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COVID’s Ugly… and Puzzling – Update for October 5, 2021

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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 IN PRISON: WHO TO BELIEVE?

This is not my usual complaint about the BOP’s voodoo accounting for inmate COVID patients (although if cooking the books is a sin, a lot of BOP bean counters had better be pretty busy on Sunday morning). This is a more general head-scratch about how everything we knew about COVID seems, day by day, to be proven wrong.

Vaccinesticker211005How about the one that the vaccine (or a prior bout of COVID) will provide enduring protection? The government loves to trot out the argument that compassionate release due to the dangers of COVID is passe, because the prisoner is either (1) fully vaxxed; or (2) recovered from a prior bout of COVID, and thus naturally immune. It now appears that this chestnut is running headlong into the real world.

Diamonds Are Forever… But Not Vaccines: There is mounting evidence that vaccines are shorter-lived than the government says they are, and having COVID once does not immunize you from getting it again. Reuters reported last Friday that six months after receiving the second dose of the two-shot vaccine from Pfizer, many recipients no longer have vaccine-induced antibodies that can immediately neutralize worrisome variants of the coronavirus. In other words, that Pfizer poke you got in April likely isn’t doing anything for you now.

COVID Ain’t One-and-Done:  As for immunity due to having had COVID once, a review of all of the BOP’s press releases in inmate deaths – available at BOP.gov – since March 1, 2021, 19 of 28 reported deaths (68%) were of inmates who had previously recovered from COVID.

plague200406Let that sink in. More than half of the federal prisoners who died of COVID in the last seven months had already had COVID-19 once, and the prior bout from which they had recovered was not nearly as serious as the second one.

Now back to vaccines: the Centers for Disease Control and Prevention descended on FCI Texarkana last August when an early breakout of COVID-19 Delta erupted. The CDC study found that while 93% of the Texarkana inmates (39 of 42) infected with COVID-19 Delta were unvaccinated, 70% (129 of 185) infected had received both doses of vaccine. Infections were found in 89% of those vaccinated more than four months previously and 61% in those vaccinated in the last two months.

The data are showing CDC scientists (and the rest of us) that immunity from a prior COVID infection or vaccine is far from substantial protection.

BOP Numbers:  The BOP’s COVID numbers fell from 631 inmates and 547 staff on Sept 24 to 480 and 497 last Friday. But COVID is still present in 112 of 122 facilities. Four more inmates died last week. Inmate vaccinations jumped four points to 65.6%. Staff vaccinations still lag, up less than a half point to 54.8%.

antivax211005Staff Shots: A Presidential Executive Order to enforce vaccinations of BOP staff (not inmates) will begin this coming Friday. If staff are not fully vaccinated by Nov 22, they will face employment termination. BOP staff from USP Lewisburg, USP Allenwood, USP Canaan, FCI Schuylkill, and LSCI Loretto picketed last week against the mandate. Forbes reported last week that an Inspector General’s survey of BOP employees show substantial staff hesitancy or resistance to getting the vaccine, and “almost a third of those respondents reported that they have considered leaving the agency.”

COVID Infection is Arbitrary, and So is Compassionate Release: The gross disparities in grant of compassionate release are getting more notice. A CNN report last week noted that “17.5% of compassionate release motions were granted in 2020 and the first six months of 2021, newly released sentencing commission statistics show. But that rate ranged from a low of 1.7% in the Southern District of Georgia, where all but four of 230 motions were denied, to a high of 77.3% in the District of Puerto Rico, where 17 of 22 motions were granted. Judge Charles Breyer, the only current member of the sentencing commission, said in an interview that he thought the lack of updated compassionate release guidelines was exacerbating the wide disparities between districts.” Breyer argued that “You need a national standard,” adding that without one, “it creates a vacuum and it creates uncertainty, and most importantly it creates disparity.”

Just over 40% of motions decided in March 2020 were approved, CNN reported, but that fell to less than 17% in December and about 11% in June 2021. The decline this year came as the number of new coronavirus cases behind bars receded and vaccines became widely available in the prison system.

limp211005At Last, A Reason for Guys to Get Vaxxed: Still wondering about taking the vaccine? A report last week spotlighted mounting evidence that COVID-19 may sabotage men’s sexual health. Men may be six times more likely to develop brief or long-term erectile dysfunction after contracting the virus, according to research published in March. So guys, your reasons for rejecting vaccination are starting to seem… kind of limp.

