evolve, he has not presented any evidence establishing that he is more at risk for an adverse outcome in prison than he would be if released.”

So now prisoners in the 7th not only have to show prison is a dangerous place for COVID – and the stats say the COVID rate is four times the rate in prison than it is on the street, with one out of three BOP inmates having tested positive for COVID – but they have to show that home is much safer.

noplacelikehome200518Home is not any safer than prison. That is, if you live at home with 150 other people in one big room and you have workers coming in from the community three times a day. But for anyone else, home being safer than prison is an argument that’s self-evident.

It doesn’t matter in the 7th Circuit. Call it ‘Circuit 1, Science 0,’

United States v. Barbee, Case No 21-1356 (7th Cir., Feb. 11, 2022)

Fort Worth Star-Telegram, Man is 16th to die from COVID-19 at Fort Worth prison; cases spike at women’s facility (Dec. 30, 2021)

– Thomas L. Root

Some BOP Shorts – Update for February 11, 2022

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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.

Today, we offer a few short takes from the Federal Bureau of Prisons

judge160425BOP Sued: The Public Defender Service for the District of Columbia last week sued the BOP, alleging “unequal and discriminatory treatment” of DC inmates sentenced in the DC Superior Court. In the case, filed as a class action, the plaintiffs contend the BOP scores the criminal histories of DC prisoners more harshly than the criminal histories of federal prisoners.

Since the 1997 federalization of DC’s criminal system, DC felony offenders have been placed in BOP custody to serve their sentences at federal prisons all over the country. As a result of the BOP’s criminal history scoring practices, the plaintiffs say, DC prisoners are held in higher security, have fewer programming opportunities, and are less likely to get home confinement or compassionate release.

Blades v. Garland, Case No 22-cv-00279 (D.D.C., filed February 3, 2022)

BOP Panel Recommends Sex Reassignment Surgery: The BOP Transgender Executive Council (TEC) last week recommended that a 47-year-transgender female receive sex reassignment surgery, according to documents filed a week ago in the U.S. District Court for the Southern District of Illinois.

“Assuming she does not engage in behavior that would prevent her from continued placement in a female facility and assuming further that no other reasons develop that would make gender confirmation surgery inappropriate,” the filing noted, “the TEC does expect plaintiff to be referred to a surgeon at the appropriate time.”

The referral will come after the inmate is transferred to a new facility in March.

The Hill, US Bureau of Prisons recommends inmate receive historic gender-affirming surgery (February 3, 2022)

Fight Lockdown of BOP Lifted: The BOP announced Monday that it was ending the nationwide lockdown of its facilities, gradually easing the restrictions at sites where officials determined there was no longer a threat.

prisonfight220211In a rare move, the BOP had locked down all of its 122 facilities as a result of a fight at USP Beaumont involving members of central American gang MS-13 and members of the Mexican organized crime-linked game Surenos. MS-13 members reportedly killed two Surenos and severely injured a third. The affiliation of the fourth prisoner, who was wounded, was not reported.

On Monday, the Bureau said it was returning “select facilities to the appropriate modified operational status” as part of a “tiered response” that would lift restrictions elsewhere as officials decided it was safe to do so. About 30 facilities came out of lockdown on Tuesday, with more being added throughout the week.

The week before, BOP employees received a notice that “effective January 31, 2022, the Federal Bureau of Prisons was placed on a National Lock-Down [sic]. The lock-down was initiated out of an abundance of caution due to current events which occurred at another facility. This order is to ensure the safety and security of all staff and inmates.”

The New York Times said, “Officials worried that the deadly fight would set off violence at other facilities, according to a person briefed on the bureau’s decision, who spoke on the condition of anonymity to discuss a continuing investigation.”

The Washington Post reported that lockdown was a “dramatic step [that] sparked some anger among inmates and their relatives, who felt it was overly broad.”

BOP Director Michael Carvajal told the House Subcommittee on Feb. 3, “We needed to find out what’s going on. I won’t get into specific operational things, but the groups involved, there’s approximately 2,500 in our custody spread throughout the agency. We need to make sure that we separate them and secure them. I’m hoping that the lockdown will be short-lived. We do not like keeping inmates again in their cells and we will do our best to get them out.”

The Times noted that “the violence was… in keeping with troubles that have long plagued the Bureau of Prisons. This year alone, the bureau has announced four inmate deaths and three escapes, as it continues to struggle with staff shortages, health issues stemming from Covid-19, violence, mismanagement and employee misconduct.”

