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Senate Takes on BOP, and Other Short Rockets – Update for February 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.

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Some short takes to end the week:

Mike Carvajal’s Legacy: The Associated Press yesterday reported that a bipartisan group of senators, led by Jon Ossoff (D-Georgia) and Mike Braun (R-Indiana) 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.”

prisoncorruption2310825Giving itself a well-deserved victory lap, 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, Sen. Richard Durbin (D-Illinois) also will be part of the group. I’m hoping to see Senator Chuck Grassley (R-Iowa)

AP 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.”

Advocates from across the spectrum lauded the announcement. “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.”

David 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.”

More BOP accountability… Ironically, that may be BOP Director Mike Carvajal’s legacy.

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)

And This is Kind of What the Senators Are Talking About: A BOP employee pleaded guilty Thursday to charges he sexually abused at least two inmates at FCI Dublin, the first conviction in a wave of arrests resulting from what prisoners at the women’s facility and employees called “the rape club.”

sexualassault211014The latest, a recycling technician, is one of four employees, including the warden and chaplain, who’ve been arrested for sexually abusing Dublin inmates. The Associated Press said last week that several other Dublin workers are under investigation.

The employee pled guilty to three counts of sexual abuse of a ward. Sentencing guidelines in similar cases have ranged from three months to two years, the AP said. The employee, on administrative leave since last April, remains “currently employed with the Bureau of Prisons,” the agency said last Friday. He had been allowed to transfer to another BOP facility while under investigation.

The AP published results of its investigation of FCI Dublin a week ago, saying it had found “a permissive and toxic culture at the Bay Area lockup, enabling years of sexual misconduct by predatory employees and cover-ups that have largely kept the abuse out of the public eye.” Inmates told AP they had been subjected to years of “rampant sexual abuse by correctional officers and even the warden, and were often threatened or punished when they tried to speak up.”

Federal News Network, Worker pleads guilty to abusing inmates at US women’s prison (February 11, 2022)

Associated Press, AP investigation: Women’s prison fostered culture of abuse (February 6, 2022)

Violent Offender Recidivism: The US Sentencing Commission last week released a study suggesting that violent federal offenders committed new crimes at double the rate of nonviolent offenders.

welcomeback181003Over an 8-year period, 64% of violent offenders released in 2010 were rearrested, compared to 38% of non-violent offenders. The median time to rearrest was 16 months for violent offenders and 22 months for non-violent offenders. What’s more, while recidivism dropped with age, in all categories violent offender committed new crime at a higher rate than nonviolent. For ages 60+, violent offenders’ recidivism rate was 25%, compared to 12% for nonviolent.

Violent offenses were defined based on the sentencing guidelines applied. By the definitions used, 9% of federal prisoners are serving time for violent crimes and 34% have prior violent-crime convictions.

US Sentencing Commission, Recidivism of Violent Federal Offenders Released in 2010 (February 10, 2022)

– Thomas L. Root

Just When You Thought It Was Safe To Stay At Home… – Update for February 17, 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.

BUREAU OF PRISONS MUDDIES THE WATER ON CARES ACT PRISONERS REMAINING AT HOME

A BOP letter responding to a request from Rep. Sheila Jackson Lee (D-Texas) last week has renewed concern that CARES Act home confinees aren’t out of the woods yet.

muddywaters220217You may recall that the CARES Act, gave BOP the authority to send medically vulnerable prisoners to home confinement because of COVID. Since CARES passed in March 2020, the BOP has sent about 9,000 prisoners home, and of those – according to the BOP – only three have been returned to prison for committing new crimes.

However, despite the success of the program, the Department of Justice Office of Legal Counsel issued an opinion in the dying throes of the Trump Administration that when the pandemic ended, all of those folks – who had reconnected with families, gotten jobs, and generally reacclimated to society – would have to go back to prison. There was near-universal condemnation of the opinion, but last July, the newly-installed Biden people at DOJ offered as the Trumpian opinion was probably right.

flipflop170920Then, in December (with the President looking for some kind of criminal justice “win” to placate his progressives), CARES Act people rejoiced when the OLC reversed the January 2021 opinion. In fact, the jubilation was so great that none of the celebrants seemed to notice that the BOP had sent a memorandum to OLC a few days before saying that if return to prison was not mandatory, the agency planned to develop a plan to evaluate “which offenders should be returned to secure custody.

“Which offenders should be returned” is one of those compound statements, necessarily assuming that some of the CARES Act people should be returned. Some people are now taking note of just how ominous the statement is, and are asking what the BOP means by it.

“Sentence length is likely to be a significant factor,” the memo from BOP’s Office of General Counsel said, “as the more time that remains will provide the agency a more meaningful opportunity to provide programming and services to the offender in a secure facility. The nature of the sentence imposed, the interests of the prosecuting U.S. Attorneys’ Office, the potential impact on any victims or witnesses, and deterrence are other potential factors for the criteria BOP would develop. It is likely that inmates that have longer terms remaining would be returned to secure custody, while those with shorter terms left who are doing well in their current placement would be allowed to remain there, subject to the supervisory conditions described above.”