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)

Am Council on Science & Health, Prison Breakout … of the Delta Variant (September 26, 2021)

NCPA.com, Bureau of Prisons’ staff face vaccinate mandate; union picket ensues (September 29, 2021)

Reuters, Science News Roundup: Delta increases COVID-19 risks for pregnant women; Pfizer/BioNTech vaccine antibodies gone by 7 months for many (October 1, 2021)

CNN, Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic (September 30, 2021)

Natl Geographic, COVID-19 may impair men’s sexual performance (September 22, 2021)

– Thomas L. Root

BOP, COVID, Vaccine and Rumors – Update for September 21, 2021

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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 GRIP

coviddelta210730Despite the BOP’s best efforts to quickly declare COVID-suffering inmates to be “recovered” – which the agency insists is done in conformance with Centers for Disease Control and Prevention guidelines – the numbers continue to creep upward. As of yesterday, the BOP reported 627 inmates (up 13%) with COVID. The agency reported four more inmate deaths than a week ago. Staff numbers were holding at 562, down one from a week ago.

The BOP phenomenon of inmates dying of COVID weeks or months after “recovery” was noted last week by the Beaumont Enterprise. That is hardly surprising. Even if the BOP is carefully determining that “recovered” inmates have no symptoms 10 days after a positive COVID test – and a number of inmate reports suggest that the agency’s approach to “recovered” is fairly slapdash – that does not mean the inmate is “recovered.” Guidance released last week by the CDC states that this means simply that “isolation and precautions can be discontinued 10 days after symptom onset and after resolution of fever for at least 24 hours, without the use of fever-reducing medications, and with improvement of other symptoms.”

As many prisoners have found out, COVID may be a long-haul thing. A CDC study released last week reported that one in three people who survived COVID-19 may suffer from long COVID. The study found that 35% of survey responders reported at least one ongoing symptom of COVID-19 two months after the initial positive test. Fatigue was reported by 17% of those long COVID patients; difficulty breathing and loss of taste or smell were reported by 13%; and muscle or joint pain was reported by 11%.

COVIDvaccine201221As of last Friday, 61.6% of BOP inmates had been vaccinated. Staff vaccinations still lag at 54.0%, up only 4/10th of a point since last week. That may be changing, however. The Safer Federal Workforce Task Force last week set November 22 as the deadline for federal employees to get fully vaccinated under President Biden’s new mandate. By and large, the staff will either get vaxxed or quit (bad news for an already-understaffed BOP).

However, 24 Republican state attorneys general warned the Biden administration last week that their states would sue to block the federal employee mandate if the plan is not abandoned.

Forbes last week noted that the pandemic had not particularly influenced federal criminal sentences. It noted that in Fiscal Year 2020, federal judges cited the Covid-19 pandemic as a basis for lower sentences in just over just 2.5% of all cases at most. Forbes cited SDNY Judge J. Paul Oetken’s observation that time served during the pandemic is “essentially the equivalent of either time and a half or two times what would ordinarily be served,” and SDNY Judge Paul A. Engelmayer’s statement that “prison is supposed to be punishment, but it is not supposed to be trauma.”

unicorn210921That being the case, there is no truth to the rumor, reported regularly by inmate emails, that anyone – Biden, Congress, or even the shuttered Sentencing Commission – is considering an across-the-board sentence reduction for federal inmates because of the pandemic. You can expect that if that happens, President Biden will personally ride up to BOP headquarters on a pink unicorn to deliver the happy news.

Beaumont Enterprise, Second senior, COVID recovered federal inmate dies in Beaumont (September 15, 2021)

Los Angeles Times, 1 in 3 COVID-19 patients suffer from long COVID, a CDC study of Long Beach residents finds (September 16, 2021)

CDC, Ending Isolation and Precautions for People with COVID-19: Interim Guidance (September 14, 2021)

CDC, Post-Acute Sequelae of SARS-CoV-2 Infection Among Adults Aged ≥18 Years — Long Beach, California, April 1–December 10, 2020 (September 17, 2021)

Government Executive, Coronavirus Roundup: A November 22 Deadline for Feds to Get Vaccinated; Booster Shot Clashes (September 14, 2021)

Columbus Dispatch, Ohio and 23 other state attorneys general tell Biden to drop vaccine mandate or be sued (September 17, 2021)

Forbes, The U.S. Sentencing Commission’s Inadequate Response To Covid-19 (September 17, 2021)

– Thomas L. Root

Biden Plans to Commute Some Drug Defendants, Vax BOP Staff – Update for September 14, 2021

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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.