Washington Post, Bureau of Prisons starts to lift nationwide lockdown (February 7, 2022)

Forbes, Federal Bureau Of Prisons On National Lockdown After Deadly Fights at USP Beaumont (February 2, 2022)

The New York Times, Fatal Gang Fight Spurs Nationwide Lockdown of Federal Prison System (January 31, 2022)

– Thomas L. Root

How Much of a ‘Mulligan’ Should a Resentenced Defendant Get – Update for February 10, 2022

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DO-OVER REQUIRED

mulligan190430Javier Fuentes-Rodriguez illegally reentered the United States after having been previously convicted of an aggravated felony. Such reentry violates 8 USC § 1326(b)(2). Javier got 30 months in prison. While his appeal was pending, the Supreme Court decided Borden v. United States, which held that any crime that could be committed recklessly did not fit the “crime of violence” definition, which requires purposeful action.

Before Borden, Javier’s prior felony – Texas family violence – had been considered “aggravated” under 18 USC § 16(b). But it is possible to commit Texas family-violence assault recklessly, and after Borden, the government and Javier agreed he was only guilty of illegal reentry after a non-aggravated assault (8 USC § 1326(b)(1)).

What’s the difference? There’s no difference in the Guidelines necessarily, but – as the 5th Circuit put it – “1326(b)(2) is associated with worse collateral consequences than 1326(b)(1).” What that means is that if Javier is convicted for unlawful reentry after committing an “aggravated felony,” he can never come back legally.

Javier and the government agreed that after Borden, his conviction under 1326(b)(2) had to be changed, but the question was how to change it. Javier wanted the case remanded, at which time the judge could presumably give him a much better sentence, departing downward if the judge chose to do so. The government simply wanted the sentence reformed by the 5th Circuit, changing the number of the statute of conviction without changing the sentence.

violence151213Javier’s position made some strategic sense for the defense. It’s possible (even if improbable) that the judge’s sentence was influenced because of her perception Javier had slapped around his wife (or whatever the facts were). A resentencing would let Javier’s lawyer argue something like, “See, it wasn’t so bad.” Even if that argument had not worked, the defense is always entitled to argue the defendant’s excellent prison record as a factor to mitigate a new sentence.

Would it have worked? We’ll see. Last week, the 5th Circuit remanded the case. “We acknowledge that in [a similar case], our court reformed the judgment directly rather than remanding for entry of an amended judgment by the district court, and we could do the same here, coming to the same result,” the 5th held. “However, due to the frequent use of district court judgments of conviction by judges, attorneys, and others, we find remanding this case for entry of an amended judgment will reduce the risk of future confusion.”

United States v. Fuentes-Rodriguez, Case No 15-40740, 2022 U.S. App. LEXIS 551 (5th Cir., Feb 3, 2022)

– Thomas L. Root

“It’s a Miracle!” People Say, as BOP Cures 2,000 Inmates in One Day – Update for February 8, 2022

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MIRABILE DICTU

Miracle200513That is, “speaking of wonders…”

Medicine has not seen such an achievement in two millenia: between last Wednesday and Thursday, the BOP cured almost 1,968 inmates of COVID. COVID numbers, totaling 7,787 sick prisoners on January 28 had dropped to 5,581 as of last night.

Of course, if this were a real medical miracle, you’d expect the number of institutions with COVID to fall, and staff cases to decline as well. No such luck. Staff with COVID increase 152 to 2,057, and the number of institutions with outbreaks total 131. As of last weekend, Oakdale II has 397 cases, Yazoo City USP 277, FCC Lompoc has 223, and Oakdale I has 214. Twelve more locations have more than 100 sick, and 14 more have over 50. A full 86 prisons have 10 or more inmate COVID cases.

While the BOP does report daily infection tallies for each of its facilities, experts say those counts likely miss a large number of infections. Stat said the BOP does not report granular enough testing data to calculate so-called test positivity rates, a measure often used in public health to estimate what percentage of a population likely has Covid-19, given not every person in a community is typically tested at one time.

numbers180327What’s more, the BOP’s declaring inmates “recovered” from COVID has by now become a sad joke. Of the 53 BOP inmates who have died from COVID since March 1 of last year, the BOP had previously declared 53% to be “recovered.” Epidemiologist Homer Venters, M.D., has cautioned against the very questionable BOP practice:

People that tested positive, let’s say three, four weeks ago, may be considered recovered or not part of active cases…When you kind of wave a wand over people and say they’re recovered, my experience going into jails and prisons is many of them are not actually recovered. Many of them have new shortness of breath, chest pain, ringing in the ears, headaches. Other very serious symptoms.

The problem is systemic. “On his first day in office, President Biden promised to order the BOP to reevaluate its Covid-19 protocols and release additional data on the spread of the virus in prisons. But that specific order never came,”  Stat said last week. “And now, as Covid-19 is spiking in multiple federal prisons around the country, spurred by the Omicron variant and still-substandard infection control, advocates say that the BOP’s Covid-19 protocols are as broken as ever.”

