Tag Archives: BOP

Peters Due to be Sworn In This Morning, Honeymoon’s Due to End This Afternoon – Update for August 2, 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.

change220802Incoming BOP Director Colette Peters will have her choice of fires to put out after today’s swearing in. What she will not have is much of a honeymoon in which to do so.

At last week’s hearings, Sen. Jon Ossoff (D-GA) said that with Carvajal departing, and a new director coming in, change at the Bureau of Prison needs to happen and it needs to happen now.

With a fall COVID surge anticipated, she might want to look first at the BOP’s COVID management. Others certainly are. At last week’s Subcommittee hearings, Sen Alex Padilla (D-CA) said his office has received reports that FCI Mendota had not been following COVID-19 protocols, leading to frequent outbreaks at the facility.

Padilla and Sen. Dianne Feinstein (D-CA) sent the Dept of Justice a letter in April asking about the lack of COVID-19 safety precautions, but did not receive an adequate response. In response to Carvajal’s assurance that the BOP “takes these allegations seriously,” Padilla said, “We sent you a letter saying that we’re hearing that protocols are not being followed. We communicated to you months ago that we understand they aren’t being followed.”

Fourteen other senators last week demanded that the BOP explain its scant use of Covid-19 therapeutics.

The letter is based on press reports that the BOP used just a fraction of the COVID-19 drugs allotted by the federal government. It urges Bureau leadership to revamp its approach toward Covid-19 testing to catch more infections that could benefit from these drugs (which need to be given early in a person’s illness).

Druck“The experience of the pandemic for the federally incarcerated population remains starkly worse than for non-incarcerated individuals,” the letter said. “This discrepancy can only be addressed through affirmative, comprehensive changes from the Bureau of Prisons … to improve the availability of COVID-19 vaccines, testing, and therapeutics. We write to urge you to make those improvements as soon as possible.”

The Dept of Health and Human Services has reported that BOP consistently declines additional COVID-19 drugs. “We have… reached out multiple times to BOP asking them why they do not want their allocations offered by HHS. They consistently say they have enough to meet demand/their demand is low,” DHHS wrote in a May 4 email to Congress. Last week’s letter demands information from the BOP by Sep 9, including data on the turnaround time for Covid-19 tests and the policies governing when incarcerated people are tested.

numbers180327As of yesterday, BOP COVID numbers – which are stunningly untrustworthy most of the time – reported 479 inmates and 509 staff with COVID, with COVID in 115 facilities (the most since March 1st). The total number of COVID tests performed on inmates fluctuates inexplicably but suggests no testing being done since January 25th. Peters might want to start by requiring BOP COVID stats to be meaningful.

Florida Phoenix, ‘Stunning, long-term failures’ found in probe of Atlanta penitentiary (July 26, 2022)

Stat, Senators demand answers about federal prisons’ scant use of Covid therapeutics (July 26, 2022)

Letter to Michael Carvajal from Sen Benjamin Cardin (July 25, 2022)

– Thomas L. Root

Outgoing Director Carvajal Beaten Up by Gang of Senators – Update for August 1, 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.

FORMER BOP DIRECTOR GETS SENATORIAL KICK IN THE PANTS ON HIS WAY OUT THE DOOR

Widespread drug abuse, substandard health care, violence and horrific sanitary conditions are rampant at USP Atlanta, according to a Senate Permanent Investigations Subcommittee investigation revealed last week.

riot170727The dysfunction at USP Atlanta is so notorious within the BOP that “its culture of indifference and mismanagement is derisively known among bureau employees as ‘the Atlanta way’,” the New York Times reported last week. Witnesses at the Subcommittee hearing last week “describe[ed] dozens of violent episodes — and the systematic effort to downplay and cover up the crisis — over the past few years,” The Times reported.

The prison’s conditions reflect wider problems in the BOP’s network of 122 facilities housing about 158,000 inmates, The Times said. The system has suffered from chronic overcrowding, staffing shortages, corruption, sexual violence and a culture that often encourages senior officials to minimize the extent of the problems.

The Associated Press reported that outgoing BOP Director Michael Carvajal, who testified under a Subcommittee subpoena, “faced a bipartisan onslaught Tuesday as he refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years.”

schultz220801Carvajal argued that “he had been shielded from problems by his underlings — even though he’d been copied on emails, and some of the troubles were detailed in reports generated by the agency’s headquarters.” He blamed the size and structure of the BOP for his ignorance on issues such as inmate suicides, sexual abuse, and the free flow of drugs, weapons and other contraband that has roiled some of the BOP’s 122 facilities. His attempts to deflect responsibility for his leadership failings sat well with neither Subcommittee chairman Sen Jon Ossoff (D-GA) nor its ranking member, Sen Ron Johnson (R-WI).

Colette S. Peters, the longtime head of Oregon prisons, assumes the BOP director’s post on Tuesday. Carvajal finally will get the retirement he announced seven months ago, but not before the Subcommittee made it clear that it was fed up with his blandishments.

“Inmates hanging themselves in federal prisons, addicted to and high on drugs that flow into the facilities virtually openly,” Ossoff told Carvajal, “and as they hang and suffocate in the custody of the US government, there’s no urgent response from members of the staff, year after year after year… It’s a disgrace. And for the answer to be ‘other people deal with that. I got the report. I don’t remember’. It’s completely unacceptable.”