SO WHAT HAPPENS NOW?

The morning after President Biden announced an executive order that all federal employees would get the COVID vaccine, the Bureau of Prisons numbers were stubbornly high. The number of sick inmates was up 5% from a week ago, standing at 553 (the highest count since March 15). More ominously, the number of sick staff jumped 12% to 563, nearly equal to the number of sick inmates, and the highest since April 20. COVID is present at 112 of 122 institutions, and the death toll notched up to at least 267 inmates.

deadcovid210914What remains puzzling is the BOP’s testing. The agency said it tested 127 people last week, a very low number of tests for the number of inmate cases the BOP is reporting.

Meanwhile, the number of vaccinated inmates hit the 60% mark, while the staff percentage barely moved, from 53.39% to 53.62%.

The staff number should change. On Thursday, Biden signed an Executive Order that, among other things, “require[s] COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.” The exceptions are for medical and religious reasons only, and (I already received one email asking this) the Order does not exempt BOP employees. Biden ordered each Federal agency to implement a program to require COVID-19 vaccination for all Federal employees and directed the Safer Federal Workforce Task Force to issue guidance within 7 days of the date of this order on agency implementation of this requirement for all agencies covered by this order.

The BOP announced two more COVID-19 deaths, one on September 4th at FCI Bennettsville and another from last November at FCI Talladega. The Talladega death was of a 29-year old who had contracted COVID on August 5, 2020, but who was declared “recovered” 12 days later.

At the 43-minute mark of last Friday morning’s White House press briefing, Press Secretary Jen Psaki had an exchange with an unidentified reporter:

Q: Jen, I’m hearing that the Bureau of Prisons issued a memo today telling approximately about 1,000 drug offenders how to apply for clemency. Have you — do you have anything on that?

MS. PSAKI: I would certainly point you to the Department of Justice. I would say that the President has been clear about his openness to using clemency powers, but I don’t — I wouldn’t say that’s an assessment of decisions made — and certainly targeting those toward nonviolent drug offenders. But I’d point you to the Department of Justice for any further details.

The riddle was solved yesterday when POLITICO reported that the Biden administration has begun asking people on CARES Act home confinement inmates to “formally submit commutation applications, criminal justice reform advocates and one inmate herself tell POLITICO.”

clemencyjack161229“Those who have been asked for the applications fall into a specific category,’ POLITICO reported, “drug offenders released to home under the pandemic relief bill known as the CARES Act with four years or less on their sentences. Neither the White House nor the Department of Justice clarified how many individuals have been asked for commutation applications or whether it would be expanding the universe of those it reached out to beyond that subset. But it did confirm that the president was beginning to take action.”

Business Insider published a piece on Saturday noting that “the Biden administration is considering granting commutations to those under home confinement who have federal drug charges and have less than four years left in their sentences. If enacted, that decision would only affect about 2,000 out of the 4,000 people currently under home confinement. To those that don’t fit the criteria, the administration will force them back to federal prison. For these individuals, the decision could be devastating to the progress they’ve made since emerging from behind bars. Sending [inmates] back to prison and hampering [their] progress would have the opposite effect of what our justice system purports to achieve.”

White House, Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees (September 9, 2021)

BOP, Inmate Death at FCI Talladega (September 10, 2021)

White House, Press Briefing by Press Secretary Jen Psaki (September 10, 2021)

Politico, Biden starts clemency process for inmates released due to Covid conditions (September 13, 2021)

Business Insider, Thousands of people who were released from prison due to the pandemic are now thriving with their families. But if Biden doesn’t act now, they will be cruelly sent back. (September 11, 2021)

– Thomas L. Root

President Said to be Considering CARES Act Partial Clemency – Update for September 7, 2021

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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.

BIDEN MAY (FINALLY) BE TAKING BABY STEPS ON CLEMENCY

The New York Times reported last week that President Biden is considering using his clemency powers – which he has not exercised in his first seven months in office – to commute the sentences of nonviolent drug offenders with fewer than four years left to serve. The contemplated intervention would not apply to those now in home confinement with longer sentences left, or those who committed other types of crimes, Biden administration sources told the Times.

The notion of clemency for some inmates is just one of several ideas being examined in the executive branch and Congress, the Times said. Others include a broader use of 18 USC § 3582(c)(1)(A)(i) “compassionate release” or 34 USC § 60541, the elderly offender home detention program, or even a law – such as the Safer Detention Act (S.312) – to allow some inmates to stay in home confinement after the pandemic.

