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BOP COVID Report – Update for August 10, 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 ABOUT THAT COVID VARIANT?

The Bureau of Prison’s own sometimes-controversial numbers suggest the agency is holding the COVID-19 Delta line for inmates, with 310 reported ill as of last night, up only 5.4% since a week before. The BOP has complete control over that number. But it has less control over the number of ill BOP employees – up 48% from a week before, from 157 to 233 – and the number of facilities with COVID-19 present. That number jumped from 80 to 96 joints, the highest level in four months.

Raisedead210208According to data published Sunday by the U.S. Centers for Disease Control and Prevention, 50.1% of the total U.S. population is now fully vaccinated – more than 166 million people. The US now is averaging more than 100,000 new COVID-19 cases every day, the highest in almost six months. The BOP reports 55.7% of inmates and 52.5% of staff have been vaccinated.

Two more inmate deaths were reported last week, one July 17th at Texarkana and a second, on July 28th at FMC Ft Worth. Roy Berry, who died at Ft Worth, had COVID in March but had been declared recovered by the BOP. At least 257 federal inmates have died of COVID. Due to squirrely reporting from private prisons (where reports of deceased prisoners magically disappeared from time to time), the number is certainly higher than that.

USP McCreary reported 56 sick inmates, Miami FDC 25, FCI Texarkana 25, FCI Phoenix 24, USP Yazoo City 14, FMC Butner 13; and FCI Terminal Island with 11.

NPR reported last Friday on the COVID-19 Safer Detention Act, noting that the bill – sponsored by Sens Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa) – would extend compassionate release to the ever-decreasing numbers of “old law” inmates (those sentenced before 1988) still in the system.

The bill, which has passed out of the Senate Judiciary Committee and is also pending in the House, would ease COVID-19 compassionate release procedures, make permanent CARES Act home confinement, and benefit Elderly Offender Home Detention  inmates.

home190109Meanwhile, Reason magazine argued last week that the CARES Act home confinees have proven that home detention is a viable imprisonment alternative. “The overwhelming majority of those released on home detention have not reoffended. Of the 28,881 prisoners allowed on home detention last year, only 151 individuals, less than 1%, violated the terms of their confinement. Only one person has committed a new crime… In short, home detention seems to be largely successful. Most prisoners under the program have stayed out of trouble and are working to become law-abiding citizens. In doing so, they are saving taxpayers the exorbitant price of incarceration—which, on average, costs over $37,500 per year versus $13,000 per year for home confinement and monitoring.”

BOP, COVID-19 resource page (August 9, 2021)

CDC, COVID Tracker (August 8, 2021)

BOP, Inmate Death at FCI Texarkana (August 2, 2021)

BOP, Inmate Death at FMC Ft Worth (August 3, 2021)

NPR, Some Older Prisoners Aren’t Eligible For Compassionate Release. Lawmakers Want Change (August 6, 2021)

Reason, The Pandemic Showed Home Detention Works (August 6, 2021)

– Thomas L. Root

Biden Lowers the Boom on Unvaccinated Feds (Which Includes about Half of BOP Employees) – Update for August 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.

JUST WHEN WE THOUGHT WE WERE DONE WITH COVID

The Delta variant of the coronavirus is gaining a foothold in the Federal Bureau of Prisons, just as it is in the rest of the country. As of yesterday, the U.S. was again charting 100,000 new cases a day. The BOP has gone from a low of 29 sick inmates three weeks ago (and only 108 staff sick a week ago), to last Friday’s numbers of 261 inmates and 151 staff down with COVID. The virus is present in 65% of all BOP facilities.

corona200313Yet only 52.5% of BOP employees and 55.3% of inmates have gotten vaccinated, according to BOP numbers. One prisoner complained last week, “Being in here with only half or less of the guards having gotten the vaccine is crazy. I feel like a trapped animal waiting for my turn to be killed.” Reuters reported last week that at FCI Oakdale – one of the first BOP facilities to suffer a COVID outbreak in March 2020 – “about 70% of its inmates have been vaccinated against the coronavirus – a rate more than double the 34% of Bureau of Prisons staffers there who have taken the shot, according to Ronald Morris, president of the Oakdale AFGE Union Local representing BOP workers.

“The low rate reflects how responses to COVID-19 – whether getting vaccinated or wearing face masks to slow transmission – has turned into a partisan issue in the United States,” Reuters reported, “with many Republicans rejecting both.”

That may be changing. Late last week, President Biden ordered all federal employees and contractors – including the BOP – to attest to their vaccination status or be subject to masking, social distancing, and COVID-19 testing requirements.

“Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a once- or twice-weekly screening testing requirement and be subject to restrictions on official travel,” the White House said in a fact sheet on the new policy, which it released Thursday afternoon.

Good luck enforcing that on the BOP staff.

