Tag Archives: BOP

Home Confinement Removal Without Hearing Challenged – Update for May 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.

CONNECTICUT SUIT ARGUES HOME CONFINEMENT REVOCATION VIOLATED DUE PROCESS


homeconfinement220511Under the CARES Act, the Federal Bureau of Prisons was authorized to place inmates in extended home confinement as a means of getting medically vulnerable people out of the path of the coronavirus. Under this authority, the BOP has sent about 9,000 inmates to home confinement, where they remain in their residences except for work and a very few tightly-controlled exceptions (weekly groceries, medical appointments, church services and the such).

BOP Director Michael Carvajal has touted the success of the program. He told the Senate Judiciary Committee that only 289 inmates had been returned to prison after being on CARES Act home confinement, and only three of those were returned because of new criminal conduct.

The flip side of that coin is that the BOP sees home confinement as just another prison designation, meaning that the BOP can pull someone at home back to prison for the flimsiest of reasons, or for no reason at all. The government has argued that because inmates have no due process right to placement in any particular prison facility, they have no grounds to challenge a decision to revoke home confinement.

Now, three FCI Danbury inmates have filed a habeas corpus action in U.S. District Court in Connecticut claiming their release to home confinement under the CARES Act was revoked without due process.

“There’s no due process for resolving these cases or real consideration whether the person should be pulled back to prison,” said their attorney Sarah Russell, director of the Legal Clinic at Quinnipiac University School of Law. “There is no opportunity for a hearing or an argument even when children are being impacted.”

On home confinement for over a year, the lead petitioner, Nordia Tompkins, had been able to regain custody of her daughter, enroll in vocational classes and hold down a job. She was sent back to prison after the halfway house supervising her could not reach her by phone because she was in class at an approved time.

The government has argued that because the inmates remained in BOP custody, they had no “protected liberty interest” in remaining on home confinement. Such an interest is necessary in order to trigger a right to procedural due process.

home190109However, the inmates – represented by Yale and Quinnipiac University law school professors – argue that other factors, “such as whether one can form close family and community ties, seek and obtain employment”, are “markers of a liberty interest. It does not matter that someone is serving sentence or is technically in the ‘custody’ of prison authorities. Because Ms. Tompkins has been able to reside with her children and take care of them, attend a community school to further her education, and seek employment, she has a liberty interest in remaining on home confinement under the Due Process Clause [and] was entitled to basic due process protections…”

Danbury News-Times, Danbury prison inmates file lawsuit over home confinement getting revoked (May 5, 2022)

Tompkins v. Pullen, Case No. 3:22cv339 (D.Conn, filed Mar 2, 2022)

– Thomas L. Root

Ratting Out the Federal Bureau of Prisons – Update for May 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.

AP WANTS TIPS ON BOP MISMANAGEMENT

About three summers ago, Associated Press reporters Michael Balsamo and Michael Sisak wondered how Jeffrey Epstein, at the time probably the highest-profile federal inmate in America, was able to commit suicide while in constantly-monitored single-cell lockdown.

lazyguard191127They found that “the dysfunction surrounding Epstein’s suicide — guards sleeping and browsing the internet, one of them pulled from a different prison job to watch inmates, both working overtime shifts — wasn’t a one-off but a symptom of a federal prison system in deep crisis.”

Since then, Balsamo and Sisak have reported on sexual abuse at FCI Dublin, crumbling infrastructure and chronic staffing shortages, pervasive criminal misconduct among BOP employees, and management fiascos like the December 2020 executions at USP Terre Haute that turned into COVID superspreader events.

Finally, in January, they broke the surprise resignation of BOP Director Michael Carvajal, a Trump administration holdover, and his top deputy.

snitchin200309Last week, AP published a retrospective that included a surprising invitation to “whistleblowers, inmates and their families, and anyone else who suspects wrongdoing or knows what’s going on and tells us about it” to contact AP online or the reporters by email with tips about the BOP.

What might there be to tell? Congressman Randy Weber (R-Texas) may have a suggestion. After another inmate died at USP Beaumont in a fight with a fellow prisoner on May 1st, Weber – a member of the BOP Reform Caucus – wrote Carvajal to express his “dismay[] that, time and time again, the especially dire situation at FCC Beaumont remains neglected by the BOP… I have been informed by COs at USP Beaumont that BOP has used the emergency recall system several times to fill vacant posts. Actions like this only serve as a band-aid to the underlying problems.”

Weber told Carvajal that he “want[s] to be part of the solution, especially at FCC Beaumont, but first, these problems need to be acknowledged soberly by BOP leadership.”

The latest killing happened the same week that AP’s Balsamo and Sisak reported that Carvajal’s March visit to FCI Dublin – site of rampant sexual abuse of female inmates by staff (including the prior warden) – was sabotaged by Dublin employees.

charliebrownfootball220510“Officials moved inmates out of the special housing unit so it wouldn’t look as full when the task force got there,” AP reported, “and they lied to Carvajal about COVID-19 contamination so inmates in a certain unit couldn’t speak to him about abuse.”