Stat said that at Danbury, “it’s not just Omicron driving the surge. There were 234 new cases in a population of roughly 1,000 people during the month of January, according to data compiled by a team at the University of Iowa, but there’s no frequent testing and those in quarantine aren’t being monitored for worsening symptoms.”

inhumanecovidinmate220124And at Alderson, Stat quoted an attorney for inmates at FPC Alderson as saying the situation there is worse, although there’s even less information accessible. Available data suggest that Alderson experienced serious spikes in new Covid-19 cases during both late December and late January. The lawyer said there are likely more women with COVID in the facility than the available data show, because the facility is not testing widely.

The Fort Worth Star-Telegram was blunt: “Two years into the pandemic, federal prisons — including one in Fort Worth — still do not have COVID-19 under control. Executive staff at federal prisons are failing to follow the Bureau of Prisons’ COVID-19 response plan, according to a federal report. FMC Carswell, a women’s medical prison in Fort Worth, does not have a facility-specific plan, employee union representatives said… ‘It’s been pure chaos,” [one inmate,] who is incarcerated at the prison, said. “Carswell is still without a plan.”

Jennifer Howard, president of the union representing more than 400 FMC Carswell employees, said executive staff leaves union representatives out of the loop on COVID-19 discussions and safety plans. During the most recent meeting between union representatives and Carswell executive staff, Howard said, an executive staff member told reps, “I wish we could tell you we had a plan right now.”

Stat, Despite Biden’s big promises and a far better understanding of the virus, Covid-19 is still raging through the nation’s prisons (February 2, 2022)

Fort Worth Star-Telegram, Cases spike at Fort Worth prison; whistleblower complaint says top staff have no COVID plan (January 31, 2022)

KXAS-TV, Seagoville Federal Prison COVID-Cases Fall Drastically, Expert Warns Against New Data as Family Mourns Loss (August 14, 2020)

– Thomas L. Root

Carvajel’s Subcommittee Swan Song – Update for February 7, 2022

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BOP DIRECTOR’S FINAL HOUSE OVERSIGHT HEARING LARGELY A MARSHMALLOW FIGHT

Marshmallow220207Bureau of Prisons Director Michael Carvajal dumped numbers on a largely uncritical House Subcommittee on Crime, Terrorism, and Homeland Security last Thursday, in what is likely the retiring Director’s final oversight hearing.

Committee chair Rep. Sheila Jackson-Lee (D-Texas) suggested fireworks to come when she opened the session wondering how the BOP could justify turning down inmates for compassionate release who later died of COVID. But the fireworks were largely a dud, as hard questions about criminal misconduct by BOP staff, lax security, and decrepit facilities – the reasons Associated Press gave for Carvajal’s resignation in the wake of Congressional pressure for his replacement – went unasked.

The Director’s play with numbers went unchallenged as well. His written statement reported that the Bureau has transferred more than 37,000 inmates to community custody, noting parenthetically that only about a quarter of those were transferred pursuant to the authority granted by the CARES Act. In his oral testimony, the Director truncated that to the BOP having “released over or transferred over 37,000 under the CARES Act to home confinement and community placement.”

The BOP has been bandying the 37,000 number about for a long time, used to lull legislators into thinking the agency had vigorously used its CARES Act authority. What it comes down to is that the BOP kept releasing people to halfway house/home confinement as usual but could only find under 7% of BOP inmates in custody who “qualified” for CARES Act placement over a 22-month period. The “qualifications” were those laid down by the Attorney General, with additional gloss (such as the inmate must have served 50% of his or her sentence). That means that 28,000 of that 37,000 number would have gone to halfway house or home confinement under normal end-of-sentence placement, even without the CARES Act.

Maybe the number misdirection doesn’t seem like such a big deal, but it’s emblematic of BOP culture. If the BOP’s professional judgment is that the CARES Act should be no more than the 7% solution, why not tell Congress “we released 9,000 people under the CARES Act, and if you wanted us to release more, you should have written the law differently.” Instead, the BOP leads with the 37,000 number, hoping that Congress doesn’t listen that carefully, and will think the BOP has done much more than it has. It is a tacit admission by the BOP that it knows it has been unreasonably chary in applying the CARES Act, and it hopes Congress doesn’t tumble to it.

pigfly220207Perhaps the next BOP director will be candid enough to own what his agency has done or not done with its authority. (See flying pig).