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Asked by two dozen other members of Congress to clarify, the BOP last week said it was preparing regulations that would be adopted “at the appropriate time.” Until then, the letter said, “we cannot speak to specifics.”

When he appeared before the House Subcommittee on Crime, Terrorism and Homeland Security two weeks ago, BOP Director Michael Carvajal said the BOP is “committed to returning people to society” and his agency “follows the laws that have been implemented and continue to do so.”

Right, Mike.

KXAN-TV, What will happen to inmates released under CARES Act? Prison officials vague (February 8, 2022)

BOP, Memo on CARES Act Return Authority (December 10, 2022)

BOP,  Letter to Rep. Bonnie Watson Coleman (February 7, 2022)

– Thomas L. Root

‘Statistics Don’t Lie’ on BOP’s CARES Act Failings – Update for February 15, 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.

FORBES DRILLS INTO BOP’S CARES ACT RESPONSE TO COVID

Hanlon’s razor may have started as a joke, but humor reveals truth that straight exposition often obscures.

incompetent220215Ironically, given the 7th Circuit’s Barbee holding (see yesterday’s post), Forbes magazine last week published the deepest dive into BOP COVID data yet, and asked whether the agency’s “reaction to COVID-19 and the implementation of the First Step Act… can be attributed to the government wanting to keep prisoners locked down and maintain jobs or a deeper, underlying problem.”

A CDC study at FCI Texarkana last summer, Forbes notes, “demonstrated the potential for COVID-19 outbreaks in congregate settings including correctional and detention facilities, even among resident populations with high vaccination rates. It turns out that even those who are vaccinated are prone to being reinfected if they are in tight living quarters with those who become infected and are not vaccinated. Prisons present an environment where people are exposed to higher doses of infection that can overwhelm their dose of vaccine protection.”

Relying on data from Mark Allenbaugh (a former Sentencing Commission attorney) at SentencingStats.com, Forbes found that while there was an uptick in home confinement to about 5,400 prisoners in early summer 2020, “since then, that number has remained relatively flat, meaning that the elderly or sick inmates, who could be transferred to home confinement, have stayed in prison. In fact, the overall prison population, which bottomed in early 2021, has increased by more than 20,000 in the past year.”

What’s more, Forbes said, “the BOP’s COVID infection rates among inmates are also far worse than what the BOP is reporting and their own figures reflect that.” Allenbaugh said, “The BOP simply is not testing prisoners to determine if or when they are recovered. Rather, they are just assuming recovery after approximately 10 to 14 days. The rate of drop in infection among prisoners cannot be otherwise explained, particularly if you compare the trends between prisoners and staff. The problem, therefore, is that infectious prisoners are being returned to the general population spreading the infection even more.”

COVIDTesting220215Want proof? The BOP itself admits to only testing 13,537 times since last July. That’s about one out of every ten inmates once in 7-1/2  months.

Others echo this criticism. While data on the medical isolation rate, facility vaccination rate, and community transmission rate are all available on the prison bureau’s website, advocates, including Corene Kendrick (deputy director of the ACLU National Prison Project)and Joshua Manson, a researcher with the UCLA Law COVID Behind Bars data project, say most of the information on how many people have been infected with, or died of, the virus is inaccurate. “They’re not being fully transparent,” Manson told Capital News Service last week. “They’re sort of just asking the public to trust them when they’ve really given the public no reason to trust them. There have been enormous numbers of people who’ve been infected in the Bureau of Prisons’ custody…but we know that the actual number is considerably higher than that.”

Forbes also reported the numbers of prisoners that remain to be fully vaccinated plus those who need booster shots are much higher than the BOP has claimed. “While the BOP touts that its vaccination rates are near 90%, that includes those who have received only one shot, which we all know is not effective enough.” Allenbaugh also cited misrepresentations in BOP vax data (as I have noted in a prior newsletter), that institutions claim more vaccinated inmates than their total population.

Manson agreed, complaining the BOP website has a category for “fully vaccinated” inmates, but that number doesn’t include the number of people who have not yet gotten a booster. “Now, I don’t really think that you can call someone fully inoculated right now if they haven’t received the booster,” he said.

Part of the idea behind the CARES Act was to reduce prison populations. But Forbes reported that BOP facilities were at an average of 94.3% capacity in July 2020, 18 months later, they’re at an average of 98.8% capacity, with 93 institutions over their rated capacity. This is due in part to Biden’s closure of private prisons, resulting in “thousands of prisoners… now being crowded into BOP-run facilities.”

statistics220215Forbes said, “A new BOP director has not yet been appointed, but one cannot be appointed soon enough to change the poor management and deception of those currently in charge. It will take a monumental effort to change an organization that is failing the prisoners it houses and the employees who are becoming increasingly frustrated. The statistics don’t lie.”

The need for a longer-term solution is becoming more obvious, inasmuch as COVID will “continue to be a problem for incarcerated people, even as the world tries to move on,” according to Wanda Bertram of the Prison Policy Initiative. Public officials who have declared COVID endemic are “basically admitting that prisons are going to be more dangerous in terms of health risks than they’ve been before,” Bertram said.