The CARES Act permits inmates who are sent to home confinement under Section 12003(b) to remain at home until the pandemic public health emergency ends. The Times says, “That will not be soon: With the Delta variant spurring a surge in cases, the public health emergency is not expected to end before next year at the earliest.”

clemencyjack161229On August 10, Biden Press Secretary Jen Psaki said Biden was “exploring multiple avenues to provide relief to nonviolent drug offenders, including through the use of his clemency power.” The Times reported officials have confirmed that the Justice Department “will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office.” The officials said a focus on nonviolent drug offenders “dovetail[s] with Mr. Biden’s area of comfort on matters of criminal justice reform.”

Whether Biden is leaning toward commuting the sentences of drug offenders to home confinement, reducing sentence length to bring them down to the normal window 10%-or-six-month window for 18 USC 3624(c)(2) end-of-sentence home confinement, or some mix of the two, is not yet clear.

The Times reported that DOJ is still studying options that could keep non-drug offenders from being forced back into prison.

Meanwhile, criminal justice reform groups are keeping up pressure on the President. FAMM and the American Civil Liberties Union are mounting a six-figure ad campaign to pressure Biden to keep the CARES Act prisoners at home. The TV ads feature Juan Rodriguez, a federal prisoner sent home in July after doing eight of 14 years for a drug conviction. “I’m going to try to make the best out of every day I have out here,” Mr. Rodriguez says in the ad featuring him with his family and working a new job. “President Biden, please don’t separate me from my family.”

angel210907The ACLU has argued that fewer than 1% of prisoners put on home confinement had violated the terms of their release, and it was time for Biden to follow through on lowering the incarceration rate and size of the federal prison population that he campaigned on as a presidential candidate. So far, only five people sent home during the pandemic have been returned to prison for new criminal conduct.

USA Today has reported that over two dozen small business owners who have CARES Act home confinees are also asking Biden to grant clemency to prisoners. Some say losing employees to prison during a national labor shortage would not only be detrimental to their businesses, but would also keep their companies from growing.

Ohio State law professor Doug Berman complained in his Sentencing Law and Policy blog that when Biden was campaigning, he promised to “’take bold action to reduce our prison population’. But the federal prison population… has grown by over 4000 persons according to BOP numbers, from 151,646 total inmates on January 21, 2021, to 155,730 total inmates on August 26, 2021. To date, I cannot really think of any actions (let alone bold ones) that Prez Biden has taken to reduce the federal prison population. Talk of some clemency action is heartening, but just a start. And whatever clemency efforts are made, they should extend beyond just a limited group who are already home.”

The New York Times, White House Weighs Clemency to Keep Some Drug Offenders Confined at Home (August 30, 2021)

Washington Times, ACLU pressures Biden to keep convicts on home confinement out of prison due to pandemic (August 27, 2021)

USA Today, Businesses that hired inmates who were allowed to serve time at home during COVID push for clemency (August 26, 2021)

CBS News, Inmates on home confinement could be sent back to prison after the pandemic: “Why make us go back and do it again?” (September 3, 2021)

Sentencing Law and Policy, Prez Biden reportedly considering, for home confinement cohort, clemency only for “nonviolent drug offenders with less than four years” left on sentence (August 30, 2021)

– Thomas L. Root

EVEN THE SUSPECT COVID NUMBERS ARE HIGH – UPDATE FOR SEPTEMBER 2, 2021

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

YOU CAN’T FIND WHAT YOU DON’T LOOK FOR

The BOP’s official COVID numbers as of last night stood at 512 sick inmates (up 7% from a week before) and 490 staff (up 24%). COVID is present at 110 out of 122 facilities.

cantfind210902The BOP’s official count is not without controversy. Joe Gulley, union president at USP Leavenworth, told Business Insider the number of staff who had had COVID was at least 20 times higher than officially reported. “The Warden lied because he wanted his bosses and the public to think he was doing a good job,” Gulley said in a statement. “His only concern was that everyone outside of USP Leavenworth believed he was controlling Covid and keeping everyone safe so he could get his next promotion.”

The BOP said it tested an average of 33 inmates a day for COVID over the last 10 days. That’s only 64% of the number of COVID-positive inmates the BOP reports. In fact, it is only 10% of the testing the BOP was doing in a similar period last December. You have to wonder how the BOP found 512 COVID-infected inmates when only ran 328 tests during the 10-day period it typically carries an inmate as being sick. (The BOP habitually declares everyone as “recovered” after 10 days – including a number of them who subsequently die of the COVID from which they’ve “recovered,” but that’s a story for another day).