Carvajal also assured the Subcommittee that the BOP “continue[s] to screen inmates for appropriate placement on CARES Act” and that while the 50%-of-sentence standard is one of the “four hard criteria,” the BOP has “discretion – there usually is a higher-level review if the staff of the institution feels that it is appropriate outside of the CARES Act, we have procedures in place to review cases such as that…”  Call this the Manafort exception. Unfortunately, but for Paul Manafort’s CARES Act release in May 2020 (and former congressman Chaka Fattah in July 2020), the BOP has been steadfast in refusing to waive the 50% rule. It should be called the “who-you-know” exception.

who201229Responding to questions from Rep. Karen Bass (D-California), Carvajal said that 80% of the BOP staff was vaccinated, but only 95,000 out of 135,100 in-custody inmates had gotten the jab. His numbers are way off the BOP’s own website, which reports that 119,500 inmates are vaccinated – 78% – but only 70.4% of the BOP’s 36,739 employees have gotten the shot.

[Note to Mike: it’s easier to fudge the numbers when you’re not simultaneously making the real data available to anyone with a smartphone.]

Rep. Thomas Massie (R-KY) said the BOP had told his staff that 4,738 BOP employees (12.9% of the workforce) had gotten exemptions – mostly religious – from taking the vaccine, and groused that “it’s kind of it’s interesting that the inmates have more rights [to refuse vaccines] than the officers themselves.” No one knows what the Congressman might think if he knew the numbers Director Carvajal had given him were wrong. For what it’s worth, Congressman, if the BOP is getting rid of staff who refuse the vaccine, inmates would happily accept the same fate. 

One of the only tense moments in the hearing came when Rep. Cori Bush (D-MO) braced Carvajal on conditions brought to her attention by the National Council for Incarcerated and Formerly Incarcerated Women and Girls. Bush said:

In these emails, women in federal custody detail horrifying accounts of not being allowed to get out of their beds all day because of COVID lockdowns, being forced to eat expired food, having little to no access to medical services to treat cancers and other underlying conditions, having to pay $2.00 to file a sick complaint. This is all happening under your watch. These are complaints coming from not one or not two facilities but five different facilities, which makes clear that these issues are not isolated… These women cannot hold you accountable, Mr. Carvajal, they cannot, but we can, and I would like to use this opportunity to ask you questions that they cannot directly ask you out of fear of retaliation.

schultz220207The Director responded, “I’m not aware of those particular complaints, but I’m certainly interested in hearing from you and your staff so that we can look into them, because I find that – if that happened – I find it unacceptable.” He assured Bush that “we take all allegations seriously…” Not that I disagree – I would never dispute what the BOP director says – but I have hundreds of emails from inmates who beg to differ.

Carvajal explained to the legislators, “I’d like to stress something – we’re not here for punishment, the taking of their time by the courts and the criminal justice system, that’s the punishment, we’re here to house people that are remanded to our custody and more importantly to prepare them to reenter society, keep them safe while they’re here. We’re not here as punishment, that’s not how we look at this agency.”

The hearing had a few other bumps. Rep. Steve Cohen (D-TN) complained that the BOP “has unfortunately failed to protect the health of those within their custody and their staff from COVID-19 or address chronic understaffing [and] the BOP has also lacked transparency and vigor and implementing important criminal justice reforms such as the First Step Act.”

Jackson-Lee raised the reports filed by epidemiologist Homer Venters, M.D., on MDC Brooklyn and FCC Lompoc. She noted that “his investigation revealed [a] disturbing lack of access to care when a new medical problem is encountered…” Venters noted that at MDC Brooklyn, “it quickly became apparent that not only were many people reporting that their sick call requests, including COVID-19 symptoms, were being ignored, but that the facility was actually destroying their original request which violates basic correctional standards. [T]his is an accountability hearing… these are human beings deserving of respect and dignity, men and women…”

Carvajal said he was “aware of the report, we looked into it, we followed up, I won’t discuss that specific incident, but I will reassure you that each of our institutions has an outpatient health clinic that’s overseen by a board-certified physician and a medical director. We have outside oversight… If there’s a mistake made or something of that nature, we’re going to look into it and do something about it correct the issue.”

potemkin220207He did not mention and the Subcommittee did not note that the BOP’s “follow-up” consisted of vigorously contesting every aspect of Venters’ report in litigation over MDC Brooklyn.

It may not be much of a plan to testify before a subcommittee hoping that the legislators haven’t done their homework. But Director Carvajal seems to have capped his career doing just that, and with some success.