Unconfirmed reports have at least one BOP facility announcing that by the end of the month, all unvaccinated inmates will be put in special unvaccinated units with limited recreation, no jobs, and social-distanced education. Now, it seems BOP employees are going to be feeling the effect of restrictions arising from their refusal to be vaccinated.

communications210802Meanwhile, in a master example of understatement, the Government Accountability Office last week issued a report on the BOP’s coronavirus response, complaining of inadequate COVID guidance communication to staff, and suggesting the agency should identify the practices that worked the best in order to prepare for future public health emergencies. “With about 46,000 positive inmate cases and 237 inmate deaths related to COVID-19 as of May 2021, and nearly 7,000 staff cases and four staff deaths related to COVID-19 as of May 2021, COVID-19 has highlighted key opportunities for BOP to better protect staff and inmates in response to the current pandemic and any future public health emergencies,” said GAO.

stupid160711The study said BOP staff reported confusion in how to implement BOP’s guidance. The Department of Justice’s Office of Inspector General surveyed BOP staff and reported that of the 59% of BOP employees responding to a survey thought BOP’s guidance was not clear. “Routinely evaluating how it communicates its COVID-19 guidance to staff, and modifying its approach as needed based on staff feedback, would help BOP ensure that staff can understand and effectively implement the protocols for COVID-19 and any future public health emergency,” the GAO said.

Forbes reported last week that over 400 inmates were transferred in July to FDC Miami, a facility that usually gets fewer than 100 inmates each month, many for court proceedings at the nearby federal courthouse. “The result of the inmate transfers has been 19 inmates associated with the transfer into FDC Miami have tested positive for COVID-19 and there is concern from BOP union representatives that this represents a huge challenge for both staff and inmates,” Eric Speirs, AFGE Local 501 President, told Forbes. “The decision to send this number of inmates in here over such a short period of time is reckless and adds to other pressures we already have here in Miami.”

Reuters, Vaccinated prisoners, unvaccinated guards illustrate Biden’s tricky road (July 29, 2021)

Federal News Network, Federal employees must attest to vaccination or submit to testing, per new Biden policy (July 29, 2021)

Government Executive, Coronavirus Roundup: Pandemic IG Asks for Expansion of Jurisdiction Again; GAO Looks at Contracting and Federal Prisons During COVID (July 30, 2021)

GAO, BOP Could Further Enhance its COVID-19 Response
by Capturing and Incorporating Lessons Learned (July 29, 2021)

Forbes, Bureau Of Prisons Transfers Hundreds Of Inmates Into Miami’s COVID-19 Hotbed (July 30, 2021)

– Thomas L. Root

BOP’s COVID Comeback – Update for July 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.

COVID’S BACK, AND THE BOP’S GOT IT

It wasn’t even three weeks ago that the BOP was doing a happy dance about having delivered the 200,000th shot of COVID vaccine. Only 29 inmates and 130 staff had the coronavirus, and only half of the institutions had a case.

coviddelta210730Then came the COVID-19 Delta variant. As of last night, 236 inmates and 145 staff at 79 facilities were sick. One out of four of those cases is at FCI Texarkana, where the Centers for Disease Control and Prevention is reportedly looking at why Delta has gained a foothold.

The Delta breakout comes amid increased concerns over slowed vaccination rates among prisons corrections staff.

The Crime Report last week said, “prison staff have refused the vaccine in vast numbers, leaving entire prison populations — and surrounding communities — at risk.” According to the report, only 48% of prison staff members nationwide had received at least one dose. As of last Friday, the BOP staff vax rate was 52.4%, slightly lower than the 54.8% inmate acceptance of the vaccine.

Unvaccinated officers travel between, bringing the virus with them, according to Anne Spaulding, an associate professor in epidemiology at Emory University. Sick officers can also cause staff shortages (already a serious BOP problem), which reduces programming, recreation, and visitation. “It’s going to affect the mental health of those incarcerated, who already have restricted lives,” Spaulding said.

stopvax210730Yesterday, President Biden issued a directive that requires about 2 million federal employees to disclose whether they’ve been vaccinated against COVID-19 or else submit to regular testing, as the highly transmissible Delta variant drives up new infections nationwide. That number would include the approximate 19,000 BOP employees who have so far refused the shot.

Federal workers and on-site contractors will have to attest to their vaccination status, the White House said. Those who don’t must wear masks at work regardless of their geographic location and get tested once or twice a week for Covid-19. Employees who don’t disclose being fully vaccinated also will be subject to work travel restrictions and must physically distance from colleagues and visitors, the administration said.

Given that numerous inmate reports I’ve gotten say that BOP staff widely ignore mask and distancing mandates, enforcement of this should be interesting to watch.