One cannot find what one does not look for.

As of last Friday, 58.2% of inmates were vaccinated, up 1.4 points from last week. Staff still lags at 53.1%, up only 0.2 points from the week before. The Food and Drug Administration gave regular approval to the Pfizer vaccine last week, and the military has already ordered its personnel to be vaccinated. BOP staff may soon lack the right to refuse the vaccine.

coviddelta210730Government Executive reported that “a chapter of the American Federation of Government Employees representing BOP staff at FDC Miami picketed last week to protest “unsafe working conditions stemming from an outbreak of COVID-19 infections among inmates, a rise in inmate assaults on employees, and chronic understaffing of the administrative security facility.” A union press release alleged, “These conditions endanger the lives of inmates, prison employees and the general community.”

Government Executive, Coronavirus Roundup: FDA Grants First Full Approval for COVID-19 Vaccine; Pentagon Announces Vaccine Mandate (August 23, 2021)

Business Insider, Unrest at the big house: federal prison workers are fed up, burned out, and heading for the exits (August 25, 2021)

– Thomas L. Root

Government Proves How Serious It Is About Prison Rape – Update for August 31, 2021

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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 COST OF PRISON RAPE

We got a glimpse last week at how serious the Dept of Justice is about enforcing the Prison Rape Elimination Act. The answer, as though anyone is surprised, is “not much.”

PREA requires that federal, state, and local correctional facilities maintain and enforce a zero-tolerance policy toward sexual assault for both inmate-on-inmate and staff-on-inmate misconduct. Unsurprisingly, while the DOJ talks a good game, it seems much more interested in inmate-on-inmate than it is in staff-in-inmate sexual abuse.  Four cases in point:

(1) Phillip Golightly, a former BOP correctional officer at FCI Marianna and FCI Tallahassee, was sentenced to 24 months last week for “sexually assaulting female inmates who were then under his custodial, supervisory and disciplinary authority” (as the DOJ drily put it).

What did he really do? The lurid statement of facts in the case states that Golightly did not go lightly on female inmates. Instead,  he forced female inmates to perform oral sex on him, and to endure him forcing it on them, on multiple occasions. Read the statement (just not immediately before dinner).

rape190412For this – in a sentencing regime in which a poor black drug peddler gets a mandatory 10 years for possessing with intent to sell crack that weighs no more than a Big Mac (including bun) – the former corrections officer will serve 20 months and a couple weeks (after factoring in good-conduct time). Golightly isn’t just his name… it’s how the Court sentenced him.

That’s the cost of rape if you’re a BOP perp (that is, if you are prosecuted at all, as noted below).

(2)  Carleane Berman, a former FCI Coleman inmate who was one of 15 women to share a $2 million settlement with the BOP over their abuse at the hands of a group of FCI Coleman camp COs, died of a drug overdose last month.

carleane210831The Miami Herald reported last week that “Carleane returned from the Federal Correctional Complex Coleman in Sumter County a shattered woman.” Her father, Ron Berman, who had fought to keep her drug-free since her release, said he “could do little to help her quell her nerves, ease her insomnia, or stop recoiling at the sound of voices in hallways. The voices, Carleane said, reminded her of being behind bars with the prison officers who raped her.

Miranda Flowers, another victim, told the Herald she and Berman were raped together at least 11 times in various parts of the facility. “We’d walk back to the units and grab our stuff and go straight to the showers and not talk about it,” she recalled.

“The people that were supposed to be in charge were not doing what they were supposed to do,” former inmate Andrea DiMuro said. “Coleman was hell on earth.”

“I blame everything on Coleman. I want them held accountable,” Ron Berman said. “She was never the same after Coleman.”

(3)  Miranda Flowers said a prison investigator told her the officers had been allowed to resign in exchange for their admissions and no charges.  As it stands today, none of the rapes occurring prior to August 31, 2016, is prosecutable, falling as they do beyond the statute of limitations.

Joe Rojas, the southeast regional vice president for the workers union, AFGE Council of Prisons, said the Coleman case was a black eye for the BOP. “I’m just sad because honestly those officers got away with a crime,” Rojas told the Tampa Bay Times last May.