“It’s almost willful ignorance, and that’s what I find disturbing,” Johnson said. “‘Don’t want to know what’s happening below me. Don’t want to hear about rapes. Don’t want to hear about suicides’.”

rapeclub220801In one of the hearing’s most heated moments, Ossoff pressed Carvajal on rampant sexual abuse at FCI Dublin, a federal women’s prison in California’s Bay Area known to staff and inmates as the “rape club.” Among the Dublin employees charged criminally so far is the prison’s former warden.

“Is the Bureau of Prisons able to keep female detainees safe from sexual abuse by staff?” Ossoff asked. “Yes or no?”

“Yes, we are,” Carvajal replied. “In those cases when things happen, we hold people appropriately accountable.”

“You are the director at a time when one of your prisons is known to staff and inmates as a ’rape club,” Ossoff shot back. Carvajal had no response.

Rebecca Shepard, a staff attorney for the Federal Defender Program Inc., said USP Atlanta subjects inmates to inhumane and substandard conditions:

I have seen clients routinely locked down and allowed out of their cells for extremely limited periods of time, such as only 15 to 30 minutes, three to four times a week, or only an hour each day. And these lockdowns persist for months. Clients are treated as though they are in solitary confinement, not because of their behavior, but because of their misfortune and being placed at USP Atlanta.

The problems were “stunning failures of federal prison administration,” Ossoff said. But despite “unequivocal internal reports of abuse and misconduct, the situation continued to deteriorate.”

sexualassault211014Attorney General Merrick Garland appears to be moving more decisively, especially on the issue of sexual violence against female inmates and staff members. On July 14, Deputy Attorney General Lisa Monaco announced a task force to establish a policy aimed at “rooting out and preventing sexual misconduct” by prison employees over the next 90 days. Ms. Monaco said she was also instructing frontline prosecutors to make all misconduct cases at facilities a top priority, The New York Times said.

Last week, Forbes reported that Peters will take over an agency in disarray:

Relations between management and labor is at an all-time low, the agency is failing at implementing the First Step Act and COVID-19 continues to ravage its institutions. A recent survey by Partnership for Public Service, which ranks best places to work within the US government, ranked the BOP near last among 432 federal agencies. It ranked dead last in Effective Leadership category. This comes at a time when the BOP is trying to recruit new workers to make up for many veteran BOP employees who are leaving the agency.

Dumpster220718Hyperbole?  Well, just last week:

•      An independent arbitrator found the management at the Bureau of Prisons Federal Correctional Center Yazoo City in Mississippi guilty of violating the civil rights of the American Federation of Government Employees’ (AFGE) local President Cyndee Price at the facility, as well as retaliating against her in violation of the union contract.

     In 2020, Price was the first Black woman elected to serve as the local union president at any Federal Correctional Complex in the nation. But after that, the arbitrator ruled, prison wardens prohibited Price from using 100% official time to perform her union work, although previous Local President Vincent Kirksey had been granted 100% official time for the past seven years, and male local presidents at other BOP facilities also are on 100% official time.

     Bankston ordered the agency to pay Price overtime pay for the 1,080 hours of union work she performed on her own time that should have been performed during duty hours under the approved contract and past practice. Price was also awarded $300,000 in compensatory damages, as well as attorney’s fees and expenses.

•    A former BOP employee from FMC Lexington was sentenced last Friday to 80 months in federal prison after pleading guilty to committing five counts of sexual abuse of a ward. The employee, Hosea Lee, was a correctional officer serving as a drug treatment specialist. Between August and December 2019, Lee engaged in sexual acts with four separate female inmates who were in his drug classes.

•    A Mississippi woman, Tarshuana Thomas, was arrested Monday after being indicted by a federal grand jury for alleged fraud involving federal COVID-19 Paycheck Protection Program loans. The US Attorney said Thomas, who worked as a CO at FCC Yazoo City at the time of the alleged fraud, devised a scheme to obtain PPP funds by filing fraudulent loan applications.

The Atlanta Voice, Senator Ossoff grills Federal prison officials over deplorable conditions at Atlanta Penitentiary (July 28, 2022)

The New York Times, Prison Personnel Describe Horrific Conditions, and Cover-Up, at Atlanta Prison (July 26, 2022)

Forbes, Outgoing Federal Bureau Of Prisons Director Carvajal Subpoenaed By Senate Subcommittee (Jul 19)

WRDW-TV, Ossoff leads hearing on troubled Georgia federal prison (July 26, 2022)

WJTV, Arbitrator finds Yazoo County federal prison guilty of violating civil rights (July 26, 2022)

Dept of Justice, Former BOP Employee Sentenced to 80 Months in Prison for Sexual Abuse of a Ward (July 29, 2022)

Mageenews.com, Former BOP Correctional Officer Charged with COVID-Relief Fraud (July 29, 2022)

– Thomas L. Root

The King is Dead, Long Live the Queen – Update for July 18, 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.

NEW ‘REFORM’ SHERIFF COMES TO BOP

Colette S. Peters, the longtime director of the Oregon Department of Corrections, has been tapped to lead what The New York Times last week called “the chronically mismanaged and understaffed federal Bureau of Prisons.”

Dumpster220718The appointment comes after a 5-month search to replace current BOP Director Michael Carvajal. Carvajal announced his retirement in January under pressure from Senate Democrats – especially Judiciary Committee Chairman Richard Durbin (D-IL) – who questioned his management.