Forbes, Statistics Show Federal Bureau Of Prisons Unable To Implement Key Policies During Crisis (February 7, 2022)

CDC, Outbreak of SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a Federal Prison — Texas, July–August 2021 (September 24, 2021)

Front Royal, Virginia, Examiner, Lawmakers, families, advocates challenge handling of COVID in federal prisons (February 11, 2022)

North Carolina Health News, Breaking point: What is the future of COVID and incarceration? (February 10, 2022)

– Thomas L. Root

Some BOP Shorts – Update for February 11, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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MIRABILE DICTU

Miracle200513That is, “speaking of wonders…”

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

SCAVENGER HUNT FOR BP-9 UNNECESSARY

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

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

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

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

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

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

– Thomas L. Root

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

COVID KEEPS ON GIVING

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

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

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

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

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

inmateCOVIDrights220124

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

DOES PATTERN HAVE IT ALL WRONG?

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

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

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

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

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

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

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

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

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

PATTERN errors include

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

… And Venter Vents – Update for January 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.

HOUSE SUBCOMMITTEE WITNESSES SAVAGE BOP’S COVID RESPONSE

venters220125Witnesses blasted BOP healthcare, CARES Act and compassionate release response, and the PATTERN score at a House of Representatives Subcommittee on Crime, Terrorism and Homeland Security hearing on what Rep. Jerry Nadler (D-NY) called “BOP’s troubling response to the COVID-19 pandemic and its inability to protect inmates and staff adequately.”

Nadler, who is chairman of the full House Committee on the Judiciary, said the BOP has a “duty to ensure basic protections for those in our custody” and “to make sufficient use of the authority granted to it under the CARES Act to place certain prisoners at home confinement earlier than previously permitted by statute…”

Epidemiologist Homer Venters, who has inspected some 40 prisons since the pandemic began, testified that “my greatest area of concern is that pre-existing deficiencies in the health services provided to people in BOP custody which contributed to the spread and lethality of COVID-19 remain unaddressed… My investigations have real revealed a disturbing lack of access to care when a new medical problem is encountered.”

Additionally, he argued that “there’s a compelling and unrealized rationale for release of high-risk patients who pose minimal public safety risks. This approach is even more important now to consider during the omicron outbreaks because of the tremendous lack of staffing inside facilities.”

death200330Venters faulted the lack of any independent review and assessment of reported COVID-19 deaths “including those that occurred in private facilities,” a number the BOP has been careful to erase from its count since contracts with those facilities lapsed. He argued that “the lack of independent assessment in how [inmate COVID] deaths are reviewed and more broadly the lack of meaningful oversight by a health organization” is a fundamental problem.

“Every other sector of health care in the United States has independent and professional health organizations reviewing the quality of care,” Venters told the Subcommittee, “but in the BOP and other carceral spaces we leave those crucial assessments to law enforcement to review its own provision of health care… The BOP is left to make its own assessments about the quality and scope of his health care and only sporadic investigations by the Inspector General of the Dept of Justice provide alternative viewpoints. This is wholly insufficient and leaves incarcerated people at a systemic disadvantage because the organizations and structures that measure and promote health for the rest of the nation for the rest of us are excluded from the care people receive in the BOP.”

University of Iowa law professor Allison Guernsey echoed the problems with the BOP’s self-reporting of inmate COVID numbers. “There are serious questions about the veracity of the BOP’s infection and death data. Not only do these questions cast doubt on the handling of the pandemic but they have real-world impact on the adjudication of compassionate release motions.”

She noted that the BOP has delayed reporting some COVID deaths for as much as a year, and that even now, Freedom of Information Act data she obtained from the BOP show five inmate deaths that the BOP has never publicly acknowledged. What’s more, she said, BOP numbers “don’t include anyone who died in a privately managed facility with a federal contract [which she reported totaled 17] and… it excludes people who were granted compassionate release just in time to die free.” Furthermore, she testified, “the Bureau of Prisons has admitted that its cumulative infection rate doesn’t include anyone who caught COVID and was then released from prison.”

With Guernsey’s additional numbers, the BOP’s inmate COVID death total is at least 301 inmates.

funwithnumbers170511Guernsey observed that “the accuracy of the data matters” because “courts rely on it routinely in granting compassionate release, and if a judge misjudges the COVID risk based on inaccurate data, people that we know are medically vulnerable will be left in prison to die.” She asked the Subcommittee to take steps to “require the BOP to report accurate and verifiable data. We should require them to do this for deaths and for infections, and we should require the BOP to comply with the mandates already articulated in the First Step Act by requiring them to report to this Committee and Congress what they are doing with respect to compassionate release procedures.”

[Editor’s aside: If the BOP accountants who diddle daily with the agency’s COVID numbers were in private industry, they’d have done the perp walk by now.]

Subcommittee on Crime, Terrorism, and Homeland Security, Hearings: The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons? (Jan 21)

– Thomas L. Root