One inmate did manage to confront Carvajal on the rec yard, and spent 15 minutes describing in graphic detail of her alleged abuse. She “grew increasingly upset,” the story said, “calming down only after prison officials brought her tissues. She was eventually taken out of the room and brought to a prison psychologist, where she was offered immediate release to a halfway house. She objected. She wanted to wait so she could tell her story publicly to congressional leaders expected at the prison.”

However, “Bureau of Prisons and Justice Department officials told the woman that because she was a potential witness, she couldn’t talk about the investigation.” She was hustled off to a halfway house.

So far, the Biden Administration has not announced a replacement for Carvajal.

Associated Press, The story so far: AP’s investigation into federal prisons (May 4, 2022)

Rep Randy Weber, Letter to BOP Director Carvajal (May 2, 2022)

Associated Press, Abuse-clouded prison gets attention, but will things change? (May 5, 2022)

– Thomas L. Root

Courts Questioning BOP Medical Care As COVID Surge Loom – LISA Newsletter for May 9, 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.

COVID SURGE FORECAST AS BOP’S RESPONSE QUESTIONED

The Biden administration is warning the nation could see 100 million COVID infections and a potentially significant wave of deaths this fall and winter, driven by new omicron subvariants that have shown a troubling ability to overcome vaccines and natural immunity.

The projection is part of an Administration push to persuade lawmakers to appropriate billions more to purchase a new tranche of vaccines, tests and therapeutics, released last Friday as the nation is poised to reach a milestone of 1 million COVID deaths sometime this week.

omicron211230Omicron variants BA.4 and BA.5 are causing a spike in cases in South Africa, where it’s winter, continuing a pattern of semi-annual COVID-19 surges there. The genetic makeup of these variants — which allows them to evade immunity from previous infection — and the timing of their emergence in the Southern Hemisphere point to a surge in the United States in the coming months, says UCLA Health clinical microbiologist Dr. Shangxin Yang.

The US also should expect a summer coronavirus surge at least across the South. Last week, former White House COVID response task force coordinator Deborah Birx said, “We should be preparing right now for a potential surge in the summer across the southern United States because we saw it in 2020 and we saw it in 2021.” With more infections come more opportunities for the virus to mutate, according to WHO’s Maria Van Kerkhove.

As it is, an anticipated summer surge of COVID in the south may have begun. The seven-day national average of new infections more than doubled in five weeks from 29,000 on March 30 to nearly 71,000 last Friday. White House officials have said they’re concerned that much of the nation’s supply of antivirals and tests will be exhausted as a result of the anticipated increase in cases in the South. Without those tools, they say the country would be unprepared for a fall and winter surge, and deaths and hospitalizations could dramatically increase.

healthcare220224Predictions of future COVID waves come as the Bureau of Prisons’ COVID medical care is subjected to fresh criticism. Healthcare news outlet Stat reported last week that since November 2020, the BOP “used just a fraction of the antiviral drugs they were allocated to keep incarcerated people from getting seriously ill or dying of Covid-19.” Stat said internal BOP records show the Bureau used less than 20% of the stock “of the most effective antiviral drugs for treating COVID.”

In the case of Pfizer’s effective antiviral pill, Paxlovid, BOP prescription records over the two years ago “include just three prescriptions for Paxlovid, despite the fact that the drug is easy to administer and has been proven to significantly reduce hospitalization and death from Covid-19.”

Two compassionate release grants last week under 18 USC § 3582(c)(1)(A)(i) on opposite sides of the nation suggest that district courts may be tiring of the BOP’s blandishments that its medical care is adequate. In Oregon, a granted early release to James Wood, a 53-year-old man who had served 68% of his sentence for two bank robberies. The court held Jim had served significant periods during the pandemic without access to his psychiatric medication or received medication that made his symptoms worse.

The judge called Jim’s time at FCI Sheridan during the pandemic “an excruciating experience.” In addition to frequent lockdowns, which applied to all inmates, Jim suffered an injury that prison medical services failed to treat. The injury festered, but Jim was finally able to knock back the infection by pouring hot water on the wound.

The government argued that medical records did not substantiate that Jim had been denied treatment. He replied that that was unsurprising inasmuch as the medical staff refused to do anything, a refusal that would not have generated a record.

toe220509Meanwhile, a Connecticut federal court released Tim Charlemagne, who was doing time for a drug offense, after finding “the record… demonstrates that Mr. Charlemagne has received inadequate care for his serious medical conditions since the day he began his period of incarceration.”

Those conditions included morbid obesity, high blood pressure, and diabetes. Tim didn’t receive the foot care in prison that his podiatrist recommended when he was sentenced, and all the toes on his right foot had been amputated as a result, according to the Federal Public Defender. The government argued that Tim was being transferred to a medical center from FCI Schuykill (where he presumably would get better care), but it admitted no date set was set for the transfer.

Tim had served 14 months of his 41-month sentence. He will do another nine months on home confinement before beginning his supervised-release term.