The Times said Peters “was considered the favored candidate for a job seen as one of the Justice Department’s most demanding and thankless assignments.” Kevin Ring, president of FAMM, was blunter:  “Colette Peters is walking into a dumpster fire. From sexual violence and medical neglect to understaffing and years-long lockdowns, the BOP’s leadership has allowed a humanitarian crisis to develop on its watch. Families with incarcerated loved ones have been begging for change.”

The Associated Press reported that “Peters, who championed steeply reducing [Oregon’s] inmate population in the last decade, will inherit a federal agency plagued by myriad scandals. Her hiring comes about seven months after Director Michael Carvajal submitted his resignation amid mounting pressure from Congress after investigations by The Associated Press exposed widespread corruption and misconduct in the agency.”

Those issues include health and safety problems, physical and sexual abuse, corruption and turnover in the top management ranks. Staffing issues, exacerbated by the pandemic, have resulted in a huge shortage of prison guards and health personnel, according to an AP investigation last year, which uncovered a wide array of other shortcomings.

bureaucracy180122When she takes office on Aug 2, Peters will become only the second director in BOP history with no prior experience in the federal prison system. Deputy Attorney General Lisa Monaco, who led the search to replace Carvajal, said DOJ had been looking for someone focused on reforming an agency that has had cultural issues for decades.

Durbin had been especially critical of Carvajal, who started his BOP career as a correctional officer 30 years ago, accusing him of failing to properly implement the First Step Act. Last winter, he called repeatedly for Carvajal’s firing, describing the BOP as rife with abuse and corruption.

The accuracy of that criticism was underscored this week by a Forbes report that 42 months after First Step became law, the BOP is only now beginning staff training on how to apply earned-time credits for inmates, with training set to start next month. Forbes said, “While the training on FSA is a great idea, it also serves as verification that the BOP is way behind on implementing the most important aspect of the law, which is to allow prisoners to earn time off of their sentences. After training, it will take months to coordinate local training at the institution level. Until then, expect the chaos to continue and questions to go unanswered.”

Shane Fausey, national president of the Council of Prison Locals, which represents BOP employees, welcomed the selection of Peters. “We believe that the lessons [Peters] learned while leading the Oregon Department of Corrections can be used to effectively improve the BOP,” he told Government Executive. “Additionally, it is extremely important that officer and employee safety are prioritized in all decisions.”

Rep Fred Keller (R-PA), chair of the House BOP Reform Caucus, said, “I look forward to maintaining an active and productive relationship with Director Peters in her new capacity on BOP priorities such as improving the agency’s operations, increasing correctional officer staffing levels, and ensuring the safety of staff and inmates.”

Peters has faced criticism during her stint as ODOC chief. She was accused in a lawsuit of placing underqualified friends in high-ranking positions within the ODOC and creating openings for them by firing other employees or creating a hostile environment causing other employees to quit.

Bobbin Singh, the executive director of the Oregon Justice Resource Center, last week expressed concern about Peters’s appointment given his experience with her. “This appointment is an insult to all those incarcerated in Oregon who are fighting for their civil rights and dignity,” Singh told the online publication Law Dork last Tuesday.

Less than a month ago, his organization sent a report to Oregon lawmakers detailing ongoing problems at ODOC. In the letter to lawmakers accompanying the report, Singh wrote, “Despite a cascade of evidence revealing serious issues within the department, ODOC continues to put forward a misleading narrative that either ignores the issues entirely, profoundly sanitizes the facts, or wrongly shifts blame and responsibility away from itself.”

goodbad220718Law Dork reported, “Another person familiar with Peters’s work helped explain how Singh could have such criticisms and DOJ could nonetheless want Peters for the job: ‘She both runs a bad system and is one of the handful of best DOC heads in the country. She has made some concrete improvements to the system. But the system is still really bad. It says so much about American prisons that ODOC can both be very bad — and be one of the better ones in the country.’”

NY Times, Justice Department Taps Oregon Official to Run Troubled Bureau of Prisons (July 11, 2022)

Associated Press, Justice Dept taps reforming outsider to run federal prisons (July 12, 2022)

Forbes, 42 Months After The First Step Act Was Signed Into Law, The Bureau Of Prisons Starts Training Staff (July 15, 2022)

Govt Executive, A New Federal Prisons Director Has Been Named, and Union Officials and Lawmakers Are Optimistic She Will Bring Positive Reforms (July 12, 2022)

Law Dork, New Prisons Head Comes From Oregon, With Baggage (Jul y 13, 2022)

FAMM, FAMM releases statement on new Bureau of Prisons Director (Jul 12)

– Thomas L. Root

BOP’s Ship Takes On Water – Update for July 12, 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.

EDITOR’S NOTE: ARE WE INFLUENTIAL OR WHAT?

Only a couple of hours after we posted this, the Dept. of Justice announced that Colette Peters had been hired as BOP director.  While some may say that this is post hoc, ergo proper hoc reasoning, we’re quite willing to think that Merrick Garland starts his day with LISA’s posts.

BOP’S SHIP SLOWLY SINKS AS SEARCH FOR CAPTAIN SEEMS TO BE STALLED

sinking220712With July 4th, last week was short. Good thing, too, because the Bureau of Prisons probably could not have taken a fifth day of bad news.

First, an Associated Press report on a lawsuit about conditions at FCI Sheridan said that the Oregon Public Defender Lisa Hay alleged in a filing that the BOP turned off water at the Sheridan detention center in order to end refusal by some detainees to eat.

The warden allegedly issued a memo to detainees that “showers are postponed due to continued threats of assault to staff.” The court filing said that temperatures in Sheridan reached 90 degrees when showers were withheld.