Statement of Michael Carvajal, House Committee on Judiciary (Feb 3, 2022)

Hearing, Oversight of the Federal Bureau of Prisons (Feb 3, 2022)

Fernandez-Rodriguez v. Licon-Vitale, 470 F.Supp.3d 323 (S.D.N.Y. 2020)

– Thomas L. Root

7th Circuit Says Exhaustion of Remedies No ‘Scavenger Hunt’ – Update for February 4, 2022

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SCAVENGER HUNT FOR BP-9 UNNECESSARY

Eric Gooch filed a Bivens action in December 2019 against two correctional officers, claiming an 8th Amendment violation after they allegedly convinced another inmate to attack him. Under the Prison Litigation Reform Act, an inmate has to exhaust all available administrative remedies before he or she can sue.

snitch160802Eric did not, claiming that when he asked his counselor for a remedy form, the counselor refused to give him one, saying “I’m not giving you a form to file on that and you better watch out snitching on staff.”

The District Court dismissed his lawsuit, holding that Eric could have mailed his request “directly to the Regional Office, as the regulations and program statement provide.” Thus, the administrative remedy process was still “available” to Eric, so he had to exhaust all of its steps before filing a complaint in federal court.

Last week, the 7th Circuit reversed the dismissal. The Circuit held that exhaustion of administrative remedies is not required when the prison officials responsible for providing grievance forms refuse to give a prisoner the forms necessary to file an administrative grievance. Evidence of the appropriate official’s refusal to give a prisoner an available form is sufficient to permit a finding that the administrative remedies are not available.

scavenger220204The 7th said that under the plain language of the BOP’s administrative-remedy process rules, in order to submit a grievance to the Warden or Regional Director, a prisoner must use the appropriate BP-9 form. The BOP argued that Eric had time remaining to file a timely BP-9, so he should have tried harder to procure the BP-9 form — for instance, by asking other staff — before “rushing to court.” The Circuit rejected this as “unworkable,” holding that the PLRA does require “prisoners to go on scavenger hunts just to take the first step toward filing a grievance.”

Gooch v. Young, Case No. 21-1702, 2022 U.S. App. LEXIS 2042 (7th Cir., January 24, 2022)

– Thomas L. Root

Novel Robbery Theory Undercuts ACCA, 4th Circuit Says – Update for February 3, 2020

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GIVE ME YOUR MONEY OR I’LL SAY YOU’RE A @#$!&*%+

Terry Antonio White was convicted of an Armed Career Criminal Act violation. He violated 18 USC § 922(g)(1)’s prohibition on being a felon in possession of a firearm and had three prior crimes of violence (COV), including Virginia common law robbery. That was enough to trigger 18 USC § 924(e)’s mandatory 15-year sentence.

devil180418But exactly what constitutes a COV has evolved over the past few years. The COV must be an offense that necessarily must be committed by using or threatening physical force against another. Seems pretty logical, but – as always – the devil’s in the details.

On appeal, Terry argued that Virginia common law robbery can be committed without the actual, attempted, or threatened use of physical force. Terry claimed that at common law, one could commit robbery in Virginia by threatening to accuse the victim of having committed sodomy if he didn’t hand over the loot.

Terry’s claim sent the 4th Circuit to the Supreme Court of Virginia. The Circuit asked whether someone can be convicted of Virginia common law robbery by threatening to accuse the victim of having committed sodomy. The Virginia Supreme Court said, “yes if the accusation of ‘sodomy’ involves a crime against nature under extant criminal law.”

badwords220204Last week, the 4th Circuit, therefore, held that Virginia common law robbery can be committed without proving as an element the “use, attempted use, or threatened use of physical force.” Thus, Virginia common law robbery cannot be a predicate offense for an ACCA conviction. 

Terry gets time lopped off his sentence, and – while the Circuit didn’t say this – it means that Virginia common law robbery cannot support any 18 USC § 924(c) offense for using a gun during the commission of a Virginia common law robbery, either.

United States v. White, Case No. 19-4886, 2022 U.S. App. LEXIS 2599 (4th Cir., January 27, 2022)

– Thomas L. Root

Unrest in the BOP Over COVID… It’s Staff and Senators, Not Inmates – Update for February 1, 2022

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COVID KEEPS ON GIVING

sick220201A week ago Monday, the Bureau of Prisons broke a record.  On that day, the BOP reported 9,531 inmate cases, a crest that fell to 7,808 by last Thursday (thanks in no small part to the BOP’s aggressive practice of writing off inmates as “COVID recovered” after 10 days).

The BOP failed to report case numbers last Friday, Jan 28. But yesterday, the number was still at 7,724, a number above last year’s record of 7,690.

Staff numbers (which the BOP cannot manipulate by declaring people to be recovered, u it can with inmate numbers) climbed 26% from the Friday before to 1,956. Staff cases are flirting with the all-time high of 2,107 set on January 13, 2021.

The BOP reported five more inmate deaths last week, one each at FMC Ft Worth, FMC Butner and Butner I, FCI Mendota (California) and Coleman Medium. This raises the total of BOP and private-facility inmate deaths to somewhere over 300. The Ft. Worth death was the 17th inmate COVID fatality at the facility.