BOP COVID-19 statistics website (July 29)

KTBS-TV, Shreveport LA, Coronavirus cases rise at FCI Texarkana (July 19, 2021)

The Crime Report, Is Anti-Vax Movement Gaining Traction Among Corrections Staff? (July 12, 2021)

Politico, Biden rolls out aggressive plan to jump-start vaccination (July 29, 2021)

– Thomas L. Root

BOP Healthcare: No Experience Required – Update for July 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.

BOP HEALTHCARE TAKES IT ON THE CHIN

The Bureau of Prisons’ healthcare system took some hits last week.

BOPkickme210707First, from the “Crime Pays – If The Victim is the BOP” department: NaphCare – a private company that boasts it offers “proactive, preventative medical and mental health care providing community-standard of care in jails and prisons” – demonstrated how to defraud the BOP without consequence. NaphCare overbilled the BOP by “submit[ing] inflated claims for evaluation and management services.” And, after stealing at least $690,000 from the BOP, not only are there no criminal prosecutions, but NaphCare’s contract continues without interruption. All it has to do is pay it back.

Try that one with the judge on your next fraud indictment.

The Dept. of Justice announced last week that it had settled a False Claims Act proceeding against NaphCare by agreeing that the company could pay back $694,000 without admitting that it had done anything wrong. The “anything wrong” was a scheme whereby its employee physicians occasionally did not indicate the type of service performed on an inmate when they completed onsite visit sheets. When that happened, a NaphCare employee would fill in a code for a more expensive medical service and bill the BOP accordingly.

The scam went something like this: the NaphCare doc treats Ira Inmate for an ingrown toenail but fails to code it on his report turned into the home office. A NaphCare staffer sees the blank, and inserts the code for “heart transplant.” NaphCare charges a bit more for heart transplants.

The government caught NaphCare pulling the grift at USP Terre Haute and USP Victorville. The settlement agreement suggests NaphCare did it elsewhere, too, and has to report other improperly-billed costs within 90 days. In other words, the $694,000 at two facilities may just be the tip of the iceberg.

As an old law partner of mine liked to say, “no thief steals only once.” Or twice, in this case.

quackdoc210707So how do you run a billing scam on the nation’s chief law enforcer? Well, when the BOP’s healthcare system run by a former correctional officer without healthcare credentials, it is apparently not that hard. The Marshall Project reported Thursday that the senior official responsible for overseeing health care, safety, and food service in all of the BOP’s 122 facilities is Michael Smith. Mr. Smith (don’t call him “Dr.”) is a community college dropout who started his career as a CO in 1997. Smith directs three national program areas: medical, environmental and safety compliance/occupational health, and food service.

“I would seriously question his understanding of science, but he was a nice guy,” said Bill Axford, union president at FMC Rochester, where Smith previously worked as an associate warden, told The Marshall Project. Axford said when he once raised concerns with Smith that radon, an odorless radioactive gas that can cause lung cancer, could pose a danger to parts of the prison, Smith initially dismissed the potential threat, telling Axford that “radon’s not real.” Axford said that on another occasion, Smith told him that sunscreen, not the sun, caused skin cancer.

Junk Science210707Union leaders, prison health care workers, and advocates for prisoners’ rights said it is troubling that the people leading the BOP Health Services Division during the COVID-19 crisis lacked medical licenses. Nearly 50,000 federal prisoners tested positive for COVID-19 as of last week, and at least 258 have died. The BOP came under fire last year from politicians and union leaders for pressuring guards to come to work sick, failing to follow its own pandemic plan, and buying knock-off N-95 masks. “They spent $3 million buying UV portals,” one official added. “They said these killed the coronavirus — but they weren’t FDA-approved.”

“This is why our agency is broken,” said Joe Rojas, a national union leader who works at FCC Coleman. “You have people who are unqualified and you have a medical pandemic, but the leadership has zero medical background.”

“A great many of the people who ever had COVID, they were never tested,” complained Dr. Homer Venters, a former chief medical officer of the New York City jail system who inspected health conditions in prisons around the country over the past year, some as a court-appointed expert. “In most prisons, it ran through these places like wildfire.”

One man housed at a low-security federal prison compared the BOP’s public data to what he was seeing inside. At least half of his unit fell ill, he said, but the Bureau’s data didn’t reflect that.

“For the first year of the COVID, they never tested anybody in my institution unless they had a fever,” an unidentified BOP prisoner told the Associated Press. “The easiest way to not have a positive at your institution is to not test anybody.”

Sitdown210707In the pandemic’s early days, the AP said last week, testing within the BOP was limited, and staff members at some prisons were told there was no need to test inmates. The DOJ Inspector General found that, at some facilities, inmates who tested positive were left in their housing units for days without being isolated.

The concern is not just academic. The highly transmissible COVID-19 Delta variant is now in every state, and is set to cause another COVID-19 surge. The Atlantic last week said, “Vaccinated people are safer than ever despite the variants. But unvaccinated people are in more danger than ever because of the variants. Even though they’ll gain some protection from the immunity of others, they also tend to cluster socially and geographically, seeding outbreaks even within highly vaccinated communities.”