Oregon Public Broadcasting said BOP “didn’t answer questions about the memo or whether the water was cut off in an effort to end the hunger strike.”

Conditions inside the federal prison have been the subject of concern since the pandemic took hold in 2020. Hay has in court filings detailed lockdowns that have lasted for days. In other filings, her office has documented poor medical and dental care that has left many suffering.

Meanwhile, in a letter Wednesday to Deputy Attorney General Lisa Monaco, USP Thomson staff and union leaders called for the immediate removal of Warden Thomas Bergami, citing “an abundance of serious incidents” and the mass departure of 60 correctional officers since March.

“Warden Bergami has failed within his position of trust and has placed the staff, inmates and communities at risk,” AFGE Local 4070 President Jonathan Zumkehr wrote. “Attempts to address these issues directly have gone unheeded and even to the extent of being covered up and or distracted from the facts… Managers are blatantly violating laws and refusing to adhere to local agreements, placing the hard-working staff in limbo with ever-changing policies and procedures that have done nothing but set USP Thomson ablaze.”

Bergami has only been at Thomson since March.

The BOP settled two lawsuits last week. One, a 20-year old suit by six people detained after 9/11 at MDC Brooklyn, included a cash payment and letters to each of the plaintiffs from BOP Director Michael Carvajal wrote a letter to each of the men saying the Dept of Justice had determined they were “held in excessively restrictive and unduly harsh conditions of confinement and a number of individuals were physically and verbally abused by certain MDC officers.”

sorry190124“I don’t know that the director of the Bureau of Prisons has ever signed a letter of this nature before to individual clients, so that is unique,” Rachel Meeropol, an attorney for the men, said.

On June 28, the BOP settled the two-year-old FCC Lompoc class action, agreeing “to comply with Attorney General Barr’s March 26 and April 3, 2020 memoranda, the current BOP guidance at the time of each review, and the standards set forth in this Court’s orders when making decisions about a request for home confinement. In addition, the agreement requires Respondents to transfer individuals within one month of the decision granting home confinement and, if the transfer does not occur timely Respondents must provide an explanation of the reasons for the delay.”

The agreement substantially contains the terms previously imposed by the court in an injunction and enforcement orders.

covidneverend220627Last week, the BOP reported two more inmate COVID deaths, an April 21 death at USP Tucson and a May 16 death at Yazoo City Medium. Both men had previously had COVID and been declared to have recovered. The federal prisoner inmate COVID death total now stands at 319 or higher. COVID cases ended the week at 520 (inmates) and 338 (staff), the highest since the beginning of March.

Finally, there seems to be no movement on a new BOP Director since Colette Peters, director of the Oregon prison system, was reported to be a finalist for the post almost a month ago. One would hardly blame her for any second thoughts she might be having.

KGW-TV, Lawyer: People at federal prison in Oregon denied showers amid hunger strike (July 5, 2022)

Corrections1, Prison staff, union call for warden’s removal after ‘abundance of serious incidents’ (July 7, 2022)

Colorado Springs Gazette, Feds settle suit alleging abuse by men detained after 9/11 (July 5, 2022)

Santa Maria Times, Settlement reached in Lompoc prison COVID-19 class action laws (July 7, 2022)

Joint Motion, Torres v Milusnic, Case No 2:20cv4450 (CD Cal)

BOP, Inmate Death at USP Tucson (July 6, 2022)

BOP, Inmate Death at FCI Yazoo City Medium (July 6, 2022)

– Thomas L. Root

NBC Says DOJ Failing to Assign Earned-Time Credits – Update for July 6, 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.

NBC NEWS ACCUSES DOJ AND BOP OF BOTCHING EARNED-TIME CREDITS

screwup191028An NBC report aired last Sunday blasted the Dept of Justice for botching the award of First Step Act earned-time credits. “Thousands of nonviolent federal prisoners eligible for early release under a promising Trump-era law remain locked up nearly four years later because of inadequate implementation, confusion and bureaucratic delays, NBC quoted prisoner advocacy groups, inmates and BOP officials as saying.

Even the Biden administration’s attempt to provide clarity to the First Step Act by identifying qualified inmates and then transferring them to home confinement or another form of supervised release appears to be falling short, according to prisoner advocates familiar with the law.

“It shouldn’t be this complicated and it shouldn’t take this long,” NBC quoted Kevin Ring, president of FAMM, as saying. “Here we are, four years later, and it’s maddening.”

The BOP gave NBC data showing that as of June 18, more than 8,600 inmates have gotten sentence recalculations and are slated for earlier release due to ETCs. But the BOP’s own data identified about 66,600 inmates eligible to receive ETCs.

NBC quoted BOP officials as saying, “We have no data which suggests inmates had their release dates delayed.”

Others are not so sanguine. “We estimate that there are thousands of inmates who will not receive the full benefit — days off of their federal prison sentence — of the First Step Act simply because the agency is uncertain how to calculate these benefits,” Walter Pavlo, president of the consulting firm Prisonology LLC, and a Forbes contributor, told NBC.

funwithnumbers170511Making the logjam worse is the revision to PATTERN a month ago. While the change increase the number of points an inmate could have while still being eligible, the change quietly modified some of the point reductions inmates could earn. Completing a GED used to earn a -4, but now only earns a -2. Completing RDAP fell from a -6 to a -4. Past points for violence increased as well.

The effect of the change was to make some inmates who had been eligible for ETCs suddenly ineligible, further jamming up the calculation works. What’s worse, some inmates who had received adjusted release dates have had those dates rescinded.