Both of these decisions are noteworthy because they combine a general acknowledgment of miserable prison conditions during the pandemic with specific findings that BOP healthcare had failed the inmates seeking compassionate release. The cases suggest that successful compassionate release motions as COVID surges again will focus on an inmate’s individual allegations of inadequate medical care.

Washington Post, Coronavirus wave this fall could infect 100 million, administration warns (May 6, 2022)

US News, New Omicron Subvariant Spreading in US as Coronavirus Cases Increase (May 2, 2022)

UCLA Health, New omicron variants and case surge in South Africa portend summer rise in COVID-19 cases here (May 6, 2022)

Stat, Prisons didn’t prescribe much Paxlovid or other Covid-19 treatments, even when they got the drugs (May 5, 2022)

Portland Oregonian, Judge grants compassionate release to convicted bank robber, calls his time at Oregon’s federal prison ‘excruciating experience’ (May 6, 2022)

United States v. Wood, Case No 3:18-cr-00599 (D.Ore, compassionate release granted May 6, 2022)

Windsor Journal-Inquirer, Judge orders release of Windsor man in Enfield OD death case (May 6, 2022)

United States v. Charlemagne, Case No 3:18-cr-00181, 2022 U.S. Dist. LEXIS 82270 (D.Conn, May 6, 2022)

– Thomas L. Root

COVID: Forgotten But Not Gone – Update for May 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.

COVID’S NOT YET GONE

deadcovid210914COVID reminded us last week that it isn’t eradicated. On April 20th, the BOP reported 60 inmates and 150 staff cases. As of last night, inmate cases had more than doubled to 148 cases, and staff cases remained stubbornly high at 158.

The number of BOP facilities with COVID climbed 45% to 64, half of the total operated by the Bureau.

This is not surprising. Centers for Disease Control and Prevention data released yesterday show that the latest COVID variant,  BA.2.12.1,  now makes up 36.5% of all newly-sequenced positive Covid tests. That’s a jump of close to 100% in the past two weeks.

Incidentally, the United States recorded its millionth COVID death yesterday.

The Washington Post reported last week that COVID’s toll is no longer falling almost exclusively on the unvaccinated. The vaccinated made up 42% of fatalities in January and February during the Omicron surge, compared with 23% of the dead in September, the peak of the Delta wave. As of last Friday, 82.1% of inmates had been vaccinated, while 71.1% of staff had gotten the jab.

caresbear210104Forbes last week reported that federal “inmates who have served a certain percentage of their sentence and who also have underlying health conditions, are still being processed for home confinement. However, the CARES Act releases have slowed because the number of cases in prisons have plummeted and staff is also stressed to process prisoners because they are dealing with the First Step Act (FSA) implementation.” Due to the need to release prisoners suddenly awarded back FSA earned-time credits, prisoners “who have health issues and could be transferred under the CARES Act, are being pushed to the back of the line so that overworked case managers can make provisions for thousands of prisoners who will be transitioning to post-release custody in the coming months.”

Writing in Forbes, Walter Pavlo said, “While case managers struggle to keep up with the growing demands of their jobs, the healthcare in the BOP has been under stress as well. It is the perfect storm of poor underlying health of a prisoner combined with BOP staff shortages and poor healthcare” puts vulnerable inmates at risk.

Washington Post, Covid deaths no longer overwhelmingly among the unvaccinated as toll on elderly grows (April 29, 2022)

Forbes, With COVID-19 Cases On Rise, Bureau Of Prisons Slowly Still Transferring Inmates Under CARES Act (April 27, 2022)

– Thomas L. Root

‘Disheartened’ BOP Director Tells Staff ‘Don’t Be Evil’ – Update for April 5, 2022

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MANPOWER AND CORRUPTION WOES CONTINUE TO PLAGUE BOP
Carvajal advises BOP staff...
Carvajal advises BOP staff…

The indictment of a fifth Bureau of Prisons employee in connection with the ongoing sexual abuse scandal at FCI Dublin (California) has caused ‘disheartened’ outgoing BOP Director Michael Carvajal to remind all 36,000-plus BOP staff “that we ALL have a responsibility to protect staff and inmates by reporting wrongdoing of any kind, especially misconduct, and we must have the courage to do so.”

According to the indictment unsealed last Friday, Enrique Chavez, a Cook Supervisor/Foreman at Dublin, engaged in abusive sexual contact with inmates in October 2020. Chavez joins former Warden Ray Garcia, former Chaplain James Highhouse, Safety Administrator John Bellhouse, and recycling technician Ross Klinger as defendants in the unfolding FCI Dublin sex abuse scandal.

Chavez’s arrest came only weeks after eight members of Congress, including Rep. Eric Swalwell (D-CA) (whose district includes Dublin), demanded an investigation into allegations of abuse and misconduct at the prison.

Writing in Forbes last week, Walter Pavlo said, “The BOP has a substantive history of corruption, staff shortages and, recently, delays in implementation of The First Step Act… Tens of thousands of prisoners who believe they have earned credits are awaiting a backlogged BOP to determine when they will be released.”

paperwork171019Pavlo said, “I spoke with Mary Melek, a case manager at FDC Miami who had 364 prisoners on her caseload until a recent hire cut that in half, still over the recommended 150:1 ration. Melek expressed her frustration, ‘There are 5 augmented openings on a shift, openings where the BOP has planned augmentation, and that has pulled me away from my work’. The augmentation not only applies to case managers, but other workers, including health services where FDC Miami is at 56% of its staffing rate.”