The BOP numbers do not include Juanita Haynes. Ms. Haynes, who unsuccessfully sought compassionate release from FPC Alderson women’s facility last summer, filed again for release on December 23 even as COVID gripped her. Too little, too late. Ms. Haynes was placed on a ventilator the day after Christmas. On January 3rd, her sentencing judge finally believed her, and granted compassionate release.

inmateCOVIDrights220124

“Ms. Haynes is currently suffering from a life-threatening case of COVID-19 and is unfortunately showing no signs of improvement,” the judge wrote. “Additionally, ICU staff have advised that if she is to recover from her current state, she will require a long-term tracheostomy. In light of these facts, the court concludes that Ms. Haynes’ current medical status amounts to a serious medical condition constituting extraordinary and compelling reason.”

Juanita Haynes died two days later, never coming out of her medically-induced coma to learn that she was a free woman. The BOP’s environment killed her, but because she expired after her release was ordered, it does not count her in its death total

ABC News reported last Wednesday that two U.S. Senators who had arranged to inspect FCI Danbury with labor union leaders and two state lawmakers “were barred from seeing the main women’s facility but were able to see a men’s unit after a ‘fight’ to gain access.”

Senators Richard Blumenthal and Chris Murphy (both D-Conn) sought to examine Danbury conditions in response to correctional officers’ complaints about a staffing shortage and lack of COVID precautions.

nosebusiness220201“There was clearly a decision made to try to stop both of us from seeing some of the conditions at this prison,” Senator Murphy said afterward. “This facility, even during COVID, should be open for inspection by policymakers. We need to see it during good times, but we also need to see it during bad times. And if the Bureau of Prisons has decided that US lawmakers are not going to be able to see what is really happening inside these prisons during a crisis, that’s a problem.”

The Denver Gazette reported Friday that BOP staff at FCI Englewood charged that the BOP had failed to “properly screen staff or broadly test inmates for COVID-19… ignoring federal guidance despite repeated pleas from the union that represents the facility’s workers.”

The result, the workers alleged, is the “largely unchecked spread of the virus in the sort of setting that has been a hotbed for outbreaks for nearly two years.” As of Thursday, Englewood reported 12 sick inmates and 18 sick staffers.

Inmates at FCI Englewood have to “beg and plead” to get tested, the Gazette said one union official had said, and “he alleged that the understaffed, in-house medical team had told some symptomatic inmates that they just have allergies.”

The Gazette said that in response to its inquiries, the BOP “said it would begin requiring enhanced screening for anyone entering the facility — the kind that employees say they’ve sought for months — starting Friday.”

As of yesterday, FCI Oakdale I reported 494 cases and Yazoo City Medium had 475. Five facilities had 200 or more cases, another 15 had more than 100 cases, and 24 more had 50 or over.

Ft. Worth Star-Telegram, Man’s death marks the 17th prisoner death from COVID at Federal Medical Center Fort Worth (January 27, 2022)

Lewisburg, West Virginia, Daily News, Three Alderson Inmates Have Died Due To COVID-19 (January 26, 2022)

ABC News, Senators say they were denied full access to federal prison (January 26, 2022)

Corrections1, Federal prison in Colo. allowing COVID to spread largely unchecked, employees say (January 31, 2022)

– Thomas L. Root

Is PATTERN Dooming First Step Programming – Update for January 31, 2022

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DOES PATTERN HAVE IT ALL WRONG?

One of the jewels in the First Step Act tiara has finally started to sparkle…. and it may turn out to have just been a rhinestone all along.

tiara220131First Step had as a goal the reduction of recidivism – the prison revolving door – by assessing each federal prisoner’s likelihood of recidivism, identifying the prisoner’s needs (anger management, substance abuse education, vocational training, and the like), and then offering programming that met those needs and was based on evidence that it would reduce recidivism (called “evidence-based recidivism reduction” or “EBRR” programming). The system is called PATTERN.

To encourage inmates to participate in EBRR programs to address their needs, First Step offered earned time credits (called by the acronym-loving bureaucracy ETCs, or FTCs – federal time credits – or just TCs) to inmates who successfully complete EBRR programs or – after their needs are met – stay busy with productive activities (called PAs, of course). TCs are awarded on a daily basis – every day on which a prisoner takes a class is one day’s credit, and each day equals a third to a half of a TC. Inmates could trade in their TCs for up to a year off their sentence, or for more home confinement or more halfway house.

People with medium and high PATTERN scores can collect TCs, but only those with low and minimum PATTERN scores can spend them. Plus, the mediums and highs get one TC for every three days of programming. Lows and minimums get a half TC per day. In First Step parlance, a month of programming gets an inmate with a medium and high 10 TC days, but the prisoner with a low or minimum PATTERN scores gets 15.