COVIDvaccine201221As of last Friday, 53.5% of inmates and 52.0% of staff were vaccinated. One BOP union official, who has not taken the vaccine yet, said, “I don’t trust the agency. I’m not putting my health and safety in the hands of the BOP.” As for the unvaccinated inmates, Dr. Venters told the district court hearing litigation over FCC Lompoc that many inmates who had refused the vaccine “reported that despite having questions about the vaccine and their own health issues, these questions were not addressed during the vaccine offer or afterward… The CDC has entire toolkits and guidance documents designed to increase vaccine update, but the basic foundation of these efforts is engaging with patients… Many of these high-risk patients were initially offered the vaccine 3 or 4 months ago, and the insistence by BOP leadership that their very valid and predictable questions and concerns go unaddressed during this time significantly increases the risk of preventable death from COVID-19.”

Dept. of Justice, Prison Health Care Provider Naphcare Agrees to Settle False Claims Act Allegations (June 25, 2021)

Settlement Agreement between DOJ and NaphCare (June 25, 2021)

The Marshall Project & NBC News, Prisons Have a Health Care Issue — And It Starts at the Top, Critics Say (July 1, 2021)

Chicago Sun-Times, Despite COVID’s spread in prisons, there’s little to suggest they’ll do better next time (June 30, 2021)

The Atlantic, The 3 Simple Rules That Underscore the Danger of Delta (July 1, 2021)

Second Report of Dr. Homer Venters, Docket 239, Torres v. Milusnic, Case No 20-cv-4450 (C.D.Cal.), filed May 12, 2021

– Thomas L. Root

A Couple of Odds and Ends – Update for July 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.

shorts210702WE’VE GOT THE SHORTS

COVID Numbers: The BOP reported 31 inmates and 137 staff sick with COVID as of yesterday. The virus was still in 64 institutions. As of last FridaY, the agency said 51.9% of its staff and 53.1% of inmates have been vaccinated.

As I have previously reported, no one trusts the BOP numbers.

BOP, COVID-19 Coronavirus

Judge Goes After Marshals: US District Judge Charles Kornmann (DSD) levied criminal contempt charges against three senior US Marshal officials last week arising from his demand to know whether Marshals in his courtroom have been vaccinated against COVID-19.

angryjudge190822The charges stemmed from an incident last month in which the Judge asked a deputy marshal whether she had been vaccinated. When she refused to answer, Kornmann ordered her out of his courtroom. The Marshals responded by removing three defendants awaiting a hearing from the courthouse, in what Judge Kornmann described as a “kidnapping” that disrupted the court’s work.

The US Attorney for South Dakota has refused to prosecute the criminal contempt citations. As of Wednesday, Judge Kornmann had appointed a Rapid City, South Dakota, private attorney to try the case, and the Judge had recused himself. The Judge described the contretemps as follows:

The Department of Justice, acting through the Marshal Service, has apparently adopted a public policy to the effect that DOJ policies may trump lawful federal court orders. This cannot be permitted. Despite some public confusion, this case has nothing to do with requiring anyone to be fully vaccinated.

Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, wrote in the Volokh Conspiracy blog that

recusal seems like an obvious move. This judge has clearly made up his mind. The case is so personal. There is no pretense of objectivity at this point. The case is styled United States of America v. John Kilhallon, et al. But the Plaintiff is not the United States. It is a single judge who abused his discretion. Judge Kornmann makes Judge Emmet Sullivan seem reasonable by comparison.

As for me, I really don’t know who to cheer against in this one. But I am pretty sure I can identify the losers: those federal pretrial defendants sitting in local jails waiting for hearings that will be delayed by this kerfuffle.

Washington Post, Federal judge accuses three senior law enforcement officials of criminal obstruction (June 14, 2021)

Jamestown Sun, South Dakota’s acting US Attorney won’t participate in contempt of court case against US marshals (June 25, 2021)

The Volokh Conspiracy, Update from South Dakota: Judge Kornmann Appoints Special Prosecutor To Try U.S. Marshals For Contempt (June 30, 2021)

– Thomas L. Root

Will BOP Director Carvajal Be The Next One to Be Sent Home? – Update for June 29, 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.

SOME BOP HONCHOS GET EARLY RELEASE, AND CARVAJAL MAY BE NEXT

hitroad210629The Associated Press reported last Wednesday that two Federal Bureau of Prisons Regional Directors have been relieved of their posts. Senior Biden administration officials are also considering replacing Director Michael Carvajal, whom the AP describes as being “at the center” of the “beleaguered agency’s myriad crises.”