Help could be on the way to the BOP in the form of money. The recently-passed FY2022 omnibus spending bill included $7.865 billion for BOP salaries and expenses, a $200 million dollar increase over the agency’s requested funding. According to a press release from AFGE National Council President Shane Fausey, the BOP is “expected to hire additional full-time correctional officers in order to reduce the reliance on augmentation and improve staffing beyond mission-critical levels in custodial and all other departments, including medical, counseling, and educational positions.”

President Biden’s proposed budget for next year, released last week, asks for even more: $8.18 billion “to ensure the health, safety, and wellbeing of incarcerated individuals and correctional staff; fully implement the First Step Act and ease barriers to successful reentry,” according to the DOJ.

bullshit220330The money, of course, does not address the recent spate of corruption. Carvajal said in last week’s internal communication to BOP staff that “the recent media attention regarding misconduct in the BOP as being characterized using phrases such as “cover-ups,” “sign of a larger problem” and “toxic culture of sexual abuse.” These phrases are not true characterizations of the vast majority of the staff who work in our facilities across the Nation.”

Of course not. That is, unless you read the inmate email I get. Walter Pavlo seems to feel the same, writing that “Carvajal could have noted that since his rising to the agency’s highest position” a House subcommittee investigation found that BOP “discipline and accountability is not equitably applied … For high ranking officers, bad behavior is ignored or covered up on a regular basis, and certain officials who should be investigated can avoid discipline.”

DOJ, Correctional Officer At FCI Dublin Charged For Abusive Sexual Contact With Female Inmate (March 23, 2022)

Pleasanton Weekly, Another guard at Dublin prison charged with sex abuse of inmate (March 28, 2022)

Forbes, ‘Disheartened’ Director Of Bureau Of Prisons Calls On Staff To Out Corruption (March 31, 2022)

DOJ, Department of Justice Fiscal Year 2023 Funding Request (March 28, 2022)

Forbes, Bureau Of Prisons Is Overworking Its Most Critical Staff Positions During First Step Act Implementation (March 31, 2022)

– Thomas L. Root

COVID Isn’t Over, And Neither Should Be Compassionate Release – Update for March 22, 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.

DON’T GIVE UP ON COMPASSIONATE RELEASE

“A triumphant President Joe Biden all but announced an end to the pandemic in the USA on Sunday… declared that the U.S. had achieved “independence” from the coronavirus…”

deadcovid210914Really? Is COVID over? Well, that quote would suggest it, except that Biden said that about nine months ago. A month after the Prez did his victory dance, COVID Delta blasted through FCI Texarkana, followed by the rest of the BOP. And that was only a prelude to Omicron, that at one point had 9,500 inmates sick at the same time.

As of last week, a surge in the new COVID variant BA.2 in Western Europe had experts and health authorities on alert for another wave of the pandemic in the USA. BA.2, even more contagious than the original strain, BA.1, is fueling the outbreak overseas, and will be here soon, experts say.  Last Sunday’s Times said, “Another COVID surge may be coming. Are we ready for it?”

At the same time, the number of prisoners in Bureau of Prisons custody increased by about 1,150 in the past month alone. Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog that he

assumes this new data reflects some ‘return to normal’ operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and many fewer COVID-related releases) producing this significant one-month federal prison population growth. But, whatever the particulars, I will not forget that candidate Joe Biden promised to ‘take bold action to reduce our prison population” and to “broadly use his clemency power for certain non-violent and drug crimes.‘ Fourteen months into his administration, I am unaware of any bold action taken by Prez Biden and he has still yet to use his clemency power a single time, let alone broadly.

quit201208Prisoner numbers are the only thing going up. About 6,200 BOP employees left the agency in the last two years, which works out to almost nine people a day. 8.7 employees departing every day during that time period. The BOP refuses to give precise current numbers, but Insider magazine reported that from July 2021 to March 2022, it hired fewer than 2,000 replacements.

A BOP employee survey last year found that since the pandemic began, the “majority of respondents reported feeling increased stress or anxiety at work and being asked to perform tasks outside their normal duties.” Nearly one in three respondents who answered that they were stressed from the job reported that they have considered leaving the BOP, according to the survey.

Last week, the Dept of Justice released the promised memorandum ordering U.S. Attorneys not to require defendants to waive their right to file compassionate release motions as a condition of getting a plea deal. Notably, the DOJ told U.S. Attorneys that “if a defendant has already entered a plea and his or her plea agreement included a waiver provision of the type just described, prosecutors should decline to enforce the waiver. “

All this means compassionate release probably is far from over, both because of more COVID and as a means of addressing overcrowding. In a lot of places, it has played a role in correcting harsh sentences that could not be imposed today.