NBC, Thousands of federal inmates still await early release under Trump-era First Step Act (July 3, 2022)

DOJ, First Step Annual Report (April 17, 2022)

– Thomas L. Root

Ain’t No Cure For the Summertime COVID Blues – Update for July 5, 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.

JUST WHEN YOU THOUGHT IT WAS SAFE TO COME OUT OF YOUR CELL…

FreeFood220705They’re handing out free food samples at Sam’s Club again, a sure sign that COVID is no more.

So perhaps someone can explain why the number of Bureau of Prisons inmates with COVID doubled in the last week to 444, the highest it has been since Match 2, 2022. The number of sick staffers this past week – 358 on Friday – has not been seen since March 15, 2022. A full 100 BOP facilities reported COVID cases on Thursday, a number not seen since March 9.

The troubling reports came as the BOP announced that Monday that three inmate deaths last fall and winter were actually from COVID. Inmate deaths at FCI Bennettsville last October and at both FCI Florence Camp and FCI Otisville last winter were reclassified as COVID, bringing the federal prisoner COVID death toll to at least 319.

Meanwhile, more COVID bad news: A World Health Organization official said last Monday that the more times a person becomes infected with COVID-19, the more likely the person is to contract long-term health effects from the virus.

longcovid220705“The more times you get it, the more likely you are to be unlucky and end up with long COVID — which is the thing that none of us want because it can be so serious,” David Nabarro, a WHO special envoy for COVID-19, said. “It can knock people off their stride for several months.”

Long COVID happens when someone with COVID-19 develops symptoms that linger for an extended period, according to the Centers for Disease Control and Prevention. The CDC says symptoms could last weeks or months, and even go and come back.

The New York Times reported last week that the COVID Omicron subvariants known as BA.4 and BA.5 have together become dominant among new coronavirus cases in the US. As of the week ending June 22, BA.4 made up 15.7% and BA.5 36.6% of COVID cases nationwide. In recent weeks, more than 100,000 new coronavirus cases have been reported each day on average in the United States, the Times said, “a figure that captures only a portion of the true number. Many infections go uncounted in official reports. Some scientists estimate that the current wave of cases is the second-largest of the pandemic.”

COVIDheart200720

New York magazine reported yesterday, “The newest wave of COVID infections and reinfections, fueled by more transmissible subvariants of the Omicron strain including BA.4 and BA.5, continues to grow across the U.S. As countless Americans gather over the July 4 holiday weekend, it’s entirely possible that there are more new daily infections happening in the country than at any other point in the pandemic other than the Omicron wave. And as the worrisome BA.5 subvariant rapidly rises to what will likely be global dominance, the U.S. isn’t the only country experiencing a surge.

Last week, the U.S. test positivity rate — which is now a more reliable indicator of case surges than official case counts — reached a seven-day average of over 15 percent for the first time since February 3.”

BOP, Inmate Death at FCI Bennettsville (June 27, 2022)

BOP, Inmate Death at FCI Florence’s Satellite Camp (June 27, 2022)

BOP, Inmate Death at FCI Otisville (June 27, 2022)

Business Insider, WHO official says the more times a person gets COVID-19, the more likely they are to be ‘unlucky’ and get long COVID (June 27, 2022)

The New York Times, The Omicron subvariants BA.4 and BA.5 have together become dominant in the US, the CDC estimates (June 28, 2022)

New York magazine, The BA.5 COVID Surge Is Here (July 4, 2022)

– Thomas L. Root

Batting Cleanup for LISA… – Update for June 17, 2022

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wahoo220617We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, we’re cleaning up the week with some odds and ends left over from the week before…

Judiciary Committee Grills Sentencing Committee Nominees: President Biden’s seven nominees to the U.S. Sentencing Commission promised at a Senate hearing last week to prioritize implementing the First Step Act by amending the Guidelines, something the Commission had been unable to do since losing its quorum just as the 2018 law passed.

U.S. District Judge Carlton Reeves (S.D. Miss), nominated to be chairman of the USSC, told the Judiciary Committee that the Commission would also address what he called “troubling” divisions that emerged among courts on sentencing issues during the years it lacked a quorum.

Four Democrat and three Republican picks have been nominated to join the seven-member commission.

Senior U.S. District Judge Charles Breyer (N.D. Cal.), the lone remaining member of USSC, has complained that the Commission’s inability to update its compassionate release policy (USSC § 1B1.13) in light of First Step has resulted in inconsistent decisions across the nation on compassionate release amid the COVID-19 pandemic.

“Today, we take an important step to remedy that problem,” said Judiciary Committee chairman Sen Richard Durbin (D-IL).

Sen Marsha Blackburn (R-TN) jumped on one Democratic nominee, former U.S. District Judge John Gleeson. Gleeson, one of the most thoughtful and creative sentencing judges during his time on the E.D.N.Y. bench, has been a critic of mandatory minimum drug sentences.

“How can you possibly say that more lenient sentencing and reduced penalties for convicted criminals is the answer to our crime problems?” Blackburn complained. Gleeson, now a partner at a Wall Street law firm, responded that as a judge he tried only to show the impact mandatory sentences have on “the individualized sentencing that our system contemplates.”

pissfire220617Meanwhile, former federal defender Laura Mate, a director of the Federal Defenders’ Sentencing Resource Counsel Project, refused demands by Sen Josh Hawley (R-MO) to renounce a detailed 61-page letter to the Sentencing Commission she had co-signed in 2013. The letter had criticized mandatory minimums, especially for some child pornography offenses, with a detailed, well-reasoned argument.