The discussions about whether to fire Carvajal are in the preliminary stages and a final decision hasn’t yet been made, AP said it had been told by two people familiar with the matter. They were not authorized to publicly discuss the internal talks and spoke on condition of anonymity.

However, AP reported, “there’s an indication that the bureau is shaking up its senior ranks following growing criticism of chronic mismanagement, blistering reports from the Justice Department’s inspector general, and a bleak financial outlook.”

shocked191024Mismanagement at the BOP? I’m shocked.

“Since the death of Jeffrey Epstein at a federal lockup in New York in August 2019,” the AP claimed, “Associated Press has exposed one crisis after another, including rampant spread of coronavirus inside prisons and a failed response to the pandemic, escapes, deaths and critically low staffing levels that have hampered responses to emergencies.”

At least two regional directors, officials in charge of institutions in the South Central and the Southeast regions are also being replaced. BOP said the two regional directors — Juan Baltazar, Jr. and J.A. Keller — are retiring and had been planning to do so. But the sudden removal apparently was not the testimonial dinner and gold watch the two had anticipated: other people familiar with the matter said that neither had planned to leave for months and were told other officials were being appointed to their jobs.

On Wednesday, AP said, the BOP announced it was appointing wardens William Lothrop and Heriberto Tellez to the regional posts. Tellez, one of the “morons” recently referred to by Senior US District Judge Colleen McMahon, is currently in charge of MDC Brooklyn, the high-rise dungeon where a 34-year-old inmate was found dead in his cell as recently as a week ago.

Carvajal took over as director in February 2020, a month before COVID-19 began galloping through all 122 of the BOP’s facilities, infecting over 48,000 inmates and killing 255.

reel210629To be sure, the Director does not have a lot of highlights on his reel.  Nearly a third of BOP correctional officer jobs are vacant, forcing the BOP to continue to use augmentation, pressing medical, educational, office, and other staff into temporary CO duty.

Some question whether the staffing shortage will prevent the agency from maintaining security and at the same time carrying out its First Step Act programming duties. Over the past 18 months, 30 prisoners have escaped from federal lockups across the U.S. — and nearly half still have not been caught. The AP said prisoners have broken out at lockups in nearly every region of the country.

The Bureau has said it expects to bring on 1,800 new employees, and that its recent hiring initiative has been “a huge success.” But the AP reports the BOP has been slow-walking its hiring process, pausing most new hires until at least October. Officers at several facilities have held protests calling for Carvajal to be fired.

Late last week, Shane Fausey, national president of the Council of Prison Locals, AFL-CIO (representing 30,000 BOP employees) told Politico, “A clear and dangerous staffing crisis in the Bureau of Prisons, as explicitly outlined in a number of OIG reports and a recent scathing report by the GAO, has pushed this agency beyond its limits. Our employees and officers continue to endure unrelenting overtime and reassignments as the budgetary shortfall is preventing the hiring of much needed Correctional Officers.”

Meanwhile, President Biden’s detailed 2022 BOP budget request does not throw the BOP a life preserver. It includes a reduction of $267 million to reflect decreases in the BOP’s inmate population — a decrease that is a result, in part, of the CARES Act and increased use of the Elderly Offenders Home Detention program.

Jail151220But it’s not just the staff shortage and cash crunch. The BOP continues to be plagued by embarrassing allegations of misconduct. Although this predates Carvajal’s administration, a loaded gun was found smuggled into MCC New York not long after Epstein committed suicide. In the last month, the DOJ Inspector General issued a report about security lapses at BOP minimum-security facilities. Last week, the family of Jamel Floyd – who died a year ago at MDC Brooklyn after being pepper-sprayed by guards (only a few months before scheduled release after 15 years) – sued the BOP.

The Floyd suit came only a few days after a suit filed in Denver by BOP employees alleged that USP Florence special operations (SORT) team members fired pepper spray, plastic bullets, and pepper balls at their unarmed, administrative colleagues during a training exercise, in “inappropriate and dangerous” training episodes. Those failings prompted the DOJ Inspector General to recommend that some of its special operations training be suspended until better safeguards could be put in place.

“We believe that staff members at the Bureau of Prisons abused their coworkers in a way that undermines, or should undermine, the faith of the public in the ability to do their jobs,” said attorney Ed Aro, who is representing four current and former Bureau of Prison employees who say they were injured and traumatized by the training.

Last week, Vanity Fair published a long piece chronicling pretrial detainee Ghislaine Maxwell’s complaints about inhumane treatment at MCC New York.

And we end with an Eastern District of Virginia federal judge last week angrily and publicly blaming the BOP for the suicide death of a presentence defendant.

angryjudge190822The man had been sent to FMC Butner – a BOP medical and psychiatric center – for a mental evaluation. He was declared competent to enter a plea and returned to a local jail. After the man pled guilty but before sentencing, Judge T.S. Ellis III again became concerned about the man’s mental health and ordered him back to FMC Butner for further care.  BOP officials refused him unless the defendant was deemed incompetent again or required a new psychiatric evaluation. So the defendant went to a local jail where he took his own life on May 18.