TCs are sort of like airline miles: everyone can collect them, but using them can be tough.

The program only began on January 19, three years and a month after First Step enacted it. And it started with a bang, as the Bureau of Prisons retroactively awarded TCs for programs completed since December 2018. Currently, as Forbes noted a week ago, the BOP appears to be “prioritizing the release of those prisoners on home confinement or at halfway houses. Over the past 2 weeks, populations of those on home confinement and halfway house show thousands of people released from custody while the BOP populations have remained steady.”

The media have been excitedly reporting the releases, crediting the First Step Act, but Forbes poured some water on the fire: “Many advocates may be giving one another high-fives, but, as history has demonstrated, the BOP somehow finds a way to mess up a good thing.”

So what could possibly go wrong with such a wonderful program? PATTERNsheet220131We’re 12 days into the programs, and warts are already starting to appear. Let’s start with the PATTERN score.

At a House Subcommittee on Crime, Terrorism and Homeland Security hearing 10 days ago, law professor Melissa Hamilton told legislators that as many as 10.9% of male and 9.8% of female prisoners have been assigned wrong risk categories due to errors in the PATTERN system. “The BOP has no plans to correct these errors,” she said in her written statement, “until a new version of PATTERN… is formally approved by the Attorney General.”

PATTERN errors include

•  PATTERN was designed to score one’s risk factors as of the date of release, not the date of assessment. For example, if a 39-year-old man comes to prison for a 15-year sentence, he has a PATTERN age risk factor of 21. But PATTERN was designed to assess his age at release, which would be age 52. The risk factor for age 52 is only 7. The difference is 14 points. “Because the empirical models were estimated using different versions of these variables,” Professor Hamilton said, “it may have influenced the coefficients obtained and the item weights assigned. In other words, this definitional discrepancy across risk factors called into question the efficacy of the entire scoring system.”

• PATTERN operates with significant rates of error and disproportionately prefers false positives over false negatives. A false positive is the incorrect prediction of higher risk, while a false negative is the incorrect prediction of lower risk. This means that “a choice has been made to design PATTERN to perform far less accurately when predicting those who are at higher risk which means placing too many individuals into the higher risk groupings than necessary,” Hamilton told the subcommittee.

• PATTERN does not perform equally based on race and ethnicity. It “overpredicts the general risk for African Americans, Hispanic Americans, and Asian Americans, while it underpredicts for Native Americans.”

• Some BOP personnel are counting disciplinary infractions occurring when prisoners are in pretrial and holdover stages. A National Institute of Justice report last December said, “This means that as BOP is implementing PATTERN, they are currently scoring these infraction variables differently than were modeled in the report… which may have an impact on the utility of these two measures.”

Hamilton told the Subcommittee that “the various errors meant that 37 out of the possible 60 items (almost two-thirds of them) had been incorrectly weighted” in the PATTERN risk assessment. Due to these errors, according to the NIJ Report, overall, 11% of the BOP population was placed in the wrong risk category. This proportion may be on the low end.”

Last week, NPR reported that “about 14,000 men and women in federal prison… wound up in the wrong risk categories. There were big disparities for people of color. Criminal history can be a problem, for example, because law enforcement has a history of overpolicing some communities of color. Other factors such as education level and whether someone paid restitution to their victims can intersect with race and ethnicity, too.” At the same time, it also underpredicted the risk for some inmates of color when it came to possible return to violent crime.

The NIJ Report concluded that some of the racial disparities could be reduced, “but not without tradeoffs” such as less accurate risk predictions. The department also said using race as a factor in the algorithm could trigger other legal concerns. Still, it is consulting with experts about making the algorithm fairer and another overhaul of Pattern is already underway.”

screwup191028And it’s not only the errors inherent in PATTERN. Those exist even if the BOP staff follows the PATTERN scoring instructions to the letter. But they don’t: The NIJ Report also indicated a significant problem with reliability. “BOP personnel incorrectly scored and classified more than 20% of the BOP population,” Hamilton testified. “An automated system has been developed to improve reliability. However, it is unclear when/if the misclassifications from manual scoring will be remedied.”

“Case managers, who have been keying in classes that prisoners have taken over the past two years, seem to have a liberal way of calculating ETC,” the Forbes writer said, “and those who I have spoken to about their release have no idea how their release date was calculated. As one man told me, ‘I was just happy to be released and don’t care how they calculated it’. However, for the man or woman sitting in prison, it makes a huge difference.”