Mate was pilloried by at least one YouTuber for politely dodging Hawley’s question, but given what I know of the good Senator from the Show-Me State, I would resist agreeing with him that the sun rises in the east, because he would end our exchange accusing me of causing dawn to arrive too early.

Republican USSC nominees include Claire McCusker Murray, a Justice Department official during the Trump era; Candice Wong, a federal prosecutor in Washington, D.C., and U.S. District Judge Claria Horn Boom of Kentucky.

The hearing suggests that the Senate will act soon on restoring a functional Sentencing Commission. However, as Ohio State University law professor Doug Berman observed in his Sentencing Law and Policy blog, “it is still unclear exactly when there will be a committee vote and then a full Senate vote on these nominees. I am hopeful these votes might take place this summer, but I should know better than to make any predictions about the pace of work by Congress.”

Senate Judiciary Committee, Hearing (June 8, 2022)

Reuters, Biden’s sentencing panel noms vow to implement criminal justice reform law (June 8, 2022)

Sentencing Law and Policy, Senate conducts hearing for nominees for US Sentencing Commission (June 8, 2022)

Federal Defenders, Letter to Sentencing Commission (July 15, 2013)

rockingchair220617Last Week Makes Mike Long for Retirement:  BOP Director Carvajal is probably giddy at the prospect that his replacement is finally waiting in the wings. 

Besides the USP Thomson investigation being announced last week, the BOP suffered some embarrassing press last week:

•  A Miami TV station reported on a CO’s claim that drones were being used to smuggle contraband into FDC Miami;

•  A Colorado paper reported that the BOP was paying $300,000 in damages to an ADX Florence inmate with Type 1 diabetes who alleged in a lawsuit that he had been denied adequate amounts of insulin;

•  A San Francisco area TV station reported that a former FCI Dublin inmate – who early on told BOP authorities about what has turned into a major sex abuse scandal featuring the arrest of a former warden and four other staffers – says she was punished in retaliation for calling out the staff abuse. “I will never tell another inmate that they should go to report anything to anyone higher up,” the former prisoner told KTVU. “Because all that’s going to happen is it’s going to make their life worse.”; and

•  A former correctional officer at the Federal Medical Center in Lexington, Kentucky, was sentenced to more than 11 years after pleading guilty to sexual abuse of inmates.

Finally, in February, Carvajal told a Congressional committee that the “common criticism” that the BOP is understaffed was a “narrative [that] is routinely misrepresented without reference to the factual data.” Two weeks ago, he told BOP staff in an agency-wide memo that “staffing levels are currently trending downward nationwide.”

Last week, Government Executive reported that the declines have happened in the last four months and that the employees who have quit cite “lack of training and lack of connection to the institution as reasons for their leaving the bureau within the first few years of service.”

Mike must be thinking that the old rocking chair is looking pretty good right now.

WQAD-TV, Justice Department Inspector General launches investigation into USP Thomson (June 9, 2022)

WTVJ, Inmates Attempted to Smuggle Contraband Using Drones, Correctional Officer Says (June 8, 2022)

Colorado Sun, Bureau of Prisons to pay $300,000 to settle lawsuit after diabetic prisoner was allegedly deprived of insulin at Supermax facility (June 7, 2022)

KTVU, Woman who reported Dublin prison sexual abuse claims she was target of retaliation (June 10, 2022)

Government Executive, Federal Prisons Are Losing Staff. The Bureau’s Director Would Like to Fix That By October (June 6, 2022)

– Thomas L. Root

Feds Descend on USP Thomson – Update for June 10, 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.

DOJ INSPECTOR GENERAL LAUNCHES USP THOMSON INVESTIGATION

A week ago, three members of Congress called for an immediate federal investigation into violence and abuse at  USP Thomson, prompted by a Marshall Project/NPR report from two days before.

thomson220610Yesterday, the Dept. of Justice Inspector General launched an investigation into Thomson, based on the news report’s details of inmate deaths and alleged Bureau of Prisons staff abuses.

Sens. Richard Durbin and Tammy Duckworth, and Rep Cheri Bustos (all D-IL), wrote in last week’s letter to DOJ Inspector General Michael Horowitz that it was “imperative” he look into allegations that

• Staff purposely stoked tensions between cellmates and intentionally paired men whom they knew would attack each other;

• Staff encouraged assaults against sex offenders and informants and falsely told inmates that a particular person was a sex offender, resulting in repeated physical and sexual assaults;

• Abusive shackling leaving scars known as “the Thomson tattoo,” including use of a room known as “the dungeon,” where men would lie shackled to a bed for hours without food or water;

• abusive behavior towards incarcerated persons after the SMU was transferred to USP Thomson;

• The highest rate of pepper-spray usage in the BOP; and

• Staff laughing and joking at a Jewish inmate as he lay dying in a hospital following an assault after staff placed him in a recreation cage with white supremacists.

prisonfight220211The letter said, “If these reports prove accurate, they describe conduct that would almost certainly contravene numerous BOP policies, as well as infringing the civil rights of individuals in BOP custody and possibly violating federal criminal statutes.”

Yesterday, AFGE Local 4070 President Jon Zumkehr said in a released statement, “We fully support the investigation into the allegations into USP Thomson and we have also invited Sen. Durbin and Sen. Duckworth to visit USP Thomson.” No doubt Thomson staff also enthusiastically anticipates root canal procedures performed without anesthetic.