PREA210831(4) Want to read about the PREA violations at Coleman? Don’t bother going to the FCI Coleman Low PREA Audit results (last updated April 2018).  The report, but for the boilerplate, is significantly redacted, but it maintained that “There were no substantiated sexual abuse or harassment allegations at FCC Coleman over the period…” studied by the audit. According to the Report,  “[f]acility staff conducted 36 investigations into sexual abuse/harassment allegations. There were 34 unsubstantiated cases, and two cases were deemed unfounded.”

Yet the wholesale abuse of inmates dated from 2012, “in some cases, spanning five to six years,” the Times said, with specific allegations dating from as late as December 31, 2017.

With such detailed and unstinting investigation, it’s little wonder that so little staff-to-inmate rape is detected, and that so little is done about it.

DOJ Press Release, Former Bureau of Prisons Correctional Officer Sentenced to 24 Months In Federal Prison For Sexually Abusing Inmates (August 27, 2021)

Statement of Facts, R.23, United States v. Golightly, Case No 4:20cr32 (N.D. Florida, October 16, 2020)

Miami Herald, She was raped by Florida prison officers. After her drug death, supporters want justice (August 24, 2021)

– Thomas L. Root

Notorious MCC Closing ‘Temporarily’… And Other BOP Follies of the Week – Update for August 30, 2021

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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 HAS ANOTHER TOUGH NEWS WEEK

I Love New York:  The Dept. of Justice announced last Thursday that the Bureau of Prisons will “temporarily” close the Metropolitan Correctional Center in New York, the high-rise jail near the Federal Courthouse in lower Manhattan.

The decrepit facility, described by the New York Daily News as “dysfunctional,” has been a headline-generating public relations disaster for the BOP in the past several years.

renovate210830The closure was described as being temporary, reminiscent of restaurant “closed for renovation” announcements to mask abandonment of the premises. Indeed, the Daily News said, “Sources were skeptical the jail would ever resume operations resembling previous years, when it held 700 or more inmates.”

The decision to close comes weeks after Deputy Attorney General Lisa O. Monaco inspected the facility “given ongoing concerns,” as the DOJ said at the time.

The New York Times reported that MCC has been criticized “by inmates, lawyers and even judges for the conditions in which prisoners have been held.” It’s the prison where two COs were indicted for lying after celebrity prisoner Jeffrey Epstein, who was facing sex-trafficking charges, was found dead in his cell in August 2019 in what was ruled a suicide. In early 2020, a handgun was found in the jail during a shakedown.

In January, the facility received its fourth warden in less than two years. As the coronavirus took hold, MCC employees weren’t able to get masks and staff restrooms ran out of soap because employees charged with refilling the dispensers were pressed into duty as COs due to staff shortages. In May 2020, a court-authorized inspection found that inmates with COVID symptoms were ignored and social distancing was almost nonexistent.

Earlier this year, the MCC “was rocked by allegations that an inmate whose lawyer says he has the mental capacity of an 8-year-old child was left in a holding cell for 24 hours while awaiting a competency evaluation,” Associated Press reported. “Around the same time, a correctional officer at the facility had also reported sexual misconduct by a superior, which officials at the jail delayed reporting to senior BOP officials.”

“The MCC has been a longstanding disgrace,” New York Federal Public Defender David Patton told the Times. “It’s cramped, dark and unsanitary. The building is falling apart. Chronic shortages of medical staff mean that people suffer for long periods of time when they have urgent medical issues.” But, Mr. Patton added, MDC Brooklyn (across the river from the MCC) has many of the same problems, and if the MCC prisoners are sent there without those problems being addressed, “this move will accomplish nothing.”

frying210830Most of the 263 inmates at the MCC will be moved to MDC Brooklyn, according to Courthouse News Service, which many may seem as “out of the frying pan and into the fire.” MDC Brooklyn, where a power outage and BOP management prevarications made the news in January 2020, is still embroiled in a lawsuit brought by the NY Federal Public Defender accusing the BOP of “false statements and stonewalling” by “refusing to provide detailed or accurate information about the conditions at MDC” during the power outage. The district court in which the suit is being heard has appointed former US Attorney General Loretta Lynch as mediator in the case.

You may recall that last April, US District Court Judge Colleen McMahon said that both MCC and MDC are “run by morons.” During a sentencing proceeding, McMahon castigated the BOP, saying the agency’s ineptitude and failure to “do anything meaningful” at the two facilities amounted to the “single thing in the five years that I was chief judge of this court that made me the craziest.”