Added to that is the fact that First Step included a number of offenses which will exempt an inmate from earning TCs. “The significance of this risk assessment tool is that it divides all federal prisoners essentially into two groups: people who can get credit for doing this programming and get out early, and people who can’t,” said Jim Felman, an attorney in Tampa, Florida, who has been following the First Step Act for years. Forbes said, “The law already has flaws as there are a number of exceptions carved out to prevent some offenses from being ineligible from earning ETC. Look for those to be challenged in court.”

The problem is worsened by BOP confusion in interpreting the 60-odd exceptions. Reports are rife of BOP staff errors – such as declaring an inmate ineligible over a prohibited conviction that occurred in the past rather than as the current offense, or advising inmates one that any drug trafficking offenses would exclude inmates only to withdraw the advice later. Many of the mistakes seem to be coming from the Designation and Sentence Computation Center at Grand Prairie.

As Forbes darkly predicted, “Look for those to be challenged in court.”

puzzled171201Finally, the law failed to establish any standards for assessing what needs an inmate might have. A case manager must find a prisoner has a need (such as a need for anger management) before the inmate can earn TCs for completing a program addressing the need. Hamilton pointed out that “PATTERN is not itself a needs system. Instead, the BOP is relying, and purportedly improving, upon its preexisting policies and practices of identifying individual needs. This means that to date there has been no (publicly known) validation of the needs aspect of the broader system.”

“The BOP states that it is working to identify appropriate programs,” Hamilton testified, “At this time, though, a significant divide exists between program availability and individual demand in many BOP facilities. The result is a sort of lottery system whereby the luck of the draw in facility placement means some individuals will have a greater access to achieving earned time credits than others.”

The House Subcommittee will grill outgoing BOP Director Michael Carvajal at an oversight hearing this Thursday. Expect some pointed questions about PATTERN and TCs at that time.

Forbes, Bureau Of Prisons Begins Implementing First Step Act With Release Of Thousands In Custody (January 22, 2022)

Testimony of Law Professor Melissa Hamilton, before the House Subcommittee on Crime, Terrorism, and Homeland Security (January 21, 2022)

NPR, Flaws plague a tool meant to help low-risk federal prisoners win early release (January 26, 2022)

House Subcommittee on Crime, Terrorism, and Homeland, Scheduled Hearing on Oversight of the Federal Bureau of Prisons (scheduled for February 3, 2022)

– Thomas L. Root

The Sheriff Was Making It Up – Update for January 28, 2022

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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.

YOU PUT THE WORDS RIGHT IN MY MOUTH

In October 2018, two Butts County Sheriff’s deputies placed signs in the front yards of all 57 registered sex offenders in the County, warning kids to “STOP” and “NO TRICK-OR-TREAT AT THIS ADDRESS.” When one of the people whose house had the posted sign called the Sheriff, he was told it was a crime to remove it.

trickortreatsign220128

The next year, three of the registered sex offenders sued, seeking a court order prohibiting the Sheriff from placing the signs again. The district court denied the injunction.

Last week, the 11th Circuit reversed, concluding that “the Sheriff’s warning signs are compelled government speech, and their placement violates a homeowner’s First Amendment rights.” The Court noted that First Amendment protection “includes both the right to speak freely and the right to refrain from speaking at all… The right to speak and the right to refrain from speaking are complementary components of the broader concept of individual freedom of mind.”

Where First Amendment rights are implicated, the state has to show it has a “compelling interest” in doing so and that the violation is “narrowly tailored” to achieve that end. Everyone agreed that protecting kids from sex abuse is compelling. But the Sheriff tried to swat a fly with a sledgehammer.

Before placing the signs, the Sheriff didn’t consider whether any of the registrants were classified as likely to recidivate. What’s more, he admitted that in the past six years he’d been Sheriff, he had never had an issue with a registrant having unauthorized contact or reoffending with a minor. The Sheriff could not show the Butts County sex offenders “actually pose a danger to trick-or-treating children or that these signs would serve to prevent such danger.”

trick220128Influencing the decision might have been the Sheriff’s explanation that he had placed the signs because Georgia law forbids registered sex offenders from participating in Halloween. After the warning signs were placed, the Sheriff posted a message on the Department’s Facebook page, along with a picture of the sign, in which he said as much. That was more trick than treat: Georgia law says nothing of the such.

“Assuming that yard signs alerting people to the residences of registered sex offenders on Halloween would prevent the sexual abuse of children (which, we repeat, is not supported by any record evidence),” the Circuit held, “the signs are not tailored narrowly enough.”

The decision against the Sheriff does not seem to have affected his popularity…

sheriffFB220128

McClendon v. Long, Case No. 21-10092, 2022 U.S. App. LEXIS 1635 (11th Cir., Jan. 19, 2022)

– Thomas L. Root