Back in May 2020, the union complained that a staff shortage at Thomson was resulting in unsafe working conditions as the BOP used augmentation – assigning non-custody workers like nurses, psychologists and cooks to fill in as correctional officers – to address the employee shortage. WQAD-TV reported that over 2,000 overtime shifts were being authorized every month just to keep up with daily prison functions.

In a speech on the Senate floor yesterday, Durbin – who is chairman of the Senate Judiciary Committee – promised a Committee hearing in the next few weeks on BOP oversight, including the continued overuse of solitary confinement and restricted housing in federal prison facilities such as USP Thomson. Currently, he said, about 7.8% of BOP inmates are housed in a form of restricted housing.

'Enjoy retirement,' Durbin tells Carvajal, 'preferably sooner rather than later.'
‘Enjoy retirement,’ Durbin tells Carvajal, ‘preferably sooner rather than later.’

“We need answers from the Biden Administration on the failure to reduce the use of restricted housing,” Durbin said, “and we will discuss what BOP must do to address the staffing crisis that has contributed to this disastrous situation.”

Durbin also renewed his call for the immediate replacement of BOP Director Michael Carvajal, who announced his retirement months ago but is staying on until a replacement is named.

WQAD-TV, Justice Department Inspector General launches investigation into USP Thomson (June 9, 2022)

Press release, Durbin Slams BOP Mismanagement, Allegations Of Abuse At USP Thomson (June 9, 2022)

Sen. Durbin, Letter to DOJ Inspector General (June 1, 2022)

NPR, Lawmakers call for probe into deadly federal prison (June 2, 2022)

– Thomas L. Root

BOP: Not a ‘Common Jailor’ But A Pretty Indifferent One – Update for June 3, 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.

WHERE HAVE WE HEARD THIS ONE BEFORE?

Complaints about the BOP healthcare system are as common as kvetching about the food it serves. There may be a reason for that.

chickie220603Vincent “Chickie” DeMartino, serving the final 30 months of a 300-month sentence for an attempted mob hit, sought compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) because of his deteriorating health – in particular, complications with his right eye – and because of the BOP’s “cavalier attitude” in addressing his worsening medical problems.

Vince argued that his poor health and the BOP’s refusal to do anything about it constituted the “extraordinary and compelling” reasons required by the statute for a reduction of his sentence to time served.

Last week, the United States District Court for the Eastern District of New York agreed. As the Daily News colorfully put it

A Brooklyn judge sprang a violent mobster from prison because he said the federal Bureau of Prisons did a lousy job taking care of the wiseguy’s medical problems.

Federal Court Judge Raymond Dearie issued a scathing ruling Thursday, saying the feds weren’t competently treating made man Vincent “Chickie” DeMartino’s maladies. The goodfella had more than two years left of his 25-year sentence for an attempted hit on a fellow Colombo family member.

The Court found that Vince suffered from high blood pressure which puts him at severe risk of stroke and numerous ophthalmologic issues. Vince said he was essentially blind in his right eye and had 20/400 vision overall, which made him legally blind.

healthcare220224What made his condition “all the more extraordinary and compelling,” the Court held, was “the BOP’s lack of responsiveness and candor with respect to his medical conditions.” Despite the BOP being aware of the condition, the District Court said, “the record reflects a consistent pattern on the part of the BOP of downplaying Mr. DeMartino’s conditions and delaying treatment. Despite the severity of his ocular conditions, it has been a herculean task for Mr. DeMartino to see an ophthalmologist.”

A month ago, the Court told the parties that Vince required “immediate appropriate care.” The government promised the Court that Vince would see an outside specialist right away. That of course did not happen. Vince’s prior visits to the eye doc had been canceled, according to the BOP, because the facility Health Administrator asserted that the “retina specialist does not need to see the defendant again unless he is having further complications.”

This statement, charitably put, lacked the kind of candor that the government would have demanded from Vince, were the tables turned.. The Court found the statement to be “misleading, as the Health Administrator’s note omitted reference to the ophthalmologist’s recommendation that Mr. DeMartino undergo pars plana vitrectomy surgery.”

When the Court ordered the Government and BOP to provide clarification about Vince’s need for surgery from the same ophthalmologist who had recommended surgery, the Government pulled the old “bait-and-switch.” It provided a memorandum from an optometrist – not an ophthalmologist and definitely not the one who had recommended the surgery – to support the appalling lack of care. The BOP optometrist said Vince’s surgery was unnecessary, but then qualified his opinion by admitting that he could not “directly determine the need, or lack thereof, for surgery” and would need to “defer questioning related to a need for surgery and/or the urgency of surgery to an ophthalmologic surgeon.”

That’s sort of like saying “it’s definitely not going to rain tomorrow, but I have not seen a weather forecast and even if I had, I’m not a meteorologist and I really have no idea whether what I just said is right or not.”

healthbareminimum220603“All told,” the court ruled, “this record leaves the Court with the impression that the BOP has undertaken the bare minimum of care for Mr. DeMartino, limiting its efforts to ensuring that he does not require emergency surgery, but minimizing the fact that his vision is failing and refusing to implement any meaningful plan to monitor or treat the conditions in the longer term… The BOP is not a common jailor. Theirs is a far more challenging and vital responsibility. Human beings are entrusted to their care for decades on end. There is no excuse for inaction or dissembling and, in this Court’s view, no alternative to immediate release.”