At a hearing on June 24, the judge excoriated the BOP for refusing to take the man and failing to provide his medical records to the local jail. “If I issue an order, you must obey it,” he told prison officials who participated in the hearing. “Nobody in the Bureau of Prisons should ever decide they don’t want to obey my order because they think it violates the law. I trump their view of the law.”

Welcome to the culture of the BOP, Your Honor.

Associated Press, AP sources: Officials mulling ousting US prisons director (June 23, 2021)

Newsweek, Trump-Appointed Bureau of Prisons Director Michael Carvajal Could Be Replaced Amid Crises (June 23, 2021)

Midnight Report, Federal Bureau of Prisons Oust Regional Directors in South Central and Southeast Regions (June 23, 2021)

Time, After His 2020 Death in a New York Jail Cell, Jamel Floyd’s Family File Lawsuit Against Bureau of Prisons (June 24, 2021)

Denver Post, Supermax special ops team used pepper spray, plastic bullets on unarmed colleagues during training exercise, lawsuit alleges (June 23, 2021)

Politico, Union boss: Bureau of Prisons faces dangerous cash crunch (June 25, 2021)

Vanity Fair, Inside Ghislaine Maxwell’s Battle With the Bureau of Prisons (June 24, 2021)

Washington Post, Judge faults federal prison system after suicide of Great Falls man (June 25, 2021)

– Thomas L. Root

The Clock Chimes 13 Times for BOP COVID Response – Update for June 25, 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.

REMEMBER COVID? IT’S STILL AROUND IN THE BOP… AND PEOPLE ARE STILL DYING

The Bureau of Prisons reported 61 sick inmates and 136 sick staff in 65 facilities as of last night.

COVIDdeath201001

What is curious is that the BOP reported two more inmate COVID deaths last week.

One was from last December. With its usual opacity, the BOP reported last week that on “Friday, December 4, 2020, inmate Carlous Lindell Daily tested positive for COVID-19 at the United States Penitentiary (USP) Victorville in Victorville, California, and was immediately placed in medical isolation. On Wednesday, December 23, 2020, in accordance with Centers for Disease Control and Prevention (CDC) guidelines, Mr. Daily was considered recovered after completing isolation and presenting with no symptoms.”

[Editorial note here: The BOP always trots out the justification in notices like these that ‘we only said he was recovered because the CDC guidelines said he was recovered’. I have heard from too many inmates that ‘recovery’ consists of taking a temperature. The inmates are listed as presenting no symptoms because staff is careful not to ask the inmates about any symptoms].

To be sure, poor Mr. Daily must have been experiencing some continuing symptoms that the crack BOP medical professionals overlooked. Only five days after he was declared fit as a fiddle, “[o]n Monday, December 28, 2020, Mr. Daily experienced vomiting and an altered mental status, and while being treated, became unresponsive. Responding staff immediately initiated life-saving measures. Staff requested emergency medical services (EMS) and life-saving efforts continued. Mr. Daily was subsequently pronounced deceased by EMS personnel.”

Apparently, the Health Services staff was so crushed by losing their ‘recovered’ patient that no one got around to reporting his death for over five months.

clock210625I remember from years ago a judge patiently explaining to a greenhorn lawyer (me) about the 13th chime. The ’13th chime’ comes from the mythical case of Rex v. Haddock, recounted in book Uncommon Law by A.P. Herbert.  Some have attributed it to an earlier utterance by Mark Twain. Regardless of its origin, the ’13th Chime” doctrine holds that when a clock strikes 13 times, not only is the 13th strike itself discredited, but the very fact that there was a 13th chime raises doubts about the accuracy of the preceding 12. Twain allegedly said: “The thirteenth stroke of the clock is not only false of itself, but casts grave doubt on the credibility of the preceding twelve”.

The point is this: I have heard for months from inmate correspondents that people were dying at FCI XYZ of COVID, but FCI XYZ’s reported deaths never seemed to reflect inmate folklore. Mr. Daily’s demise is the second time in three weeks that the BOP issued a way-after-the-fact admission about a death that went unreported during the height of the epidemic. How many more of these unreported deaths – which, had they been reported in a timely manner, would have made BOP conditions during the pandemic look even direr – are lurking out there? What’s more, the under-reporting is consistent with the BOP practice many prisoners have reported of medical staff doing the ostrich thing, not inquiring about symptoms other than to take a temperature?

ostrich170228Certainly, under-reporting would not surprise The Marshall Project, which has been criticizing  BOP sleight-of-hand on case numbers for months:

The Federal Bureau of Prisons also had a policy of removing cases and deaths from its reports. As a result, by the spring of 2021, we could no longer accurately determine new cases in federal prisons, which had more people infected than any other system.