But not everywhere. The 11th Circuit is infamous for refusing judges the discretion to use sentences that could not be imposed today as a reason for compassionate release. Last week, the 8th Circuit made clear it had joined the 11th.

Antonio Taylor was convicted of nine offenses, three of which were 18 USC § 924(c) violations. The § 924(c) law at the time required consecutive prisons terms of 5, 25, and 25 years for the violations years. Tony got sentenced to 60 years (720 months).

The First Step Act changed the law so that the harsh consecutive sentences could not be imposed. If James had been sentenced after First Step passed, he would have faced 18 years, not 60. Tony filed for compassionate release in 2020, arguing the harshness and unfairness of his sentence. Similar arguments have won in a number of other circuits, starting with the 2nd Circuit in September 2020’s Brooker decision.

compassionlimit220322The Circuit, following its February decision in United States v. Crandell, held that “that a non-retroactive change in law, whether offered alone or in combination with other factors, cannot contribute to a finding of ‘extraordinary and compelling reasons’ for a reduction in sentence under § 3582(c)(1)(A).”

As it stands now, a nonretroactive change in sentencing law can win a prisoner a sentencing reduction if he or she was sentenced in federal court in any of nine circuits. As for the other three, the inmate is out of luck. This cries for Supreme Court resolution.

Bloomberg, Biden Declares Success in Beating Pandemic in July 4 Speech (July 4, 2021)

Washington Post, A covid surge in Western Europe has US bracing for another wave (March 16, 2022)

Sentencing Law and Policy, Federal prison population, now at 154,194, has grown by well over 1100 persons in a short month (March 18, 2022)

Business Insider, Federal prison working conditions are getting worse despite Biden’s promise to improve conditions, staffers say (March 18, 2022)

DOJ, Department Policy on Compassionate Release Waivers in Plea Agreements (March 11, 2022)

United States v. Taylor, Case No 21-1627 (8th Cir., March 18, 2022)

– Thomas L. Root

Stress and Angst Not Enough Injury to Justify Civil Suit Against the BOP – Update for March 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.

NO HARM, NO FOUL

dongarra220311Jordan Dongarra, a convicted bank robber, was designated to serve his sentence at a newly-opened BOP facility, USP Canaan in Pennsylvania. When he arrived, Officer Smith issued him an ID card and clothing that mislabeled him as a sex offender. Jordy protested, and asked for new ID and threads. Officer Smith refused, saying he did not care and that he “hopes you know how to fight… and use a knife.”

Branded by his ID and T-shirt, Dongarra tried to explain the situation to other prisoners. Out of fear, he skipped all his meals and shed lots of weight. He refused to go out for recreation. “All this made him feeble and unfocused,” the Court said. He filed an administrative remedy, a so-called BP-9, asking the Warden to fix things by giving him normal prison clothes and an ID without the “sex offender” label.

The Warden never answered Jordy’s BP-9. Nevertheless, a few weeks after he filed it, the prison finally replaced his ID card and T-shirt with duds and accessories more appropriate for, say, your ordinary bank robber.

money160118Jordan sued Officer Smith in an action brought under Bivens, asking for money damages and an injunction to order the prison not to do it again. The district court threw out the case, and Jordan appealed.

Last week, the 3rd Circuit upheld the dismissal. “The 8th Amendment bans cruel and unusual punishments,” the Circuit said. “When we parse his complaint, we see that Dongarra is alleging two distinct 8th Amendment wrongs. First, he challenges the conditions of his confinement: living in prison while branded a sex offender, he says, made him anxious and stressed. Second, he challenges the prison’s failure to protect him. Smith, he argues, was deliberately indifferent to the risk that other prisoners would assault a supposed sex offender.”

The 3rd said that Jordy’s conditions-of-confinement claim failed “because dubbing him a sex offender did not deprive him of a basic human need.” His “failure-to-protect” claim, however, did allege an 8th Amendment violation.

The problem with the “failure-to-protect” claim, the 3rd said, was that it fell short on actual injury: you can’t collect damages for an assault that never happened.

“Rights do not always have remedies,” the 3rd Circuit said. “Often, someone can violate a right without paying full compensation. For instance, a valid claim can be blocked by sovereign or qualified immunity. So too here. Dongarra claimed administrative and injunctive relief, but he cannot get damages for any past harm.”

taketheshot211021This is a tough lesson for inmates to absorb. All the time, I hear from people who want to sue – and promise that any lawyer I find for them to take the case will become fabulously rich on the damages – because the Bureau of Prisons delayed medical treatment or held them in quarantine too long or denied their units recreation time or some other complaint. The complaints are usually correct, but the inmates cannot point to any actual harm they suffered other than stress, aggravation or ennui.

But popular media accounts notwithstanding, you really do need to be damaged before you can collect money for it. Juries are never terribly sympathetic to inmate plaintiffs to begin with. Telling Joe and Jane Juror in essence that the BOP was mean to you and you were upset by it rarely results in jury awards. In Jordan Dongarra’s case, it did not even result in the right to bring the claim.