Lynch said Friday her team has been conducting “stress tests” at MDC Brooklyn to better understand problems there, such as how to improve scheduling of in-person visits. She said the BOP and inmates should anticipate that moving additional prisoners to the Brooklyn facility will “create its own ‘stress test,’ separate and apart from the ones that we have been using,” she said.

horrendous210830Southern Comfort:  Meanwhile, Forbes published a piece last Monday describing the horrific conditions at what is left of FCI Estill after the prison was damaged by a tornado nearly 18 months ago. About 1,000 medium-security prisoners were relocated, but 66 minimum-security inmates remain, having been moved into the medium-security facility. “When the Campers arrived at the FCI, floors were covered in water, urine and feces,” Forbes reported. “Toilets were clogged, black mold and mildew could be seen throughout the facility. The vents were filthy and covered in black soot. Debris from the remaining infrastructure hung from the ceiling. Medications were suspended to inmates and anxiety ran high over COVID-19 outbreaks. The only hope for these remaining inmates was that these conditions would be short-lived and some normalcy to prison life would return. However, not much has changed in the 16 months since and these men still live in inhumane conditions.”

While the inmate count fell by 95%, “the staffing level of the facility has remained roughly the same as it was prior to the tornado (approximately 221).” That would seem to be 221 employees who could be used elsewhere…

Take This Job and Shove It:  Is it any wonder BOP employees are quitting in droves? That’s the question Business Insider asked last week. “About 3,700 staffers left the BOP from March 2020 to July 3, 2021, according to agency data… That translates to the equivalent of more than 8.4 employees departing every day during that period… Current departure numbers are even more striking because the overall number of BOP employees isn’t going up — it’s going down. In 2015, there were 37,258 employees, according to a Government Accountability Office analysis of the agency’s employment data. By 2017, that number dropped to 35,569. In 2019, it stood at 34,857.”

So much for the BOP’s much-ballyhooed hiring initiative…

job210830The COVID-19 pandemic and augmentation have increasingy strained prison workers, which could cause more prison workers to quit as staffing conditions continue to erode, union representatives told Business Insider. “I was mentally stressed out and physically drained at the end of the day,” a former custody officer at the US Penitentiary, Thomson, facility in the northwestern region of Illinois, said. “I used to dread going to work. There were way too many inmates for the amount of stuff that’s there.”

New York Daily News, NYC federal jail where Jeffrey Epstein killed himself to close (August 26, 2021)

New York Times, Justice Dept. to Close Troubled Jail Where Jeffrey Epstein Died (August 26, 2021)

The Hill, DOJ to ‘at least temporarily’ close jail where Jeffrey Epstein died (August 26, 2021)

Associated Press, U.S. Is Closing The Troubled NYC Jail Where Jeffrey Epstein Killed Himself (August 26, 2021)

Courthouse News Service, Manhattan jail closure renews concerns over Brooklyn facility conditions (August 27, 2021)

Forbes, Federal Inmates Live In Deplorable Conditions A Year After Tornado Destroyed Most of FCI Estill (August 23, 2021)

Business Insider, Unrest at the big house: federal prison workers are fed up, burned out, and heading for the exits (August 25, 2021)

– Thomas L. Root

The Delta on Delta – Update for August 27, 2021

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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.

RELENTLESS

COVID’s back… and we’ve got it.

Really, COVID never really left. But seven weeks ago, the BOP reported only 29 inmates and 132 staff with COVID, with the virus present in 70 facilities. As of yesterday, 532 inmates and 414 staff had tested positive for the virus at 106 institutions. Four more inmates had died, two last week.

delta210827In public health, of course, “delta” has lately referred to the novel coronavirus delta variant. In math, “delta” refers to the change in a variable (such as “∆x” meaning the change in the value of x). Why this high school math reminder? Because in the BOP, the ∆Covid∆ – that is the change in COVID-19 delta variant infection – is accelerating for both inmates and staff.

Last week, I heard from an inmate who said his institution was offering a special meal and a movie to inmates who agreed to get vaccinated. That was indirectly confirmed by Government Executive magazine, which reported last week that the BOP has “provided guidance about vaccine incentives for inmates to all of the agency’s chief executive officers in an effort to improve institution inmate vaccination rates.”

Currently, the BOP reports that 56.8% of inmates and 52.9% of staff are vaccinated. Despite the President’s announcement that unvaccinated federal employees generally will be treated like Typhoid Mary, the BOP staff rate has not budged a full percentage point in six weeks, while the inmate number has increased by over three. And as Salon reported last week, researchers found that BOP data show that “the infection rate among correctional officers [drives] the infection rate among incarcerated individuals.” The research shows “a three-way relationship between the infection rate of officers, incarcerated individuals and the communities around prisons.