Now for the other death last week, Sherri Hillman, a pretrial detainee who died at the abattoir known as FMC Carswell, the BOP’s only women’s medical center at Fort Worth.

die210625The circumstances around the Carswell death were painfully similar to the April death of Martha Evanoff at that facility. According to the Fort Worth Star-Telegram, Sherri had been sent to Carswell while awaiting sentencing in Kentucky, after being hospitalized with COVID since January. “She was transferred to (Carswell) in Fort Worth because most people thought she would be getting better care there than in Kentucky,” her attorney told the newspaper.

Her mother said, however, “from what she was telling me, I just don’t think she was treated right.” Two other Carswell inmates told the paper said they heard Sherri crying out for help for several days from her cell on the medical floor. One woman, who is also staying on the medical floor, said she heard the shouting.

“Everyone on the floor heard her screaming for help for several days,” a witness, who did not want her name to be used out of fear of retaliation, told the Star-Telegram, “For days, they said she’s faking it and there’s nothing wrong with her, and they ignored her cries for help. She would say, ‘Please, somebody help me.’”

Another inmate reported to me, “The poor woman begged for 4-5 days for help and was told to ‘shut up’.”

Sherri died alone in her cell on June 14.

BOP, Inmate Death at Victorville (June 17, 2021)

BOP, Inmate Death at FMC Carswell (June 17, 2021)

Fort Worth TX Star-Telegram, Woman told mother, ‘I can’t do this anymore,’ before death at prison in Fort Worth (June 17, 2021)

– Thomas L. Root

“Did We Nail That Pandemic, Or What?” – Update for May 6, 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.

TELL US HOW WE’RE DOING

howwedoing210506The Dept of Justice Office of Inspector General announced last week that it would be conducting a second survey of BOP staff and a first survey of inmates to determine how well the BOP performed during the pandemic.

The results of the surveys should be illuminating.

And how are things now? As of last Friday, the BOP said it has given two doses of vaccine to about 35% of all inmates, and about 49% of staff. About 126 inmates are sick with COVID-19, and 164staff, with COVID still present in 67% of facilities, if BOP numbers can be believed.

numbers180327But can the numbers be believed? The Marshall Project and Associated Press, which jointly have been tracking how many people are being sickened and killed by COVID-19 in prisons across the country and within each state since March 2020, have given up on BOP numbers, warning that “our understanding of the full toll of the pandemic on incarcerated people is limited by the Federal Bureau of Prisons’ policy of removing cases and deaths from its reports in recent months. As a result, we cannot accurately determine new cases or deaths in federal prisons, which have had more people infected than any other system.”

Another federal inmate died of COVID last week, this one at FMC Devens. Paul Archambault contracted COVID-19 at the end of December but was declared “recovered” ten days later. The “recovery” label appears to have benefited record-keeping more than Mr. Archambault. Like a number of others before him, he died of the COVID-19 from which he had recovered.

rehabB160812In New York last week, U.S. District Judge Katherine Polk Failla granted compassionate release to an inmate at MCC Manhattan, ruling that a key part of her sentence was addiction treatment and care for other ailments. The judge said the BOP hasn’t provided it to the inmate, who was serving a sentence for a cocaine conspiracy.

“Due to the extreme lockdown conditions at the [Metropolitan Correctional Center] and [Metropolitan Detention Center], the inmate has been unable to receive mental health care, drug abuse treatment, and other important services that the Court envisioned her receiving while incarcerated,” the judge wrote. “The Court believes these services to be critical to her physical and mental health, and to her ability to reenter society as a productive and law-abiding citizen.”

DOJ Inspector General, Surveys of BOP Federal Prison Staff and Inmates (April 28, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 30, 2021)

BOP, Inmate Death at FMC Devens (April 29, 2021)

New York Daily News, Judge, inmate slam conditions at NYC federal jails in pandemic’s 13th month (April 26, 2021)

– Thomas L. Root

BOP’s Secret Home Confinement Memo Sows Confusion – Update for April 26, 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.

DUELING HOME CONFINEMENT MEMOS DRAW CRITICISM

A week ago, I wrote about a new Bureau of Prisons memo (which some said was really a Dept of Justice memo) expanding eligibility for CARES Act home confinement. I admitted that despite my efforts, I could not obtain a copy of it.

secret210426I’m not alone. FAMM was scrambling, inmates were scrambling, and even Ohio State University law professor Doug Berman, the dean of federal sentencing law if there ever was one, complained in his Sentencing Law and Policy blog last Tuesday that the memo has still not been released. That same day, Keri Blakinger of The Marshall Project released what purported to be the text of the memo, a well-meant but ultimately unhelpful post.