Order (ECF 276), United States v. DeMartino, Case No 1:03cr265 (EDNY, May 26, 2022)

– Thomas L. Root

Reluctant Director Candidate Would Inherit “Crisis-Plagued” BOP – Update for May 23, 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.

MOHR RUMORED TO BE LEAD CANDIDATE TO REPLACE CARVAJAL

Associated Press has reported that Gary Mohr, former director of the Ohio Dept of Rehabilitation and Correction, has emerged as the leading contender to run what AP calls “the crisis-plagued federal Bureau of Prisons.”

Citing three people familiar with the matter, AP said last Friday that Mohr is among those at the top of the list of candidates to replace BOP Director Michael Carvajal, who resigned in January but is remaining in the post until a successor was named.

A final decision has not been yet been made, AP said, and it’s not clear when an announcement will be be forthcoming.

clownshow220523AP reported that Mohr said he was “shocked to see an article describing me as a top contender” for the position and denied that he had applied or been interviewed. However, AP said, those familiar with the process “insisted Saturday that Mohr remained among those being seriously considered for the position.”

ironyalert220523So somebody here’s not telling the truth. If Mohr is truly in the running, then his falsely denying that he’s applied is not the best look for someone stepping into a position where credibility would be refreshing. Of course, it may be that the BOP really is floating his name as a finalist for a job he’s never applied for. Except that would suggest that the people responsible for hiring the new director are incompetent. And how could that be?

Mohr, with more than 47 years in corrections, might be a good fit for the job. His corrections career began in a teaching position in the Ohio prison system. He has held other posts since, including as a warden, head of Ohio’s youth prisons system, and eventually Ohio DRC Director from 2010 through 2018. After retiring from ODRC, he became president of the American Correctional Association and formed a prison consulting firm focused on promoting system reform “aimed at providing a sense of hope for those under confinement and the staff responsible for their supervision,” according to Correctional News.

As head of Ohio’s prison system, Mohr oversaw over 12,000 employees and about 50,000 inmates at 28 facilities. The BOP is budgeted for around 37,500 employees, operates 122 facilities and has about 157,000 inmates.

candor220523As ODRC director, Mohr sought to reduce the state’s prison population and “spearheaded efforts to reduce the number of first-time, nonviolent offenders behind bars,” AP said. Having managed to cut prisoners by only about 1,000 inmates in his tenure, Mohr said when he left the director’s position that he was “extraordinarily disheartened” he couldn’t do more.

That, at least, is a candid appraisal, and a refreshing change from the current director, to whom every BOP misstep over the past few years has really seemed to Mikey to be “a testament to the hard work of our dedicated professional staff who support public safety and promote reentry.”  Or (remember this one?), “The Bureau has a robust infrastructure to educate and train staff as to prohibited actions and to advise all persons (staff, inmates and the public) as to how to report misconduct.”

If Mohr takes the job, he may find the situation he’s marching into exceeds even the AP’s characterization of the BOP as “crisis-plagued.” This past week alone:

• True Crime: The District of Oregon US Attorney announced that a former FCI Sheridan correctional officer (CO) had pled guilty to a bribery and contraband smuggling conspiracy. Nickolas Herrera admitted guilt in a conspiracy to smuggle contraband to an inmate, beginning with food, clothing, and cigarettes but morphing into cellphones and controlled substances.

• Sexual Predator:  In Dallas, a former CO at FMS Carswell, pled guilty to sexually abusing several female inmates there. According to the plea agreement, Luis Curiel admitted to three separate sexual encounters with inmates in October 2021.

pervert160728• Sexual Pervert: A BOP CO at FDC Los Angeles last week admitted to sodomizing an inmate while she was quarantining in her cell after a positive COVID test, according to a newly unsealed plea agreement unsealed along with an information charging Jose Viera with deprivation of civil rights under color of law. The disturbing and disgusting assault – for which ample DNA evidence exists, if you get my drift – occurred five days before Christmas 2020.

• A crisis of credibility: Four months after the fact, the BOP last week got around to admitting to two more inmate deaths from COVID in January, one at Englewood and another at Leavenworth. Meanwhile, the number of BOP employees with COVID has been steadily climbing in the last month, now at 265, while the number of sick inmates has been falling. The reason may have something to do with testing inmates for the coronavirus: as of three months ago, the BOP running total of inmate COVID tests since the start of the pandemic was 128,895. As a running total, of course, it should only be going up or – at worst – remaining unchanged.  But not in the BOP’s wacky world of numbers. As of last Friday, that number had actually fallen to 128,719.

crazynumbers200519Most charitably, it seems that no testing is being done anymore. The cynical view might be that none of the BOP’s COVID numbers are reliable. But with national COVID numbers and BOP employee infections – numbers the BOP cannot control – going up, it is quite puzzling that inmate numbers keep falling.

Mr. Mohr, taking you at your word, we completely understand why you might want to pass on this job.

Associated Press, Former Ohio prisons chief top contender to run US prisons (May 21, 2022)

Correctional News, Gary Mohr (October 18, 2021)

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

US Attorney’s Office, Former Federal Correctional Officer Pleads Guilty for Role in Bribery and Contraband Smuggling Conspiracy (May 19, 2022)

KTVT-TV, Dallas, Fort Worth prison guard admits sexually abusing inmates (May 18, 2022)

Daily Beast, Prison Guard Allegedly Sodomized Inmate Quarantining With COVID (May 17, 2022)

– Thomas L. Root