Things are likely to get worse before they get better. Scientists are still unsure how many new infections are “breakthrough” cases in which vaccinated people are catching COVID anyway. Last week, the Administration announced that some people with a two-shot vaccination should get a booster. And while COVID-19 Delta is six times as virulent as old-fashioned COVID-19, yet another variant – COVID-19 Lambda – has just been identified.

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Of course, continuing COVID also means continuing opportunities for compassionate release, despite the fact that vaccinations may make proving susceptibility to COVID more difficult. One thing is sure, for all the people who have been asking: Judges may consider that having the vaccine makes one less likely to get COVID, but to a judge, they consider someone who turned down the vaccine to be unworthy of a compassionate release.

Government Executive, Coronavirus Roundup: Booster Shot News; GSA Rethinks the Future of Work (August 17, 2021)

Salon.com, Correctional officers are driving the pandemic in prisons (August 19, 2021)

Bloomberg, The Vaccinated Are Worried and Scientists Don’t Have Answers (August 22, 2021)

– Thomas L. Root

Watching You Watch Them – Update for August 19, 2021

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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.

QUIS CUSTODIET IPSOS CUSTODES?

emily210819I owe a debt of gratitude to my sainted Latin teacher, Emily Bernges, late of Sturgis, Michigan. One of the best teachers I ever had, Mrs. Bernges instilled a love of the great dead language in me… so much so that decades later, when I read that the Dept. of Justice Office of Inspector General caught some BOP corrections officers sneaking past the metal detector, I immediately thought of the Roman poet Juvenal’s lament.

Quis custodiet ipsos custodes? As Emily taught me to translate it, “Who shall guard the guards themselves?”

The Inspector General issued an urgent advisory a week ago, reporting that a “review of an unidentified BOP facility’s video monitoring system revealed that staff were able to enter the facility during the night shift and walk around the metal detector without being screened. After discussing the matter with BOP personnel at the facility, we are concerned that this presents systemic concerns.”

Fox News reported that the IG’s recommendation came in connection with an investigation of the presence of contraband at the unnamed federal prison. (I might add that since I mentioned this in last week’s newsletter, I have inmates at a dozen or better places email me to volunteer that the unnamed institution had to be their facility. How far matters have devolved!

The advisory, which had been delivered to the BOP a week before, recommended that BOP staff members not be allowed to enter an institution without being screened by other personnel, and the BOP should ensure that its facilities are properly staffed to ensure that all staff and their belongings are properly searched before staff enters BOP facilities.

Carvajal said the BOP was immediately adopting the recommendations.

Other bad news for the BOP last week: ABC News reported last week that while it’s customary for the BOP to carry out an after-action review of a major incident that occurred inside a federal prison within months of an incident, the report on how Jeffrey Epstein killed himself at MCC New York has yet to be released, two years after the suicide. Former Attorney General William Barr, just days after the death in 2019, said, “We will get to the bottom of it, and there will be accountability.”

whitewash210819Tyrone Covington, the MCC union local president, said he’s hoping it comes out so the public can see “what took place, and end some of the skepticism out there about the Bureau of Prisons, and what happened to Jeffery Epstein.”

Finally, USA Today and The Marshall Project reported last week that despite the First Step Act’s requirement that the federal prison system expand access to medications for prisoners addicted to opioids (and the millions appropriated to fund the program), as of July, the BOP had managed to put only 268 people on medications to treat opioid dependence. This is less than 2% of the more than 15,000 people the BOP itself estimates are eligible. Even while the DOJ investigates other prisons and jails for not providing these medications, the Bureau “lacks key planning elements to ensure this significant expansion is completed in a timely and effective manner,” the GAO said in a report last May.

DOJ Inspector General, Notification of Urgent Security Concerns Involving Staff Entering BOP Facilities (August 12, 2021)

Fox News, Department of Justice urges Bureau of Prisons to tighten security around searching staff (August 12, 2021)

ABC News, More questions than answers 2 years after Epstein’s suicide (August 11, 2021)

USA Today, Drugs that treat opioid addiction and overdoses not widely available in federal prisons (August 10, 2021)

GAO, Improved Planning Would Help BOP Evaluate and Manage Its Portfolio of Drug Education and Treatment Programs (May 2021)

– Thomas L. Root