Dongarra v. Smith, Case No. 20-2872, 2022 U.S. App. LEXIS 5347 (3d Cir. Mar. 1, 2022)

– Thomas L. Root

Everything’s Running Backwards (Or Sideways) at the BOP – Update for March 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.

THE BOP’S COLLAPSING COVID UNIVERSE

hawking220303The famed physicist Stephen Hawking theorized that there would come a time when the universe stopped expanding and would start collapsing instead. When that happened, he said, time (and everything else) would run backward.

The BOP has made it happen. How else does one explain the fact that the total number of COVID tests done by the agency peaked at 129,677 on January 25, 2022, and has fallen ever since? As of last night, the BOP claimed to have tested 790 fewer people since April 2020 than it claimed to have tested a little more than a month ago.

At this rate, the BOP is “untesting” more inmates a day than it is testing.

This is not surprising. The total number of inmate COVID cases peaked a year ago in February and then began a steady decline that made keeping accurate records of how many BOP prisons had caught the virus since April 2020 impossible. The number dropped by 5,300 until just before Christmas. In other words, about 3% of the inmate population “uncaught” COVID in the last year.

How is this possible? Only Hawking knows…

Then there’s the problem with the official vaccine count. Forty-one BOP facilities claim to have vaccinated more than 100% of their inmates. For instance, FCI La Tuna (on the Texas-New Mexico state line) has an inmate population of 967. Yet as of last Friday it claimed to have vaccinated 1,239 inmates. To be sure, inmates come and go. Some transfer, some are released, some newbies arrive. But across the system, the BOP claims to have vaccinated more than 4,000 prisoners than it has in custody.

ratchet211108A year ago, the agency quietly adopted the voodoo standard that it would subtract from its inmate COVID total anyone who had gotten COVID while a BOP prisoner but later was released. Sort of like the person was never an inmate and the COVID case had never occurred. That metric was weird enough, apparently intended to obscure how badly the BOP COVID mitigation plan had failed. Ironically, the agency has seemed to go the other way on vaccinations: a prison counts an inmate vaccination on its tally long after the prisoner is released.

The BOP keeps its finger on the COVID scale. Its rule for recordkeeping is to adopt whatever standard that makes it look good, accuracy be damned.

The BOP claimed 459 inmates recovered from COVID between a week ago last Friday and last Wednesday. But then, only three recovered over the next three days. As of Friday, 1,253 prisoners and 1,019 employees were sick. As of last night, the number fell to 475 inmates and 671 staff still with COVID. The BOP said COVID remained in 113 facilities.

At least 305 inmates remain dead. There’s not much the BOP can do about those numbers. The BOP reported last week that two inmates, one at Tucson and one at FMC Lexington, have died of COVID. One got sick on January 14 and was quickly declared “recovered” on January 24. The second got sick on January 18, and “recovered” even more quickly, after only seven days.

Despite being declared “recovered… in accordance with the Centers for Disease Control and Prevention (CDC) guidelines,” as the BOP always defensively puts it, one prisoner went to the hospital eight days after recovery and died there. The other died in his cell.

The BOP currently reports that 70.7% of staff and 76.4% of inmates have been vaccinated. Both of those numbers are squishy for reasons already mentioned. (The total number of BOP employees (36,553) has dropped by 138 over the past few weeks).

Threatening to lock up BOP employees: Great for morale in an agency that can't hold on to workers...
Threatening to lock up BOP employees: Great for morale in an agency that can’t hold on to workers…

Remember a month ago, when a BOP employee gave two U.S. senators a tour of FCI Danbury after the top brass there refused them entrance? On Feb 11 Shaun Boylan, a BOP financial program specialist and vice president of the BOP employees’ union at Danbury, has filed a complaint with the BOP’s Equal Employment Opportunity Office claiming he has been repeatedly retaliated against for engaging in union activities, including giving Senators Richard Blumenthal and Chris Murphy (both D-CT) a tour of the facility in January.

Boylan said the harassment included his supervisor telling others that “I would be assigned to the phone room and that criminal charges are pending against me.”

The BOP said it “altered” the congressional tour to maintain COVID-19 protocols. Danbury FCI is currently the subject of a federal Occupational Safety and Health Administration complaint for its COVID management.

At this point, does COVID matter anymore? The Wall Street Journal suggests we’re not out of the woods yet. The paper said last week that a more infectious type of the Omicron variant, known as BA.2, “has surged to account for more than a third of global Covid-19 cases sequenced recently, adding to the debate about whether countries are ready for full reopening.” Health authorities are examining whether BA.2 could extend the length of Covid-19 waves that have peaked recently.

“We’re looking not only at how quickly those peaks go up, but how they come down,” World Health Organization epidemiologist Maria Van Kerkhove said. “And as the decline in cases occurs…we also need to look at: Is there a slowing of that decline? Or will we start to see an increase again?”

BOP Press Release, Inmate Death at FMC Lexington (February 24, 2022)

BOP Press Release, Inmate Death at USP Tucson (February 24, 2022)

CTInsider, Records: Danbury federal prison named in two complaints alleging work place issues, infrastructure problems (February 22, 2022)

Wall Street Journal, Fast-Spreading Covid-19 Omicron Type Revives Questions About Opening Up (February 23, 2022

– Thomas L. Root

Once Upon A Week Down In Washington – Update for February 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.