Meanwhile, my email was smoking. Inmates heard that the BOP had been told to send minimum-security inmates home even if they had not served half of their sentence, the standard that people with prior offenses of violence were excluded had been dropped… the institutions were rife with rumors. People complained that their case managers were stubbornly ignoring the new standards, that wardens were releasing internal memos that underpromised.

You remember the game “post office.” The message was whispered around the circle of kids until it returned to the source mangled beyond recognition. That’s what we had. And the blame can be laid at the bureaucratic feet of the Bureau of Prisons, which would classify road signs as “sensitive” and “FOIA exempt” if the agency could get away with it.

Thankfully, Washington, D.C., leaks like a screen door on a submarine. By Then, on Thursday, both FAMM and the Defenders Services Office of the Administrative Office of U.S. Court (the support agency for Federal Public Defenders nationwide) had obtained bootlegged copies of the memo – an April 13 release from Andre Mateviousian, Assistant Director of the Correctional Services Division, BOP – and posted them on the Internet. These posts, which are identical, appear to be the real deal.

So what changed? A couple of things. First, inmates with -300 and -400 series disciplinary reports shots in the last 12 months are not automatically disqualified. Second, inmates with “low” PATTERN scores are now eligible for CARES Act home confinement.

violence151213What didn’t change? At least a couple of things. First, if you have a prior conviction for a crime of violence (let’s say a bar fight back in 1985, when you were 21 years old and possessed a testosterone-addled brain), you are still disqualified from CARES Act home confinement (no matter that you’re doing 24 months for tearing the label off your mattress). Second, the BOP is adhering to its self-imposed standard that you have to have completed 50% of your sentence (or 25% of your sentence with less than 18 months to go).

So the Marshall Project text was wrong: prior violence still counts. The versions of the memo posted by FAMM and fd.org continue to say that “the inmate’s current or a prior offense” cannot be “violent, a sex offense, or terrorism-related.”

At the end of last week. FAMM President Kevin Ring wrote to the BOP complaining about its failure to officially release the memo. “I am writing to ask that you publish on the Bureau of Prisons’ (BOP) website any and all memos sent to wardens about the eligibility criteria for CARES Act home confinement,” Ring wrote. “The BOP’s failure to do so has created unnecessary confusion and frustration for incarcerated people and their families…”

There is not a bureaucratic reason on God’s green earth why the BOP could not have released the memorandum on April 13, 2021. Instead, the agency’s obsession with secrecy (or at least playing its cards close to the vest) generated a week’s worth of heat without light. In fact, if the memo had not been leaked to outside organizations, inmates would still be in a tizzy and families still confused.

winnie210426While I am on a rant, I should note the moment in BOP Director Michael Carvajal’s testimony two weeks ago before the Senate Judiciary Committee that made me shout “liar!” at my computer screen. That in turn caused my faithful and efficient office dog Winnie to cower under a table until I calmed down.

As I note, the new memorandum retains the 50%-of-sentence requirement. This is a standard that Attorney General William Barr never imposed. Instead, as you may remember, it was the BOP’s own fiat, added in the agency’s all-too-typical ham-handed way (with inmates who were literally walking out the door to return home being called back because of the new requirement).

When I heard Carvajal assure the Senators that all the BOP had done was to apply the AG’s home confinement criteria, I was disgusted at his prevarication and furious that the Senators were so ill-prepared by their staffs that no one called Carvajal out on the fib.

In Forbes last week, Walter Pavlo noted it as well. He too observed that the time-served requirement was not dictated by the Attorney General, but rather was

based on an internal BOP memorandum that stated it was screening inmates based on whether they had served 25% of their sentence with less than 18 months remaining or have served more than 50% of their sentence. The directive had little logic behind it because COVID-19 did not discriminate between those who had been in prison years or those who had just arrived. The result of the memorandum was devastating, leading to deaths and infections at everyone of the BOP facilities nationwide.

liar151213Testifying before the Senate Judiciary Committee two weeks ago, BOP Director Michael Carvajal said that “…any inmate that is eligible under the criteria presented to me by the Attorney General is on home confinement as we speak.” Pavlo called that misleading, noting that “what Carvajal failed to add were details of the internal memos that mandated that priority for a person’s transfer to home confinement be measured against the amount of time they had served…”

Carvajal’s statement was false then, and it is false now.

Sentencing Law and Policy, Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement? (April 20, 2021)

The Marshall Project, Document Cloud, Home Confinement Memo (April 20, 2021)

FAMM, BOP Home Confinement Memorandum of April 13, 2021 (posted April 21, 2021)

Federal Public Defender, BOP Home Confinement Memorandum of April 13, 2021 (posted April 21, 2021)

Sentencing Law and Policy, FAMM urges federal BOP to publish memos with home confinement criteria (April 23, 2021)

Forbes, Bureau of Prisons Director Testimony To Senate Judiciary Leaves Unanswered Questions (April 20, 2021)

– Thomas L. Root