THE POLS WERE BUSY LAST WEEK (OR NOT)

jackson220228Rocket Woman: Only 15 years ago, Ketanji Brown Jackson was an assistant public defender in Washington, DC. Six years later, she was a federal judge. Ten months ago, she was confirmed as a judge on the US Court of Appeals for the D.C. Circuit. Last week, her dizzying ride through the judiciary continued as President Joe Biden nominated her to take retiring Justice Stephen Breyer’s spot on the Supreme Court.

Picking Judge Jackson fulfills Biden’s promise to appoint a black woman to the high court. But she’s no token: Harvard Law (editor of the Harvard Law Review), a law clerk for Justice Breyer (whom she will replace), an attorney (and later vice-chair) at the U.S. Sentencing Commission, a public defender with one uncle who was a big-city police chief and another who was doing life on a federal drug charge (until he got clemency from Obama). Jackson would be the only Supreme Court justice with extensive Guidelines experience and the only one who ever did federal criminal defense work

There will be the usual bickering in the Senate leading up to her confirmation, but she’ll get confirmed: Sen. Charles Grassley (R-Iowa), the ranking minority member of the Senate Judiciary Committee expressed enthusiasm about Judge Jackson’s support for the First Step Act during last spring’s hearing on her appointment to the Court of Appeals (although he didn’t vote to confirm). But three other Republicans did.  All it takes is 51 votes in the Senate: the Democrats will provide 50, and Kamala Harris will break the tie if a Republican does not defect. At least one will.

The appointment is good news for federal inmates. Judge Jackson is reliably liberal, and she knows federal criminal law. As a Sentencing Commission member in 2011, she was passionate about equalizing the sentences for crack and powder. The Wall Street Journal said yesterday, “Supreme Court nominee Ketanji Brown Jackson would, if confirmed, be the first justice in decades to have worked as a lawyer representing poor criminal defendants, a background that could add a new perspective to the high court’s deliberations.”

That makes her the equal (if not superior) to any of the other eight Justices.

More Demands for BOP Accountability: As I noted last week, the drums on Capitol Hill continue to sound for the BOP. Senate Judiciary Committee chairman Sen Richards Durbin (D-Ill), Sen Grassley, and California Sens Dianne Feinstein and Alex Padilla (both D) sent a letter to Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco demanding the Justice Department turn over a pile of information about employee misconduct and procedures in place to stem sexual abuse.

Associated Press reported that the letter “is the latest illustration of increasing scrutiny of the scandal-plagued bureau following the AP’s reporting. Last week, the Senate launched a bipartisan working group to focus on the federal prison system, and lawmakers have been introducing legislation to increase oversight of the nation’s 122 federal prisons.”

In a case of bad timing, the letter was sent to the AG the same day James T. Highhouse, the former chaplain at FCI Dublin, pled guilty in San Francisco federal court to five felonies relating to his work at the FCI-Dublin female prison in the Northern District of California. Highhouse admitted he sexually abused a Dublin inmate multiple times and then lied to the FBI about it.

BOPsexharassment191209In a separate report, the AP said “whistleblower” employees of the BOP say high-ranking prison officials are bullying them for exposing wrongdoing and threatening to close FCI Dublin if workers keep reporting abuse, even as members of Congress say they’re being stonewalled in efforts to pry information from what AP calls “the beleaguered bureau.”

AP reported, “The Bureau of Prisons’ proclivity for silence and secrecy has endured, workers and lawmakers say, even after an Associated Press investigation revealed years of sexual misconduct at the women’s prison — the federal correctional institution in Dublin, California — and detailed a toxic culture that enabled it to continue for years.”

EQUAL Act: Thursday, leading New York civil rights and criminal justice organizations sent a letter to Senate Majority Leader Chuck Schumer (D-NY) pushing him to bring the EQUAL Act (S.79) to a vote within the next month.

crackpowder160606The EQUAL Act will “finally and fully eliminate the racially unjust federal sentencing disparity between crack and powder cocaine offenses, one of the worst vestiges of the failed War on Drugs,” Black Starr reported. In September, EQUAL passed in the House by a 361-66 vote, supported by everyone from the Freedom Caucus on the right to the Progressive Caucus on the left. In the Senate, where the legislation was introduced by Senator Cory Booker (D-NJ), EQUAL currently has seven Republican and five Democrat cosponsors.

Up in Smoke: The Wall Street Journal reported last Tuesday that because of the “tough midterm election and divisions in Congress, the Biden administration is sidestepping the politically sensitive issue of loosening marijuana laws, even as the idea has gained broad public support.

“More than half of U.S. states have legalized cannabis use for some purposes,” the Journal said. “Lawmakers have proposed decriminalizing marijuana… Those promoting changes include a diverse range of political figures… If someone like myself and a progressive like Alexandria Ocasio-Cortez can find some common ground, it begs the question, why hasn’t the president acted?” Rep Dave Joyce (R-Ohio), told the Journal. Joyce, who has worked on decriminalization of pot, said, “The solutions are there. It’s just a matter of political will.”

marijuanahell190918The problem isn’t political will, it’s political ‘won’t’.” Major legislation to decriminalize cannabis is stuck “amid opposition from some Republicans and some moderate Democrats. President Biden hasn’t acted on his own campaign-trail promises to decriminalize marijuana and expunge criminal records of users. The White House said cannabis policy is under study, but declined to comment further.”

The MORE Act of 2021 (H.R. 3617) passed the House in September, but seems dead in the Senate.

More than two in three Americans support legalizing marijuana, according to a 2021 Gallup poll, up from one-half a decade ago. Still, as The Skimm reported last week, “while Americans largely want to legalize weed, it’s not a top priority for them either. Forty-three percent of US adults also reportedly have access to rec weed. So, the urgency to get the federal gov involved may not be very high.” What’s worse, The Skimm said, Biden has remained blunt about marijuana: “He doesn’t believe in legalizing it… Biden said he wants more research on marijuana’s effects before changing his stance. But he has previously supported decriminalizing weed (a hot take for someone who helped spearhead the country’s war on drugs).”

New York Times, Biden Picks Ketanji Brown Jackson for Supreme Court (February 25, 2022)

SCOTUSBlog.com, In historic first, Biden nominates Ketanji Brown Jackson to Supreme Court (February 25, 2022)

Wall Street Journal, Judge Ketanji Brown Jackson Would Bring Rare Criminal-Defense Experience to Supreme Court (February 27, 2022)

Associated Press, Senators push Garland to reform prisons after AP reporting (February 23, 2022)

The Hill, Former federal prisons chaplain pleads guilty to sexually abusing inmate (February 2, 2022)

Associated Press, Whistleblowers say they’re bullied for exposing prison abuse (February 23, 2022)

Black Starr News, Schumer Pressed To Pass Bill Addressing Crack\Cocaine Sentencing Disparity (February 25, 2022)

S.79, EQUAL Act

Wall Street Journal, Push to Relax Marijuana Laws Hits Roadblocks (February 22, 2022)

MORE Act of 2021, H.R. 3617

The Skimm, Breaking Down the Buzz: Why the US Isn’t Puff, Puff, Passing Marijuana Legalization (February 23, 2022)

– Thomas L. Root

Senators Decide BOP Needs Adult Supervision – Update for February 25, 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.

MIKE CARVAJAL’S LEGACY

adult220225The Associated Press reported last Friday that a bipartisan group of senators led by Jon Ossoff (D-GA) and Mike Braun (R-IN) has launched a working group “aimed at developing policies and proposals to strengthen oversight of the beleaguered federal prison system and improve communication between the Bureau of Prisons and Congress.”

Senator Ossoff said in a press release that the Senators will “examine conditions of incarceration in U.S. Federal prisons, protect human rights, and promote transparency.”

The AP says the task force – which calls itself the Senate Bipartisan Prison Policy Working Group – formed “following reporting by The Associated Press that uncovered widespread corruption and abuse in federal prisons.”

The chairman of the Senate Judiciary Committee, Senator Richard Durbin (D-IL) will be part of the group.

prisoncorruption2310825AP has called the federal prison system “a hotbed of corruption and misconduct… [that] has been plagued by myriad crises in recent years, including widespread criminal activity among employees, systemic sexual abuse at a federal women’s prison in California, critically low staffing levels that have hampered responses to emergencies, the rapid spread of COVID-19, a failed response to the pandemic and dozens of escapes.”

“The COVID-19 pandemic exposed serious weaknesses in our federal prison system, but also provided a blueprint for reform. Congress should take an active role in ensuring that BOP builds on the lessons of the pandemic to ensure the safety of incarcerated persons and the community, promote rehabilitation and reentry, and maximize alternatives to incarceration,” Kyle O’Dowd, Associate Executive Director for National Association of Criminal Defense Lawyers said. “The Prison Policy Working Group can open a bipartisan dialogue on these issues and lead the way in creating a more humane and rational prison system.”

accountable220225David Safavian, General Counsel, American Conservative Union, said, “It is high time that Congress addresses issues facing both federal prisoners and correctional officers alike. The newly created Senate Prison Policy Working Group must help develop policies that strengthen public safety, advance human dignity, and ensure that the prison bureaucracy is held accountable for the results it delivers to the taxpayers.”

Ossoff and Braun recently introduced legislation recently that will require the director of the BOP to be confirmed by the Senate, legislation co-sponsored by a bipartisan group of senators including Senate Minority Leader Mitch McConnell (R-KY).

Associated Press, Senate launches group to examine embattled US prison system (February 17, 2022)

Senator Jon Ossoff, Sens. Ossoff, Braun Launch Bipartisan Working Group to Examine U.S. Prison Conditions, Promote Transparency (February 17, 2022)

The Hill, Senate group to examine federal prison system after corruption, abuse allegations (February 18, 2022)

– Thomas L. Root